Monday, December 19, 2005

On the Dangers of George Bush's Unconstitutional Wiretaps

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute.... But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

-- Justice Powell writing for a unanimous Supreme Court
United States v. United States District Court (1972) [via]

Impeach George Bush. Impeach him now. (As Brad DeLong would say.)


A Republican Uncle said...

Now this might be an impeachable offense: A POTUS, relying on a narrow reading of Art II, US Const. (inconsistent with that of all of his predecessors, by the way) refuses to allow the intercept and translation on a real-time basis of electronic communications between Al Queda operatives, and as a result, four commercial jetliners are highjacked and then crashed in the US -- killling thousands --all of which could have been prevented if we had had the intercepts.

Stephen said...

The question is not whether or not we can monitor Al Queda communications on a real-time basis. That's allowed under FISA (with retroactive warrants allowed if time is an issue, so it's not a question of efficiency either). The question is whether or not the President should have the authority to do this without supervision, or if he should have to go to a judge (when -- to repeat -- this does not hamper efficiency).

Actually, even that's overstating matters. If people really thought that the President had to do this without warrants for security reasons (say, that a new technology makes warrants effectively impossible, as some are speculating), then go to Congress and get the authority. So the issue isn't even warrants or no (although that should be an issue when Congress debates it, as should the issue of a check on Presidential authority). The issue is whether or not the President can unilaterally set aside the law based only on his own belief that it's necessary.

If he can, the constitution is meaningless and we live in a dictatorship. I prefer the constitution.

Impeach George Bush. Impeach him now.


PS: "inconsistent with all of his predecessors" -- I just don't think this is factually accurate.

PPS: Whatever happened to conservatives being suspicious of excessive government power?

a republican uncle said...

Did you read John Schmidt's Chicago Tribune piece I sent you?

Article II has long been viewed as conferring powers on the President that Congress, despite its best efforts, cannot limit or constrain.

To get on this left-wing impeachment bandwagon is silly. Stick to evolution, where you are right on.

Merry Christmas!

Stephen said...

Dear RU:

I read Schmidt's piece, and was unimpressed (and certainly unpersuaded). I think perhaps we should agree to disagree.

As for your Article 2 point, all I'll say is that it's begging the question. Of course the President has powers Congress can't take away; the question is whether or not warrantless wiretaps are among them. I think -- and the solid majority of the legal opinions I've seen claim -- that they quite clearly aren't. Though obviously this will be clarified if there's ever a proper investigation.

I think that, at the very least, the impeachment of Bush is both warranted and necessary; that this question needs to be explored with subpoena powers that can get at what he really did. I am open to the possibility that, once fully explored, he will be found to have acted within the law -- this is a reality-based blog, after all -- but I seriously, seriously doubt it.

Anyway, Merry Christmas to all you Central Standard Time folks too.