So Phillip Sands, the author of torture team, is being interviewed on NPR as we speak about the use of harsh interrogation techniques at Guantanamo. Now I’m seriously bothered but many of the revelations about Guantanamo, particularly the possibility that we used harsh interrogation methods when we had strong reason to believe they wouldn’t be effective and that we kept people locked up despite strong reason to believe they posed no threat nor had committed no crime just to avoid looking foolish. Certainly the indefinite secret detention of people and the use of techniques like water boarding violates the spirit of both the US constitution and international human rights treaties whether or not they constitute technical violations. However, the suggestion that senior officials in the Bush administration, including Bush himself, face a real risk of being subject to criminal penalties by foreign nations is just absurd and actually encourages human rights violations. Moreover, the notion that merely suggesting that US law doesn’t bar certain kinds of harsh interrogation techniques is itself a war crime is flat out absurd.

Now is it possible that top members of the Bush administration will face prosecution for things they did in office? Yes, if later revelations stoke up sufficient public outrage they could face charges in the US but even that seems most unlikely. But the idea that Bush might end up being arrested during a trip to Europe after he leaves office is simply laughable. It’s one thing for the Europeans to arrest the former dictator of Chile and prosecute him for crimes that he had legal immunity for in Chile. Not only was there enough support in Chile for him to be (unsuccessfully) prosecuted but a country like Chile has much less international influence than the United States. Given the attitudes of US citizens toward international courts and US independence it’s simply not plausible that we wouldn’t make a fuss if another country tried to arrest Bush after he left office. It’s one thing to arrest a foreign dictator another to arrest a US president whose actions were supported by a substantial fraction of the populace. Even many people who might favor a prosecution in the US would recoil at the idea that the Europeans or anyone else could tell us what we could and couldn’t do. Arresting a former US president is the kind of stupid idea that could lead to a war (but won’t since no non-symbolic arrest will happen).

Moreover, perpetuating these simplistic attitudes about international law actually encourages human rights violations. Despite the fact that Chinese leaders and Kim Jung-Il have certainly committed human rights violations, including some that likely amount to torture, there is no serious suggestion that they will be prosecuted. This is appropriate as productive engagement is much more likely to improve the human condition than a hard line attitude. However, foreign leaders, knowing they won’t have the protections former US presidents enjoy, aren’t stupid will react accordingly. If they see that leaders of repressive regimes will be protected from prosecutions but former leaders of more open societies are not they have a substantial incentive to cling to power. On the other hand if we save war crime prosecution for truly horrific acts (genocide etc..) it might persuade dictators to soften their tactics or even give up power in exchange for pledges of immunity.

Finally I have to say I’m boggled by the idea that merely expressing a legal opinion about what US law allows could make one a war criminal. I mean if Yoo is supposed to be a war criminal for suggesting that water boarding was legal wouldn’t the human rights activist who protests the lack of a law preventing a US president from ordering water boarding be equally guilty? Now of course a legal opinion from the president’s legal advisers has legal significance that the opinion of a human right’s activist lacks but surely that legal significance doesn’t make it a war crime not to lie. If that human rights protestor was appointed as a legal adviser to be president he surely would not suddenly then be obligated to lie and pretend there was a law that barred water boarding when there was not. But if it isn’t criminal (or even immoral) for a legal advisor to say that water boarding isn’t currently illegal but really should be outlawed surely it can’t be criminal for him to mistakenly claim it isn’t currently illegal.

Now certainly, as we saw during the Nuremberg trials, if a lawyer goes beyond observing that something is legal to actively participating in decisions that choose to implement it than things are different. I suspect the intuition that Yoo has committed war crimes comes from people’s assumption that he deliberately twisted the law to achieve his preferred policy outcomes. However, as hard as it may be to believe, it’s far from clear that Yoo consciously did anything of the kind and it would certainly be near impossible to prove any such thing even if you think that water boarding rises to the level of a war crime.

Over the past week there has been an explosion of outrage against President Bush’s plan to cap State Children’s Health Insurance Program (SCHIP). This program is intended to help states fund insurance for poor children and enrollment was originally restricted to double the federal poverty line. However, the Bush and Clinton administrations issued waivers allowing states to be reimbursed for coverage of more children (up to at least 3.5 times the poverty line). In Bush’s most recent budget he proposed requiring that states enroll 95% of children below twice the poverty line before they can enroll children above 2.5 times times the poverty line.

As one might have guessed there has been an onslaught of editorials and letters to the editor acusing Bush of pandering to the insurance industry, putting a narrow ideology over the health of our children and otherwise just being an all around bad guy who doesn’t care about our kids. Despite my distaste for fox news they had the only story I found that explained the administration’s position that this is really an attempt by the states to get “the federal government to bear the brunt of expanded health coverage and then call it progress.”

Now I tend to favor something like national health care¹ and I agree and sympathize with the point that, “people are fed up with a system full of potholes and twists and turns in coverage along with control issues that make patients mere pawns in the game.” However, SCHIP is hardly a universal solution that gets rid of potholes and twists and hopefully no one is dumb enough to try and expand a stop-gap solution for poor kids to everyone instead of implementing a well architected nationwide plan². Yes it’s wonderful that there has been “a heartwarming drop in the number of uninsured children,” and I don’t think we ought to reverse this trend but none of this shows that the feds ought to pay for some states to insure higher income children.

In this case at least the Bush administration is totally correct. Nothing prevents states from choosing to insure children above 2.5 times the federal poverty line and unlike a true national solution to the health care problem I can’t make out any economies of scale that would make this more efficient on the federal level. I might feel better about this program if it was poor states that were receiving the wavers to extend the federal program but it is states like New York, New Jersey and California who seem particularly eager to extend the coverage to higher incomes. These states argue that cost of living varies by area so children who should really count as poor may be well above the federal poverty line. That may be true but those states where the cost of living is high are also those states with the most money.

Now I think one could criticize the choice of 95 as the percentage of children below twice the poverty line who must be enrolled before the feds will chip in for insured children about 2.5 times the poverty line but at least this policy strongly incentivizes states to guarantee that poor children are actually covered. The fact that 30% of those eligible are not enrolled may show that 95% is an unrealistic goal but it also makes a strong case for conditioning greater support for better off kids on greater enrollment of the poor. I’m open to the argument that congress should extend this program to 3 or 4 times the poverty line for every state who enrolls some (perhaps more reasonable) target percent of the most needy children if only to incentivize the more reluctant states to provide this benefit. However, cutting off an exception program whose primary effect seems to be to transferring money from poor states to rich ones hardly makes one a monster.

Basically I find it really annoying when politicians use this kind of save the children rhetoric to disguise their own unwillingness to do the same. If Bush’s goes through the states could just raise their own damn taxes and fund it if they really think it is important. Spitzer in particular will show himself to be a huge hypocrite if he doesn’t have the balls to suggest the state pay for this insurance after his rhetoric against Bush. I’m already pretty annoyed at him for linking Bush’s failure to spend on this insurance policy to the war. Bush may have been totally fucking incompetent about getting us into war but we are their now and his belief that pulling out now would just make things worse is hardly unreasonable. Spitzer may disagree with Bush about the wisdom of staying in Iraq but suggesting Bush is being extra unreasonable because he thinks that hundreds of thousands (maybe millions) of Iraqi lives are more important than insuring some more kids in the states annoys me. In any case whatever you think about the particular arguments here it’s pretty obvious that this sort of ‘Save The Children’ rhetoric is hardly a good way to decide policy.

The more I see in politics the more I think those studies (can’t remember where I read them) suggesting that the benefits of government aid flow primarily to the middle class are right on the money. I mean there is a fuckton more we could do for the genuinely poor kids and those potential programs trade off against money we might spend on these less poor children but which one are people clamoring for? God I hate democracy.

So despite pretty vehement opposition to the Bush administration I’m actually quite glad to see Bush commute Libby’s sentence. It’s not that I don’t think the administration didn’t act repugnantly in the whole Valerie Plame affair but Libby seems to be nothing more than a loyal staffer who got stuck in the hot seat. It’s Bush and Cheney who bear the responsibility for this whole business not Libby and by commuting Libby’s sentence Bush leaves little doubt where the blame lies. I don’t see much deterrence value in convicting him of this sort of crime. The only thing a prison sentence would really teach white house staffers is to say they ‘don’t recall.’ A lesson Gonzales seems to have already learned.

Besides I still have some misgivings about the whole business of obstruction charges. By no means could this investigation be called a witch hunt but where should one draw the line for crimes like lying to an investigator? What if the prosecutor asks you if you were cheating on your wife? Or asks a political figure if they lied in their campaign promises? Sure the questions likely have to be material to a genuine investigation but when is a crime significant enough to prosecute someone for not revealing compromising information? I’m troubled by the possibility that future parties could use investigations of minor crimes to put administrations between a rock and a hard place as even a direct refusal to answer can be an answer. Frankly I just don’t know the answers to these questions.

I guess I’m just not sure Libby needs to go to jail so I’m happy that he doesn’t have to and that Bush is effectively going to take the blame not his unfortunate subordinate. I mean all other things being equal it’s sad to see someone go to jail.  I don’t think that white house staffers should get special treatment but then again I feel that prosecutors have too much power and discretion generally and that we many of our sentences are far too high.

I’m not convinced by the reliability of the sources but the claim that Rove is being indicted is too good to pass up.

Thanks to Orin Kerr for the pointer.

UPDATE: More info is casting doubt on the claims. To bad but not surprising.

So the latest big topic is immigration and president Bush’s support for a guest worker program. This is a beautiful strategic move by the president. The way immigration concerns cut across party lines and are so deeply emotional for both sides makes it a perfect change of topic to distract people from his illegal wiretapping and other failures. However, this topic also exposes the hypocrisy of so many republicans and even democrats as well.

Those opposed to amnesty for current illegal residents or demanding tough laws on immigration enforced against employers have a tough time explaining why these illegal residents don’t deserve to be given the same benefits and consideration from the US government as citizens. Since they don’t want to admit they are just selfishly protecting interests of ‘people like them’ they frequently buttress their position with strong rhetoric about the law and being law abiding.

Now it might be beyond the average American to remember the republican’s idealistic talk about the ‘rule of law’ from the Clinton impeachment and contrast it with the current defense of president Bush’s illegal wiretapping or they may simply think Clinton’s impeachment was a bad episode and we learned our lesson but hopefully even they can see the tension when public figures are denouncing censure for the president’s willful and unnecessary violation of the law in one breath and raving about the rule of law and not ‘rewarding’ illegal immigrants in the next. I don’t have much hope but it would be very satisfying in the anti-immigrant republican congressmen got trapped with questions like, “You believe in not tolerating the illegal behavior of poor immigrants does this mean you support impeachment or censure for the president?” After the standard mumble about the president not violating the law it could be followed up with, “If it was shown the president violated the law and went opinion shopping to justify his acts would you support impeachment or censure then?”

Sigh, I know it is too much to hope for but it just drives me mad when I hear all these republicans (and some democrats) ranting about the law when immigrants come up but then when asked about Bush’s wiretapping say they aren’t really concerned about illegal wiretapping if it helps catch terrorists. Is enforcing the constitution and preventing the president from seizing power even when used for ‘good’ that hard a principle to understand? I guess I just I still haven’t really accepted that most people really don’t make any attempt to reason or justify any of their beliefs and don’t feel any obligation to distrust (empirical) beliefs they haven’t justified.

There is an interesting new post over on Balkinazation describing how the Bush administration cut anyone who had qualms over the treatment of Guantanamo inmates out of the loop. In fact they apparently even issued reports in these individuals names while leading these people to believe that the reports had been canceled.

It is this sort of behavior which makes the Bush administration truly dangerous. Sure I’m not a fan of Bush’s conservative policies or his tax cuts for the rich but these issues are to a great extent a distraction. Any administration makes a huge number of decisions that never attract public attention but the consequences of these decisions can be significant, both to the people involved and the country as a whole. The health of our government and way of life depends on these decisions being made well and this can not happen when dissident views are simply shut out or ignored. Sure sometimes one needs to go forward with a decision despite the fervent objections of a few people but it is important that the decision makers hear those objections and consider them. Clinton, for instance, had a policy of listening to dissenting views and hearing them argued out in front of him and I doubt (though I could be wrong) that previous republican administrations had this sort of lock-step attitude but whether or not it has past precedent it is very dangerous.

Also a few final words on the cartoon business. My last post should not be taken as any kind of softening of my attitude on the protesters or those demanding restrictions on free speech. Nor should it be taken as any kind of endorsement of a social standard which takes it as inappropriate to criticize someone’s religion, even if that religion is singled out for criticism on its own. While I tend to think that the difference between Muslims and Christians mostly stems from the fact that many Muslims still lie in old-fashioned patriarchal and tribal cultures it is perfectly appropriate to ask whether Islam plays any particular role in encouraging terrorism. (I’m sure both Christianity and Islam both do so to some degree but I’m unsure if Christianity would be any less bad in the same circumstance).

I most certainly do not support any type of social rule of conduct which demands any criticism of Islam be balanced by a criticism of Christianity or Judaism nor do I think that the cartoons in question went to far in any sense. I still believe that some Muslims’ overreaction to the cartoons should not be rewarded. All I am saying is that (assuming Jyllands-Posten didn’t have inappropriate motivations) the choice to publish the cartoons in this fashion may not have been particularly good strategy and ultimately may cause some harm without aiding the cause of free speech substantially.

In other words my attitude toward Jyllands-Posten is the same as my attitude towards google would be if they had chosen to stand on principle and not censor search results for the Chinese (assuming valid motivations in both cases). Just as it would inappropriate to hypothetically scold google because they didn’t realize their principled stand might actually harm free expression in China it would be inappropriate to scold Jyllands-Posten because their principled stand to publish completely reasonable cartoons might cause similarly negative consequences.

When the constitution was written the founders were wisely concerned about giving an emotional and uninformed electorate the unguided power to elect national officials. This concern (and desire to protect small state power) lead them to adopt the electoral college as an intermediate body that could temper the people’s preferences with knowledge and wisdom. While that formal system is mostly still in place over the last two hundred some years more and more political power has been devolved to the people without any serious debate about how letting a public only casually familiar with the issues and swayed by strong emotions would affect our nation. I don’t know what a better system would look like but I am becoming more and more convinced that the people at large simply do not have the time, inclination, knowledge or temperament to decide complex issues of law or scientific policy.

The nature of partisan identification prevents most people from even bringing their rational faculties into play. It is no more reasonable to expect most people (not me of course) to objectively evaluate the wisdom, danger, morality, or lawfulness of Clinton’s or Bush’s actions then it is to expect them to objectively rate the intelligence or social worth of their own children. We all know liberals who are willing to excuse Clinton’s obvious deception under oath but claim Alito’s apparently honest mistake in the Vanguard recusal is an unforgivable moral lapse or conservatives who were willing to impeach Clinton for a minor deception in a private case but somehow fail to be outraged at Bush’s deception or Gonzales’s lies under oath about the spying program. We might optimistically try and dismiss these sort of biased evaluations as merely Machiavellian tactics undertaken to further one’s views or party but a recent study employing fMRIs suggests that people evaluate statements by partisan figures without even engaging the critical rational parts of their brain (this is a simplification read the link).

This situation is bad enough when the public is asked to make decisions about simple topics it (mostly) understands, e.g., did Kerry change his position on Iraq. When faced with issues requiring technical knowledge, subtle distinctions, or abstract analysis the situation is basically hopeless. Nothing illustrates this problem as clearly as the public reaction to Bush’s domestic spying program. Despite the belief by an apparently strong majority of independent constitutional experts that the domestic spying program is unconstitutional recent polls reveal that something like 50% of the populace does not believe Bush acted wrongly. Though the arguments Bush offers in his defense are astonishingly weak and often deeply misleading if one is emotionally predisposed to look for a justification they provide an easy excuse that lets people stop looking and thinking and feel indignant about ‘democratic’ criticism.

I am currently listening to Gonzales’s testimony before congress. Though Senator Specter oddly refused to put him under oath he is being amazingly disingenuous and coming up with ridiculous reasons to avoid answering questions. I particularly liked when he said that the reason the revelation of the NSA program endangered national security was that it reminded terrorists we were listening to them. Also good was when he said that his claim during his nomination hearings that the administration would not pursue wiretapping in violation of criminal statute only meant that the administration would not pursue wiretapping in violation of constitutionally valid criminal statute, i.e., he was stating only the trivial fact that the administration would claim to have constitutional authority to do whatever wiretapping it actually undertook. However, what was particularly egregious was his continued invocation of Clinton’s search of the Ames residence.

This claim has been a key plank of the republican defense. However, this situation has been repeatedly documented as NOT HAVING BEEN ILLEGAL AT THE TIME. For the first time I was actually quite impressed with Feinstein in these hearings for demolishing this fallacious argument as well as the related claim that Clinton’s attorney general argued for the same authority as Bush is claiming. Clinton’s administration simply claimed the right to conduct foreign intelligence searches in absence of congressional regulation not in violation of it. In fact I have actually been positively impressed by most of the congressmen in this hearing. Sure the republicans have been helping the administration throw up smoke screens but even they have been demanding to know (though Gonzales evades the questions) how there can be any limit to presidential authority under the administrations argument. All the congressmen, republican or democrat, seem to find the AUMF argument just laughable.

I’m just at a complete loss as to what could be done about this issue. It doesn’t seem to matter that Gonzales’s arguments are totally without merit and most of them are just laughable or simply misleading. No amount of legal experts weighing in on the other side seem to make the slightest difference. The citizens at large are either blinded by partisan support or simply not willing/able to evaluate the arguments in detail. Many people just don’t seem to understand the difference between the legality of the president’s action and the wisdom of allowing this sort of wiretap. I, like many congressional leaders, think this sort of surveillance may be justified but this sort of distinction seems lost on much of the public. If they couldn’t understand Kerry’s position that the president should have had the power to wage war on Iraq (so he could compel compliance) but he was wrong to use it I don’t see how we can hope they will deal sensibly with this sort of issue.

I simply don’t think our form of government is able to deal with this sort of situation. When Andrew Jackson ignored the supreme court order and moved the indians our institutions were unable to stop him and I see little reason to think things will be different in this situation. I would like to believe that some form of structural reform is possible to remedy this defect but frankly I don’t see how.

I know I promised to write less about this spying scandal but over the break I was worried to see that the outrage over this scandal has been fading and the administration seems to be effectively portraying this as just another partisan squable over privacy vs. security rather than an issue of lawbreaking.

So some of you might have thought I was being a bit excessive when I advocated impeaching Bush. However, this article from Nixon’s whitehouse counsel points out the similarities between Bush’s action and Nixon’s wiretapping activities. In particular it observers that Nixon’s wiretapping of domestic groups despite a plausible defense of national security warranted an article of impeachment. While it is certainly true that Nixon’s wiretapping was egregious in a way that Bush’s wiretapping does not seem to be I’m not sure if this cuts any constitutional ice. Nixon, just like Bush, was combating a terrorist threat by radical groups and claimed this amounted to a state of war giving the executive special powers. Even in a situation where the matter unambiguously involved terrorism the supreme court unanimously rejected this argument.

Of course it would be disingenuous not to point out that the decision dealt specifically with domestic wiretapping not the surveillance of foreign powers. However, the significance of this similarity lies in the recognition that there is no difference of kind between Bush’s actions and those of someone like Nixon (acting now in light of FISA). If Bush had ordered the warrant-less wiretapping of all international calls by greenpeace members because he thought they might be somehow connected to eco terrorists he would not have violated any other laws. Greenpeace, after all, is an international organization which the President might genuinely believe is a terrorist organization so it would be the same FISA provisions he would be violating. If violating an explicit statute is not enough to trigger impeachment it is difficult to see what could justify impeachment even in the really egregious cases.

One might simply respond that congress needs to use its judgement in determining whether or not a President’s actions warrant impeachment. However, it is hard to see why the specific criminal penalties in FISA don’t constitute a codification of this judgement. Even if there is some reason we should disregard prior laws on the subject we then find ourselves in the unpalatable situation of making impeachment into a political decision. Letting congress determine after the fact whether the president’s surveillance was the ‘good’ Bush kind of the ‘bad’ Nixonian kind despite apparent legal similarity dangerously shoves the legislature into what should be executive decisions. Ironically, while appearing to increase executive power, dismissing the ability of congress to establish enforceable guidelines could actually decrease it (unless we just give the executive unfettered power).

While I’m sure everyone is sick of hearing about the spying scandal you may not know Bush is trying to pull similar legal tricks in other areas. In particular the administration seems to be using more legal weaseling like they tried with the authorization to use force in Afghanistan to avoid the McCain amendment. While I have my concerns about the McCain ammendment this sort of end run around it is the worst of all possible options. At the same time this blunts the ability of the McCain ammendment to stop torture, or improve our international reputation while frightening whistle-blowers into silence. In respect to the Guantanamo detainees the administration is doing less creative interpretation but the outcome is just as disturbing. Whether or not congress agrees with him any attempt to remove habeas corpus, especially by circuitous means, is troubling. Ohh and the evidence that Alito is especially sympathetic to executive power mounts.

Just as I thought the Republican partisans are stridently claiming Bush did absolutely nothing wrong and I’m afraid it is working. As we have seen before if you tell the big lie frequently enough people start to assume their is some degree of truth to it and assume it is just a little lie. They really are going to convince the public that Bush’s action was only a little bad or something reasonable people can differ over.

This isn’t a surprise to me but I am amazed at the extremes of deception they are willing to go to.

So yesterday I posted a link to Orin Kerr’s post on Volokh. In this post Kerr says:

My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.

Yet amazingly this op-ed in the washington post merely says,

George Washington University law professor Orin Kerr (one critic calls him the man who “literally wrote the book on government seizure of electronic evidence”) finds “pretty decent arguments” on both sides, but his own conclusion is that Bush’s actions were “probably constitutional.”

This is appalling. I thought major papers exercised some control on misleading quotes in op-eds but I guess I was wrong.

Add to this the fact that the RNC is circulating statements saying Clinton and Carter authorized warrant-less spying which is true but what they did was create rules reducing the amount of spying the NSA was allowed to do so they would be in compliance with statue. Note I checked the actual RNC page to make sure I wasn’t falling for a democratic misquote on this one. Importantly the statements about inherent presidential power don’t mean what the RNC wants them to mean. Whether or not the president has inherent authority to conduct warrant-less surveillance as all president’s did before FISA is a completely different matter then whether the president has inherent authority to do this in the face of statute to the contrary. If you actually read the FISA opinion in question (as was discussed in the posts I linked yesterday) it doesn’t say what the republicans want it to say. Finally the Ames case mentioned was not electronic surveillance so it simply didn’t implicate FISA.

Sure the President has the inherent authority to wiretap spies or engage in surveillance in furtherance of national security meaning so long as congress doesn’t say he can’t the president can engage in warrant-less surveillance. The same way the states have ‘inherent authority’ to regulate business inside their borders unless this authority is preempted by congressional action under the commerce clause

Additionally there was this wonderful little incident about the conservative blogs misquoting the FISA statute so the flaw in their argument wasn’t apparent. However, I should point out that I find it entirely plausible that this last issue could be a genuine error and a fair number of blogs did point out the error once it arouse but I wanted to put this one in just for completeness.

I’m beginning to fear the public just isn’t up to dealing with complicated issues like the law. They won’t trust any body of neutral experts, e.g., consult legal experts not handpicked for partisan affiliation, and don’t bother to track down the original sources (or at least authoritative ones). I mean the GOP statement sounds pretty convincing if you don’t bother to actually figure out what is going on.

For completeness sake (and to avoid becoming like all those horrible political blogs which only give you sources that say what they want) here is the DOJ’s letter defending the program that was sent to capital hill.

Sorry for all the focus on this issue. Regularly scheduled programming will return shortly.

UPDATE: 2/12/06 spelling fixed, relutantly. This got me the top result on google for a search on “FISA text inherINT authority”

So I tried my hand at some amatuer legal analysis when the president’s authorization of domestic spying came out but now I think it is time we heard from some real professionals. While it does seem the claim that Bush’s spying orders violated the 4th ammendment may be weak (though I think even an implication of 4th ammendment issues should invite deference to statutes protecting 4th ammendment rights) the overall point is even more clear. Bush clearly broke the law because he found it unpalatable.

So now for the posts:

Orin Kerr at The Volokh Conspiracy and Daniel J. Solove at Concurring Opinions both make in depth legal arguments that Bush violated the law.

At Balkinization there is a post ripping apart the AUMF justification and another one observing that if Bush really believed in his arguments he wouldn’t feel the need for the patriot act.

Note in the first post the point that the NYT story already told us that some of this monitoring was not keyword monitoring type stuff but targeted wiretapping (though I don’t think it matters).

Finally there is a pretty reserved post over on SCOTUSblog analyzing whether the president’s arguments, if accepted, would admit any restraint on executive power.

Don’t forget to take a look at the comments, some of them are pretty enlightening too.

I know I’m beating this issue into the groun but every time I listen to the news I hear this issue presented as if it was just another case of reasonable folks disagreeing and that is deeply disturbing.

UPDATE: Don’t forget to check out Bush lying through his teeth. Alright, I guess it is arguable that he meant wiretaps under the patriot act or somehow is weaseling on the word ‘wiretap’ but in any case it is pretty damn misleading for a president asking us to trust him.