17 May 2007

Warrantless Surveillance -- Constitutional Crisis

Farflung correspondents,

It does not yet seem to be the consensus in this country that the undeniable willingness and history of this administration to act outside, indeed in clear violation, of the law, and to stonewall and keep in secrecy such actions, is a constitutional crisis. I believe it is. The warrantless surveillance of American citizens in the US, in blatant and unambiguous felony violation of FISA, which is still going on, is probably the chief, but by no means the only, example. Differing views of the proper powers of the presidency go all the way back to the Federalist papers, and the trend, certainly since WWII, with some reining back after Watergate, has been more and more towards a view of the executive as a sort of elected King, especially in the foreign policy and war powers arenas. But this administration, has gone far, far beyond any previous view of the powers of the presidency, and has all but declared, in various signing statements, public prevarications, and simply by refusing to answer inquiries even of the Congress, that it can do whatever it wants, without reference to the laws Congress makes, whenever it, in its own unreivewed and unchecked judgment, decides that somehow or other "national security" is involved.

This is a horrible, horrible precedent, and I truly believe that if the Democratic Congress fails in its oversight responsibilities on these issues between now and the end of this president's term, this precedent will have the effect of grossly weakening the separation of powers which are the very essence of our system of government, for a long time to come if not permanently.

Please read Gleen Greenwald's piece (5/16/07), on the importance of the Comey testimony to Congress yesterday and the very sorry state of affairs with respect to oversight and action on the clearly illegal actions of this administration with respect to warrantless domestic surveillance.

I hope it's not necessary to reiterate, but I will anyway: The question is not whether particular surveillance was necessary, or whether the administration's aggressiveness in spying on potential terrorists was admirable. The fact is we have a system in place to allow this kind of surveillance, with legal oversight and within the law. With the amendment to FISA in 2001, the government can conduct surveillance without court order for 72 hours, and can easily obtain a warrant to continue it within hours. The FISA court has never refused a warrant for domestic wiretaps, and is available to rule on short notice. The fact is inescapable: the check on executive power of even this all but pro forma oversight is seen by the Unitary Presidency true believers in this administration as an unacceptable limit on the President's kinglike powers, so they insist on the right to conduct these actions, in secret, without recourse, without anyone's right to know, and in completely clear and blatant violation of law. The suspicion is very, very hard to escape, that they wanted and seized these powers because they acutally conduct all kinds of surveillance for other reasons, on a massive scale, and don't want anyone, not even a Federal judge whose job it is, primarily, to rubber stamp approvals for surveillance, to know what's going on.

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