Bush's Dictatorial Power Grab

A former general counsel for the Senate and House Intelligence committees today discusses Bush's malfeasance in the extra-legal NSA spying scandal.

Suzanne E. Spaulding, writing in today's WaPo Outlook section, points out the inherent dishonesty in the President's insistence that he broke no laws because Congress had been notified of the eavesdropping:

As a former legal counsel for both Republican and Democratic leaders of the House and Senate intelligence committees, I'm well aware of the limitations of these "gang of eight" sessions. They are provided only to the leadership of the House and Senate and of the intelligence committees, with no staff present. The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members. The leaders for whom I worked never discussed the content of these briefings with me.

It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.

Spaulding joins the growing chorus of critics who say that if there are shortcomings in the FISA law, that the President should have gone to the lawmakers for additional authority. She elaborates by stating that Congress has amended FISA several times since it's inception in 1978.

Spaulding demolishes the administration talking point that the joint congressional resolution to use force against Al Qaeda gives implicit authority for warrantless spying on Americans:

FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

That paragraph provides the big news of the day. The apologists have carefully avoided telling the American people of this 15 day provision. It is the statutory smoking gun in this case, showing the illegal overreaching of the administration in the absence of an actual declaration of war.

Hell, you only get 15 days of warrantless surveillance authority in the case of an actual war, Bush is guilty here of four years of unauthorized spying.

Spaulding continues:

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The editorial page of the Post takes note of Spaulding's "15 day" contention, and makes a further cogent point:

But saying the power is "inherent" is different from saying that it's exclusive and immune from congressional regulation. Indeed, presidents of both parties have complied with the terms of FISA and have not questioned its constitutionality. Mr. Bush is going a giant step further than his predecessors, asserting that his inherent authority doesn't merely entitle him to conduct such surveillance in the absence of a statute but to defy a statute once it has been passed.

When the establishment Washington Post implies that the President is a lawbreaker, something big is happening behind the scenes.

Or maybe not. The bigwigs at the Post may just be on holiday.