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Wednesday, December 28, 2005

Federalist Society Member Says Bush Broke the Law

Robert Levy, a member of the conservative Federalist society and a Senior Fellow at the conservative Cato institute, has this to say about Bush's use of warrantless domestic wiretaps:

The text of FISA §1809 is unambiguous: “A person is guilty of an offense if he intentionally engages in electronic surveillance … except as authorized by statute.” That provision covers communications from or to U.S. citizens or permanent resident aliens in the United States. Moreover, Title III (the Wiretap Act) further provides that “procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance … may be conducted.”

To be sure, FISA’s prohibition on unauthorized electronic surveillance applies “under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” §1801(f). Surely, U.S. citizens and permanent resident aliens have a reasonable expectation of privacy in their international phone calls and emails. Accordingly, warrants would be required for law enforcement purposes and, therefore, warrantless surveillance absent an authorizing statute would violate the FISA requirement.

In addition, he thinks Bush may have violated the Constitution:

First, Article II requires that the president “shall take Care that the Laws be faithfully executed.” He definitely has not done so with respect to FISA §1809. And even if he believes in good faith that §1809 is trumped by his war powers, his use of secret executive orders is not the manner in which he should discharge his obligation to defend the Constitution and execute the law. Instead, he should have made his case to Congress, expanding on the list of FISA grievances that he would like to have amended by the PATRIOT Act.

Second, the Fifth Amendment proscribes deprivation of liberty without due process. Liberty, as we know from the Supreme Court’s recent decision in the Texas sodomy case, Lawrence v. Texas (2003), encompasses selected aspects of privacy. A Fifth Amendment challenge to the NSA program might transcend the question whether particular surveillance was “reasonable” in terms of the Fourth Amendment’s warrant requirement.

Read the whole article at the Federalist Society website. Although he never mentions the word, Levy's argument makes a compelling case for an impeachment of Bush on several counts. A pro-Bush supporter, David Rivkin, gives his weak, quasi-factual counterpoint in the second half of the article. An example of the lies is the repetition of the right-wing falsehood that Clinton violated FISA. This link proves that's false, but the right-wing conspiracy didn't get so powerful by sticking to the facts.

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