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December 20, 2005

It's Illegal. Period.

The NSA domestic spying program recently disclosed by the NYTimes, doesn't pass the sniff test.  Kevin at Washington Monthly has the barebones answers to questions of it's legality.  The bottom line:   

In other words, the president's program is almost certainly illegal unless you accept his unprecedented notion that we are currently in a state of war so grave that he has virtually unlimited power to override federal law whenever he considers it necessary. Even more importantly, by keeping his program secret, he has set himself up as the sole arbiter of whether his actions are legal or not. Neither Congress nor the courts are allowed any oversight, a position that is both breathtaking and dangerous.

As Jon asked a couple of days ago, "Can we impeach this clown now?"

And, as usual, Horsey puts it all in a cartoon that puts it all in perspective.

Posted by Lynn Allen on December 20, 2005 at 08:28 AM in National and International Politics | Permalink

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Comments

The issue of the legality of the wiretaps is one hardly a slam dunk.

The WSJ Opinion has an article the references several court precedents that need to be factored in.

http://www.opinionjournal.com/editorial/feature.html?id=110007703

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

I beleive there is room for much more discussion, and likely his supporters will argue for a justification of the needs of national security with the legal precedents apparently leaning in his favor.

Posted by: karl | Dec 20, 2005 4:40:06 PM

Karl,

From what I can gather, the core question of legality is whether or not we consider ourselves at war. The president and his henchmen have tried to convince us that this is war in the sense that we were at war during WWII. This is something we should be talking about as a nation, something the Republicans have been trying to prevent by their layers of secrecy. I, and most people I read, believe that under all other conditions, what he is doing is illegal. Most people also believe that even under war conditions, we are always sorry when we realize later we have thrown away our basic civil rights.

Posted by: Lynn | Dec 21, 2005 12:38:55 PM

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