King George and His Illegal Searches

I decided on Friday, when the stories about Bush secret spying came out, to wait to see the explanation and on what authority the President was placing this egregious offense. All we got was a tsunami of BS enveloping the nation. As usual, the president had none, other than his tired "darn it, just trust me!" The President's surrogates keep talking about "inherent powers" of the president. I am sick of the inherent powers. Talk to me about the express rights of the people which is missing from the talking points. It used to be that the conservative mantra was "freedom isn't free." Well, they seemed to have changed that to "security isn't free," and the price we paid was our freedom. There needs an immediate inquiry into Bush's actions.

I will try to break this down into the relevant parts.

A) I watched Condi on Sunday morning and read the interview with Alberto Gonzalez today, claiming that the Congress had authorized this. First, either it was a presidential directive, or it was a legislative authorization. The two are not the same. If the Congress authorized this, than it is not a presidential directive. Since he reauthorized it dozens of times, this leads me to believe that there was no legislative authorization and was only a presidential authorization. Bush may have informed Congress, but that is not the same thing as congressional authorization. Either way, it doesn't change anything.

Second, even if the Congress did authorize it - It doesn't matter. Congress does not have any more authority to act unconstitutionally than the president does. The president cannot authorize searches. The Congress cannot authorize searches. Only the courts can authorize searches.

4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I don't care if every member of congress and the president authorize the search, it is still unconstitutional. The President cannot pass the buck on this one.

B) Foreign Intelligence Surveillance Act - Bush claims that his authority comes from FISA, which allows the government to monitor domestically in extreme situations. Even with FISA, Bush acted illegally. FISA still requires to get a warrant form a court. There is no exception to this rule. If Bush was acting legally, he would have had a warrant issued for each and every case. He did not. He acted illegally. This is not an issue of if the government can monitor suspected terrorists. They can. This is a question as to the subversion of the 4th amendment and why it was necessary for the President to ignore it.

C) There was no reason Bush needed to subvert the constitution. With FISA, and the other "secret" courts established in the fight against terrorism, there has rarely been a denial of a warrant for a wire tap. Bush could have achieved the same goals and provided the same amount of protection without violating the constitution. If the people being watched were truly dangerous, a judge would have signed a warrant. Bush claims that the illegal searches were done only in limited scope, but we don't know that. The truth is we can't know that without the checks and balances that the founding fathers explicitly wrote into the constitution.

D) Bush secret surveillance is contrary to the constitution, the idea of liberty and the founding principals of this nation. Conservatives continue to complain about how the courts are usurping legislative authority. Well, this is were the legislative and executive authority has usurped the courts.

Alexander Hamilton: Federalist 78

For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."... The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing....
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

We can be safe, and still protect our civil liberties. But we cannot do it when our own government acts above the constitution that sets limits to their powers and ensures our rights. There is no conceivable excuse as to why Bush needed to subvert the courts. There is no conceivable excuse for his action. Once again, this president has deemed himself to be above the law. His powers are derived from he constitution. It is about damn time he starts respecting it.

Update: And for those of you who keep citing the "Use of Force" resolution (S. J. RES. 23), please, oh please, point to out where this suspends the constitution?