So first I thought I would share this interesting piece which gives a pretty complete overview of the legal arguments and is a bit lighter than my stuff. Some of you may want to check out this story which argues that the real motivation behind circumventing FISA is to do some kind of automated scanning of communications, i.e., their computers scan all the calls going to Afghanistan looking for certain words or phrases. Admittedly this would provide a more reasonable justification of the need for surveillance outside of FISA but if true it also guarantees that totally innocent people are going to get monitored as well and creates further difficulties in justifying this spying in violation of statue as a ‘reasonable’ search as the president must do for his commander-in-chief argument to hold water. However, I’m unsure if this is really the explanation and even if so the information we have on the program suggests that some people were monitored under this program just because their wasn’t enough evidence to meet even the weak FISA standard. This position is further supported by the administration’s claims they were monitoring suspected Al Qaeda members and their complaints that “the FISA process had become too slow.”(FBI Director Mueller) This is the same justification that Bush offers from circumventing FISA and it just wouldn’t make sense if the only surveillance at issue just didn’t fit into the FISA framework.

Regardless of whether or not you think this program is important for national security it doesn’t change the fact that the president violated the law. The President is not obligated to uphold the law when he thinks it is good and nothing in the constitution lets him circumvent a law he thinks imperils national security. If congress signed a law letting Osama live in Manhattan and banning the government from seizing him Bush couldn’t ignore it just because it imperiled national security. Congress made a judgement about the tradeoff between security and privacy. Bush doesn’t get to ignore it just because he disagrees.

Ohh and Senator Rockefeller’s letter to the Vice President should put to rest any idea that Bush was somehow running this program with the advice and consent of congress. Ignoring for the moment the fact that it is just as illegal for a small cabal of powerful congressmen and the president to violate the law this complaint undermines Bush’s claim the program was being overseen by congress. Since apparently Nancy Pelosi (the minority leader) also raised concerns it is just disingenuous to claim congressional oversight. Members of congress were informed but if its objections can’t effect any change it isn’t oversight.

I realize that the barrage of blog posts on this issue might be a little overwhelming but this is too important to let go. The administration is going to make like this is just another partisan controversy and hope everyone will assume the truth lies somewhere in the middle. Hopefully if the facts are waved in the public’s face for long enough they too will realize the President willfully ignored the law just because he didn’t agree with it and that a ‘nation of laws’ must punish people who violate the law.