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.

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.

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.

Thanks to Orin Kerr for the pointer.

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

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.

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.

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.

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.

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 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.

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.

So at first I wasn’t sure what Bush had done really was that serious an offense but then I discovered that the FISA act specifically makes it a crime to, “engages in electronic surveillance under color of law except as authorized by statute.” This is exactly what Bush has admitted to knowingly doing. This makes a pretty strong prima facia case against Bush. It would take some pretty compelling reasons for knowingly violating a statute designed expressly to prohibit executive overreaching not to justify an impeachment.

Bush’s first justification is that the FISA act itself is unconstitutional insofar as it abridges the President’s, “inherent authority under the Constitution, as commander in chief, to engage in this kind of activity” (Gonzales). The first problem with this justification is that it rests on the idea that the spying was part of the President’s power to wage war. The essential problem with this is that the “war on terrorism” is not a war in a constitutional sense anymore than the war on drugs or the war on poverty. Just calling the an effort to stop crime, even extreme crimes like terrorism, war doesn’t give the president constitutional authority to treat it as a war! The fact that we are in a “war on drugs” doesn’t give the president authority to have the military shoot drug dealers even though he would have the power to have the military shoot invading armies. Moreover, congress simply didn’t declare war on terrorists and the constitution reserves this power to congress.

Even without this flaw there is the problem of the fourth amendment. The bill of rights limit the powers provided in the original constitution so even if the powers of commander in chief could be twisted into supporting this authority the 4th amendment would restrict it. Since, as we will see, the only motivation for ignoring the FISA court is because the government did not have enough evidence to get a warrant there is every reason to believe these were unreasonable searches and seizures. Besides there simply is no reason to believe that the constitution grants the President this sort of power in the first place, and certainly not in violation of an act of congress. At the very least this shows Bush to be a complete and total hypocrite. Reading the right to spy on US citizens in the US into his power as commander and chief makes the Roe v. Wade decision look like it was written by a strict constructionist. Given the Presidents public claims about constitutional interpretation it strains credibility to think he could reach this conclusion in good faith.

So what about the claim that the authorization to use force gave the president the authority to engage in this type of surveillance? The relevant text is the following:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Note that the resolution authorizes force not wiretapping, surveillance or other activities. Given that the other half of the resolution specifically talks about the war powers act it seems obvious the congress isn’t giving the president unlimited domestic powers but rather allowing him to deploy troops. More importantly it only authorizes action against people who, “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” This doesn’t include people who happen to talk to Al Qaeda (if we had reason to believe they had done any of these things he could have gotten a FISA warrant) or even terrorists or Al Qaeda members who joined after September 11th. I mean hell if we are going to interpret this resolution that broadly it gives the president the power to unilaterally shoot anyone who unknowingly rented the 9/11 terrorists a hotel room, or booked their plane flights.

The legal justifications Bush provides are just absurd. The fact that he got legal opinions which say he can do this don’t make one iota of difference. If the president can secretly violate the law whenever he gets a crony to write up an opinion saying it’s legal there are no checks on executive power. I mean surely the watergate break in wouldn’t have been okay if Nixon had gotten some attorney to write him a note saying it was okay. Bush is the president not an elementary school student, he is responsible for his choices and no note from a lawyer changes this.

Alright so finally what about the non-legal justifications the administration has provided. The actions were clearly illegal but in emergency situations acting first and dealing with the law latter might be excusable. However, no such excuse is available when the program has been running for four years. In fact the justifications offered by the administration just make things worse.

Gonzales said the administration considered changing FISA, but members of Congress advised them that lawmakers would not be likely to go along — “certainly not without jeopardizing the existence of the program, and therefore, killing the program

This completely eliminates any argument that the administration needed to move faster than congress could act. They considered asking congress but didn’t think they would get the result they wanted. In other words the president broke the law secretly because he knew congress wouldn’t approve. The reasons the administration gives for FISA not being sufficient are even more absurd. FISA (summary) gives the president 72 hours to make a warrantless tap so immediate reaction is possible. In fact had the president really believe we were legally at war he would have had 15 days to engage in warrantless tapping and the fact he didn’t undermines his own arguments about wartime powers. The only paperwork problem is in getting the attorney general’s signature. If this is so important why didn’t Bush just turn over the normal functions of the AG over to someone else and have Gonzales do nothing but sign emergency warrant orders?

Finally this brings us to the final and perhaps most ridiculous justification yet, that the president couldn’t risk asking for legislative changes lest we tip off the terrorists. The terrorists already know we can listen in on phones and the patriot act gave the government the ability to get roving warrants so they know they can’t rely on a new phone giving them a day of surveillance free communication. What are we supposed to believe that the terrorists are all relying on the attorney general to have been too busy to sign their surveillance order? The FISA court is secret and the executive can start tapping for 72 hours on its own so unless we assume the terrorist is absolutely confident in their ability to guess the status of government warrants the idea that asking for new legislation would cause us to lose vital intelligence is absurd. The patriot act already communicated the executive was interested in wire tapping people in the US there isn’t anything more they could have learned by asking for a more flexible approval process.

There is no reasonable difference of opinion about whether the president acted improperly (and continues to act improperly). If Clinton’s minor deception under oath was even close to warranting an impeachment there isn’t even a reasonable difference of opinion over whether Bush should be impeached. If you thought the Clinton thing was even slightly reasonable the only question you should be asking is whether Bush should be prosecuted after he is impeached. Even if you put the bar for impeachment high this is an extremely serious violation of law and abuse of presidential power and Bush should be forced to defend it on trial before the senate. Of course it won’t happen but it should.

However, I’m currently listening to Jim Leher’s interview with President Bush and was absolutely appaled to hear him refuse to discuss this issue because he doesn’t want to jeapordize ongoing investigations and operations. I mean come on can anyone believe that acknowledging or offering general justifications is going to imperil investigations when it is already on the front page of every newspaper in the country. What are we supposed to believe some Al Queda operative is going to think, ohh well if my arch enemy Bush won’t confirm or deny it I’ll just assume my phone isn’t being tapped. Perhaps there is something to be said for always refusing to confirm or deny stories about intelligence operations but the administration is perfectly willing to deny things they aren’t doing which might look very bad. Besides if that is why he isn’t answering he could just come out and say thing instead of implying that answering that question could endanger particular operations.

Sure all politicians dodge questions but Bush is asking the country to trust him on matters of security. If he is willing to disingenuously use security worries for political gain even republicans should be sucpiscious. Combine this with his claims that even a day without the patriot act would be exceptionally dangerous but unwillingness to sign a three month extension to give the congress time for consideration and investigation and the overall picture is very worrying. Not that I’ve ever thought he was a good president but this just seems like a whole new level.

Sorry for the standard political post, I usually like to avoid these.

UPDATE: And now Bush has admitted that he did this, clearly things changed over the night so he wouldn’t be imperiling sources or methods.

So Bush is pointing out that both the Clinton administration as well as congress thought Saddam had weapons of mass destruction after reviewing the same intelligence as he did. While I guess this must sound compelling to some people it ignores two critical points. First of all one has a responsibility to be much more certain of an issue before you go to war then before you offer an opinion on it. As a private citizen I might reasonably say, “Yah I think Saddam probably has WMDs,” with little or no evidence at all. Clinton, speaking as the POTUS has a responsibility to do some research and make sure he isn’t just spouting BS if he wants to say the same thing. Bush, on the other hand, is supposedly going to war on this fact so he has a responsibility to be pretty damn sure it is true. This isn’t hard to understand, juries apply this sort of reasoning all the time when they don’t apply the death penalty because they have a few lingering but not ‘reasonable’ doubts, so I hope the population isn’t taken in by it.

This brings us to the second important point. Congress simply didn’t have the same information that Bush did. In particular it didn’t know that the Bush administration had strongly encouraged intelligence favoring this outcome. They didn’t know that there were credible doubts about many of the pieces of evidence . Whether or not Bush personally heard this doesn’t matter, he is responsible if he creates a atmosphere that ensures he only hears what he wants to hear. Moreover, congress, like president Clinton, simply has a lower level of responsibility. A president who is about to make war has an active on some piece of information has a responsibility to actively interrogate his intelligence staff to see if the evidence holds up and to otherwise double check the soundness of a case. The congress can’t do this and can only trust that the president already did this and would have provided contrary evidence if he had found it.

Ultimately though it is not the prosecution of a war in Iraq that Bush needs to answer for. At least at the time there was a reasonable case to be made that this war would make Iraqis better off and would make the world a better place and who knows it still might. This, after all, is the only justification a war can ever have. What Bush deserves to answer for is not simply making this case and instead presenting intelligence whose flaws he should have been aware of. Indeed these flaws are coming around to bite us in the ass with Iran. Whatever he may have believed Clinton didn’t manage to make the entire world suspicious of our intelligence claims and I doubt this difference is just a coincidence.

From all the whining and gnashing of teeth in Washington over this tax you would expect that half the country was now paying the AMT. In fact only about 10% (3 million) people are liable for the AMT. The tenth of our population earning the most money can certainly afford to hire a CPA if they are too dumb to figure out the AMT and they most certainly deserve to be paying a reasonable percent of their income in taxes rather than avoiding it all through the use of deductions and exemptions. It is one of the very few good features of our very fucked up tax system but Bush wants to eliminate it to help his fat cat cronies.

Of course it would look too bad if he just openly came out and tried to shift that tax burden from the rich to the poor. Instead the Bush Administration has come up with a truly dastardly plan to make it look like they aren’t shifting the tax burden to the poor while actually not only making them pay but actually penalizing blue states for trying to help the poor. What his tax ‘reform’ commission came up with was to scrap the AMT and pay for it by eliminating the deduction for state and local taxes.

Effectively this does take the money from the poor since it basically makes state taxes more expensive discouraging state social nets. This proposal is almost brilliant in its evilness. In one stroke it both shifts the tax burden off the wealthy and from the red states to the blue states. In the long term it even encourages all our states to become more like Texas than like California.

We do need tax reform but eliminating the regular tax and making the AMT universal would be a lot closer to what we need than what Bush is pushing. In fact it is hard to imagine ‘tax reform’ that could be worse than Bush’s proposal.