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.

So if you read this blog you know I’m not exactly a rabid liberal sycophant. I’ve never been a fan of Bush but I’ve never been one to say we went to war for oil or the other crazy conspiracy stories. Heck, I’m still unsure if the Iraq war, while clearly sold on false pretenses, is on the whole good or bad. However, Bush’s choice to spy on americans, in violation of law, is inexcusable. To borrow a line from the Republicans during the Clinton impeachment, if we are going to be a nation of laws when the president knowingly and willfully violates the law because he doesn’t like what it says he needs to be held accountable. The Republicans are desperately trying to make this issue about whether the spying Bush approved was had adequate safeguards or made the country safer, it may have been we just don’t have enough information to know, the important point is that it was illegal and when the president didn’t like the law he ignored it. Whether it is good or bad for national security is totally irrelevant. Even if you believe McGovern’s foreign policy would have imperiled US national security it did not justify Nixon breaking the law and burglarizing the democratic offices and while there is no reason to believe Bush is guilty of a similar scale of infraction the principle stands. The president must obey the law whether or not he agrees with it and must be held accountable should he knowingly violate it.

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.

In case you have been living under a rock for the past couple days you’ve heard about the New York Times article detailing how Bush secretly lifted restrictions on the NSA against spying on US targets. Now I find these changes troubling, not so much because it is obviously wrong to listen in on international calls originating in the United States but because I find secret unilateral deciscions weakening civil rights troubling. So long as there is an absolute barrier to prevent this sort of information being used in criminal investigations I might even be willing to support this sort of limited program, though in light of the patriot act getting rid of the famous “wall” I’m not sure if there still is such a protection. However, this is an issue reasonable people might disagree about. I might write a post about this later but first I need to get more evidence and do more thinking.

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.

Lately President Bush has been going around ‘defending’ the war in Iraq. Really he is just trying to damn the democrats with him by pointing out they supported the war as well. Before the last election I never would have believed crap like this could take in the voters but since this is pretty similar to the strategy Bush successfully used against Kerry. If the voters are unable to understand that someone might believe the president should be given the authority to go to war but shouldn’t have gone to war they might not be able to figure this one out. While I usually avoid weighing in on these sort of topics since a billion liberal bloggers have usually made all the arguments for me I figure this situation is a bit different. After all alot of the far left essentially agrees with the president and thinks everyone who voted for the war is equally culpable.

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.

The alternative minimal tax (AMT)has been getting a lot of bad press lately. It is described as complicated and arcane but in fact seems a lot simpler than most of the tax code. If you make enough money (more or less) you have to pay tax at the lower AMT rate but with an extremely limited set of deductions and exemptions. In other words it makes sure the rich people don’t get away paying an extremely low tax rate by forcing them to deal with this alternative tax system. The ‘complications’ are just the fact that the AMT rules are different than the normal tax rules not that they are inherently more complex.

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.