On Jan. 23, Bush went to Kansas State to defend his NSA spying program, which he now calls a “terrorist surveillance program.”
But Bush made no mention of the FISA Act, which governs such surveillance, or why he chose to go around the FISA court, which has been granting an astonishing 99.997 percent of the President’s requests for warrants.
Instead, he spoke just as he has acted: As if FISA weren’t even on the books.
He said, echoing the Justice Department’s rationale, that “federal courts have consistently ruled that a President has authority under the Constitution to conduct foreign intelligence surveillance against our enemies.”
But after Nixon abused this authority, Congress passed the FISA Act to ensure that a future President didn’t trample on our rights.
Perhaps realizing he was on shaky ground, Bush said that the Supreme Court affirmed that the Authorization of Military Force that Congress passed after 9/11 gave him this authority. But that’s not what the Supreme Court said. And it’s not what Congress did.
The Court, in the Hamdi case, merely said that in the “limited” circumstances of a U.S. citizen acting as an enemy combatant on the battlefield, Bush had the authority to apprehend that person. It said nothing about warrantless domestic surveillance, and it expressly dodged the question of whether the Commander in Chief had such power absent a Congressional authorization of force.
In this particular authorization of force, according to former Senate leader Tom Daschle, Congress refused a late-inning request from the Administration that would have allowed Bush to engage in such warrantless wiretapping.
Then, like every bad criminal, Bush said, “If I wanted to break the law, why was I” doing such and such?
In his case, such and such was “briefing Congress.” But even as Cheney gave the most meager notifications to a handful of leaders on the Hill, the Administration was not following the law, according to the Congressional Research Service.
Most disturbing of all, Bush claimed that “Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics.”
And he evidently believes there is nothing—neither the Constitution, nor statutes, nor Congress, nor the Courts—that can now limit his choice of tactics.
With this rationale, Bush could send F-16s to attack a residential area in, say, Indianapolis, if he thought there was someone with an Al Qaeda link there.
Bush acts as though the war on terror has rendered the Bill of Rights obsolete.
We better use it or lose it.