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Tuesday, December 27, 2005

A Motive for Bush's Crimes Is Revealed -- When the Conservative FISA Court Questioned Wiretaps, Bush Stopped Obeying the Law

One of the big questions relating to President Bush's illegal use of warrantless wiretaps has been simple: why? The FISA Court is known to be dominated by conservative judges, for several reasons. The PATRIOT Act increased the size of the Court from 7 to 11; just like FDR's infamous court-packing plan, the PATRIOT Act allowed Bush to increase his hold over the FISA Court by appointing 4 new members. (Technically, Chief Justice Rehnquist appointed all members to the Court, but it's pretty clear where his allegiances laid.) Since 17 of the last 25 years have featured a Republican President, it should come to no suprise that Federal Courts in general are dominated by Republicans. I don't have the stats to prove it, but the vast majority of the FISA court are Republican appointees, generally ones who are extremely pro-government. In short, Bush should have had no problem getting the wiretaps he wanted.

But something different happened: even far-right jurists rejected Bush's use of wiretaps. Only 2 of the first 13,000 wiretap requests that the FISA court handled were modified, over a course of 22 years. 179 of the 5,645 of the requests under Bush, on the other hand, were modified; 173 of those occurred in 2003 and 2004 alone. 6 requests were outrighted rejected in the past 2 years -- until 2003, a request for a wiretap had never been rejected by the FISA Court.

To obtain a FISA court-approved wiretap, the government must show probable cause that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that may involve a violation of criminal law. Even under this lax standard, Bush wasn't able to meet it constantly. It appears that the Republicans decided upon a different course of action: ignore the FISA court and get wiretaps in other ways. The mere existence of the court, and the Bush administration's 5,645 requests for wiretaps, prove that the Bush administration knew of the court's legitimacy and powers. They knew that all wiretaps had to be cleared by the court; if they felt the court's blessing was unnecessary under Article II or under the War Authorization, they could have just stopped going to the court. They didn't do that because they knew that would be a red-flag alerting others to Bush's impeachable crimes.

So even the conservative FISA court refused to go along with Bush's wiretaps. Conservative in thought but still somewhat dedicated to the law, these jurists felt that they could not participate in Bush's criminal conspiracy to spy on law-abiding Americans. Bush's motive is finally revealed: he broke the law because even right-wing courts don't condone spying on anyone Bush pleases. Many of those who were spied upon were likely political enemies of the President. Bush treated the Presidency like a cheap excuse to dig up dirt and he broke the law in the process. Anyone who honors and respects the law should be appalled.

Even conservative legal minds such as Orin Kerr have come out and admitted that Bush broke the law. If he broke the law, the Republicans' own standard set by the Clinton impeachment mandates a similar impeachment trial for President Bush. Only this time, we actually have an impeachable offense. I expect the Republican arguments against Bush's lawbreaking to end soon because they lack any credibility whatsoever. It's painfully obvious that Bush broke the law; the law said to get warrants for wiretaps and Bush didn't. The new line of GOP arguments, I predict, will be that Bush's crimes do not rise to the level of "high crimes and misdemeanors." I would even expect them to point to the Clinton impeachment as an example of crimes that do not deserve impeachment, as incredibly circular and ludicrous as that sounds considering the Republicans held the torches during the Clinton Witch Hunt.

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