Think Bush’s NSA war powers theory does not personally affect you? Think again. Bush claims the power to seize computers, e-mails and records even without the use of the Patriot Act; the power to assassinate terrorists in US; the power to “house” Americans in “detention centers” and immunity for violating constitutional rights. These are some of the tentacles spreading out from the same theory used to justify Bush’s illegal spying on Americans by the NSA.
Bush’s strategy to prevail on his NSA war powers claim is to remove from public debate the fact that his actions are contrary to law and the facts don’t support his claims. Similar to past controversies, Bush will create a fog to cloud the debate by immersing it in detailed and sometimes complicated point and counterpoint discussions that dig deeper into the many minutiae of the facts and law. This Bush fog will obscure the issues sufficient to chase away the public frustrated by the mess.
Bush does not care if the facts or the law support his policies or decisions because he ultimately wins arguments based upon an underlying or implied message that he preaches to the public. Bush uses these emotional messages to get the public on board, and then Congress whimpers into its corner. For example, Bush marched to war and a second term by implying a link between Iraq and al-Qaeda that somehow threatened our national security. This was accompanied by an implied threat that if we did not agree to war or to vote for Bush, then we would be attacked by terrorists.
In the case of NSA spying, Bush’s implied message so far is a threat that if Congress continues to challenge Bush on his spying, then the US may face a constitutional crisis as the Bush team will then argue expressly that a president’s constitutional powers trump Congressional powers a la FISA.
Gonzales delivered this implied threat at a Georgetown speech:
“Now, we do not have to decide whether, when we’re at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches or places an unconstitutional constraint upon the President’s Article II powers. We can avoid that tough question because Congress gave the President the force resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President’s constitutional authority today.”
And in a Dept. of Justice legal memo:
“Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. “
This is true revisionism by Bush given that any constitutional crisis was triggered when he first assumed powers constitutionally provided to the legislative and judicial branches of government. Bush’s redefinition of a constitutional crisis as any challenge of his illegal actions may succeed, just as he convinced America that a draft dodger was more qualified to protect them in a time of war than a war hero.
But this is a battle that the left can not lose, if for no other reason then the reach of the tentacles from Bush’s claim of war powers extends beyond FISA and the NSA:
(1) The Bush team indicated last month that it does not need the Patriot Act extended in order for Bush to continue to use those powers against terrorists:
“A footnote in Attorney General Alberto R. Gonzales’s 42-page legal memo defending President Bush’s domestic spying program appears to argue that the administration does not need Congress to extend the USA Patriot Act in order to keep using the law’s investigative powers against terror suspects.
The memo states that Congress gave Bush the power to investigate terror suspects using whatever tactics he deemed necessary when it authorized him to use force against Al Qaeda. When Congress later passed the Patriot Act, Bush already had the power to use enhanced surveillance techniques against Al Qaeda, according to the footnote.
Thus, legal specialists say, the administration is asserting that Bush would be able to keep using the powers outlined in the Patriot Act for Al Qaeda investigations, regardless of whether Congress reauthorizes the law.”
(2) The Bush team indicates that “in certain circumstances, the president might have the power to order the killing of terrorist suspects inside the United States.” This is a logical next step following the suggestion in court by a judge that the President has the right to send the military to capture a terrorist about to bomb a building in a US city. [Of course, most people would probably not object if this person were a terrorist, but given that Bush considers environmental groups to be terrorists, do we want the military performing law enforcement functions in that case.] This is the same case where a government attorney declared that in the “war on terror,” the “United States is a battlefield.” One judge questioned whether Bush has the power to unilaterally declare the entire US a battlefield or would that require “specific authorization from Congress?”
(3) The Bush team also argued in court last month that 9/11 essentially provides the federal government with immunity from lawsuits seeking damages when Bush violates constitutional rights. Government lawyers argued that 9/11 created “special factors” – including “the need to detect and deter future terrorist attacks – that outweigh the plaintiffs’ right to sue for damages for any constitutional violations.” If Bush wins this case, Bush will have immunity as a defense to violating constitutional rights that will extend beyond imprisoning Muslim immigrants rounded up by our government after 9/11. How many times have we heard this administration protest “but, 9/11 changed everything” as they claimed the need for more powers to take away more of our civil and constitutional rights?
(4) Now, the Bush team awards a $385 million contract to a Halliburton subsidiary to build “temporary immigration detention centers” in the US for the Homeland Security Department for an “unexpected influx of immigrants, to house people in the event of a natural disaster or for new programs that require additional detention space.” Given that we have not had a lot of immigrants rushing to the US sufficient to require such facilities, why the need to prepare for this hypothetical crisis when we do not prepare for the more likely event of future terrorist attacks?
So, if you know one of those folks who say “this NSA spy thing does not affect me,” please do us all a favor, and ask them to get off their cute little fanny and e-mail, phone or write Congress. It’s good to hear that there is bipartisan support in the Senate for pursuing options to delineate or roll back the president’s authority, including a constitutional amendment to limit his powers. Those sound like nice remedial measures to prevent abuses of power in the future. But, Bush also needs to be held accountable for his past actions. As Bush likes to say, all Americans should be held personally responsible in his ownership society. Impeachment sounds like a pretty good way for Bush to own up to his illegal acts. After all, if Nixon was impeached for protesting that he was not a crook, why is Bush not facing impeachment for admitting on TV that he violated our laws and intends to continue violating our laws?
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