Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
For him, that is. Since January, says the administration, they've been following FISA procedure and asking the FISA court for warrants for the NSA's wiretapping program. But in testimony in front of Congress the other day, the Director of National Intelligence says they were just doing that to be nice and they could stop any time they want:
As a result of the January agreement, the administration said that the National Security Agency's domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.
Their reasoning is absurd:
During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could promise that the administration would no longer sidestep the court when seeking warrants."Sir, the president's authority under Article II is in the Constitution," Mr. McConnell said. "So if the president chose to exercise Article II authority, that would be the president's call."
The administration had earlier argued that both the president's inherent executive powers under Article II of the Constitution, as well as the September 2001 Congressional authorization to use military force against Al Qaeda, provided him with the power to conduct surveillance without warrants.
Mr. McConnell emphasized that all domestic electronic surveillance was now being conducted with court-approved warrants, and said that there were no plans "that we are formulating or thinking about currently" to resume domestic wiretapping without warrants.
"But I'd just highlight," he said, "Article II is Article II, so in a different circumstance, I can't speak for the president what he might decide."
If you think FISA is unconstitutional, then file suit in Federal court. The law was passed by Congress and signed by the President; it is the law of the land. If a new president objects to a previously passed law he has two choices: get Congress to repeal it or ask the court to declare it unconstitutional. Bush has done neither. He thinks that he has the sole authority to decide which laws he has to follow and which he doesn't. He's wrong.
Comments
I suppose it's an issue of authority versus power. He does not have the authority, but, unless he is checked by one of the other branches, he obviously has the power.
Posted by: Mark | May 4, 2007 9:49 AM
Apparently he's *not* wrong. Unless he's actually called to account for the illegal things he does, he *can* decide which laws he obeys and which ones he doesn't.
Why has this bozo never been impeached, again?
Lynn
Posted by: Lynn | May 4, 2007 10:23 AM
I wonder why this Congress hasn't adopted the solution used by others when federal officials stepped out of line - zero out the line item in the budget for their salaries. It would be amazing how little "inherent power" an executive official would claim once he realized that Congress had the actual power to make sure he didn't get paid.
Posted by: AnneS | May 4, 2007 10:45 AM
You really think Bush cares about the lousy 400K a year he makes as president?
Posted by: Ed Brayton | May 4, 2007 11:40 AM
If I were President Bush or Vice President Cheney I would be far more worried about the future secret warrantless wiretaps on their phones from President H. Clinton.
Do they really think this is going to go away when they leave office?
Posted by: David Durant | May 4, 2007 11:44 AM
One would think that when Article II of the constitution says the President "shall take care that the laws are faithfully exectuted" that his own behavior and the behavior of the rest of the executive branch would be included.
It seems that the statement is both a grant of power to the executive and a limit one the executives power at the same time.
Posted by: Ratel | May 4, 2007 11:45 AM
Sorry, that should read "a limit on executive power"
Posted by: Ratel | May 4, 2007 11:46 AM
Almost certainly not. But his political appointees probably care about being paid. If Mr. McConnell, and a good number of the various undersecretaries, deputy assistant whatevers, etc. started making a dollar a year, it would provide a useful lesson and make it pretty difficult for Bush to carry out his illegal policies. Most political appointees aren't independently wealthy and they would blink first.
Of course, the key is to cut the right people (or the right number of people) to make a difference but not cut so many that it would be politically worthwhile to veto the budget bill and shut down the government.
Posted by: AnneS | May 4, 2007 11:48 AM
Posted by: eric | May 4, 2007 12:31 PM
Impeach.
Posted by: SharonB | May 4, 2007 12:33 PM
You know, David, my fear these days is that they somehow expect to not leave office, or else to be able to hand the office over to whomever they wish. These sorts of thoughts used to keep me up and night, but my therapist says I will sleep ok, as long as I keep drinking heavily.
Posted by: Anuminous | May 4, 2007 12:39 PM
Apparently he's *not* wrong. Unless he's actually called to account for the illegal things he does, he *can* decide which laws he obeys and which ones he doesn't.
Why has this bozo never been impeached, again?
Lynn
Two words: President Cheney
Seriously, the reason Congress hasn't impeached him is, prior to the current Congress, the GOP wasn't going to do it in a million years, and second, with the current Congress, they don't have enough votes to convict so there really isn't any point. If they were to impeach Bush, he would be impeached in the House, but the Senate would likely not convict (unless they gained major GOP support.).
Sorry, it's not going to happen unless something absolutely critical and obviously criminal comes out. Even then, we'd be stuck with "President Cheney."
Posted by: dogmeatIB | May 4, 2007 1:11 PM
Senator Feinstein introduced S. 1114, the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2007 to try to address the FISA issue by making it clear that the FISA Court was the sole mechanism, but I suspect that even if Congress specifically revoked the authorization that he claims they gave him and even if S. 1114 were passed by Congress: (1) he would veto it, and (2) this particular president would take the approach that it still doesn't matter how crystal clear federal law is and that he has the authority under Article II, blahblahblah.
How many more days until he's out?
Posted by: Dissent | May 4, 2007 6:19 PM
Plus, impeaching a second consecutive President (irrespective of the reasons) would risk turning impeachment into a partisan tool. That would not be good. At this point the best strategy is to run out the clock. After all he has much less political capital than he once did.
Posted by: James | May 4, 2007 10:20 PM
I agree with those who say that it's time for impeachment of Bush. It isn't even about political expediency anymore, it's about the symbolic value of a chief executive assuming powers that make him indistinguishable from an elected emperor. Unbridled executive power is a dangerous precedent to let stand.
Posted by: Tyler DiPietro | May 4, 2007 10:30 PM
First, impeachment just isn't gonna happen. Period. But if it did, would I support it? Absolutely. Bush has failed to uphold his duty to faithfully execute the laws of the land and to protect and preserve the Constitution. That's more than enough for me. And that has nothing to do with partisan anything, as I've never voted Democratic.
Posted by: Ed Brayton | May 4, 2007 10:56 PM
Beyond impeachment and de-funding, there is another option available to Congress, from the "So Crazy It Just Might Work" file: a Constitutional amendment.
If the Bush administration wants to read between the lines and find unfettered authority for the president, We The People can write in between those lines, "Oh No You Don't."
Wouldn't be the first time an Amendment is used to clarify what out to be explicit in the Main Articles; all the Bill of Rights does is forbid the government from doing things that, in theory, it never had the authority to do.
Posted by: Grumpy | May 5, 2007 12:26 AM
Interesting thought, Grumpy.
Those who want to urge Congress to fight the "FISA modernization" proposal can use the form on StopIllegalSpying.org
I edited their sample letter a bit to include McConnell's statement that the Executive has the authority under Article II, because it provides compelling evidence as to why Congress must be proactive to prevent further instances of warrantless surveillance without judicial and congressional oversight.
Posted by: Dissent | May 5, 2007 2:33 PM
The only effective answer is to impeach Bush and Cheney and put them on trial for war crimes, crimes against humanity and treason for starters. Then we must remove all monetary incentives for all people in elective office, this includes publicly financing elections. Certainly, we must also restore the "FAIRNESS DOCTRINE" that Reagan did away with so that we can reasonably guarantee that Americans will, in the future, be well enough informed truthfully, in order to fufill their duty to elect competent officials. No more Limbaugh educations for Americans. Honest, truthful, by law, commentary for all!
Posted by: Mike Doty | May 5, 2007 5:54 PM
The fairness doctrine is an absurd policy that did absolutely nothing. There is more than enough diversity of viewpoint in the media. Anyone can find any position they want to find advocated.
Posted by: Ed Brayton | May 5, 2007 6:26 PM