George the Fourth

When the administration’s widespread, illegal wiretapping program was exposed, George Bush, Jr. admitted it on tv. He promised to continue it. There was no debate about whether he flaunted the F.I.S.A. provisions; he simply took the position that as President, he can violate the law.

Congress, of course, is controlled by Republicans; so Congress caved in. Rather than dispute George Bush, Jr.’s claim of privileged status, Congress proposed changes in the law which would essentially make executive requests for warrants voluntary. Republicans and Democrats submitted questions about the intercept operation to Bush’s Department of Justice, and the Department of Justice responded, in part, with this:

Just as one President may not, through signing legislation, eliminate the Executive Branch's inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty.*

The executive branch’s opinions are certainly relevant; but theoretically, they don’t have the last say. Theoretically, the constitutionality of laws is determined by the Supreme Court. Since no case turning on this issue has yet reached the Court, the validity of Bush’s defense cannot be assumed merely because he wishes it. As the facts currently stand, he is a confessed felon. He is in favor of the new guidelines and committed to ignoring them. When he signed the Patriot Act reauthorization earlier this month, he added a statement that he was not required to comply with the Act.

I simply do not believe that James Madison, Benjamin Franklin, George Washington, and the rest of our founders contemplated extraordinary war-time powers for an executive who could then start wars purely as a device to gain more control. I don’t think they were that stupid. And as I recall, they were generally opposed to monarchy.

* See http://glenngreenwald.blogspot.com/ for 3/25/2006 for links to the Justice Department pdfs and the Boston Globe report on Bush’s signing statement. The article is titled "Administration tells Congress (again) — We won't abide by your 'laws'"
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