From the Salmon

This has the potential to be very, very big.

At least at this point in what is a developing story, it appears that President Bush decided in 2002 that the NSA should be allowed to conduct electronic surveillance of communications originating in the US without first obtaining the warrant required by the Foreign Intelligence Surveillance Act. On Saturday, in his weekly radio address, Bush said that not only had he authorized this surveillance at least 30 times, but that he would continue to do so.

This is important for a number of reasons. One is that Bush appears to have broken the law. That would be bad enough, but it actually may very well be bigger than that. It seems that Bush has decided that there are certain parts of the law that don’t apply to his administration during wartime.

This is unacceptable.

Presidents don’t get to decide which laws apply to them. They all apply. Every last one. Even in wartime. The President can’t just issue a secret executive order making it okay to operate outside the law. If Bush thinks that a particular law hinders his ability to protect the United States, then he should lobby Congress to change it.

Certainly, in times when national security is threatened, it’s appropriate to discuss whether we need to give up some of our freedom in order to protect ourselves. But that’s exactly the point. It needs to be a discussion. There needs to be transparency. And people in the US need to understand the tradeoffs that they’re making.

President Bush thinks that the NSA should be able to spy on people in the US without a warrant? He needs to make a public case and let Congress decide whether the law should be changed (and then he’ll likely have to convince the Supreme Court that the law doesn’t violate the Fourth Amendment). President Bush thinks that the CIA should be allowed to torture suspected terrorists in foreign prisons or send prisoners to other countries to be tortured? He has to convince us to withdraw from international treaties first.

The President is not above the law. The President is not a king.

This needs to be investigated aggressively. Ideally, this investigation would take place in Congress. But the modern political party (particularly the current Republican party) has dulled our Madisonian institutional antagonism to the point where I highly doubt this will happen in a meaningful way.

If Congress was truly serious about its responsibility to oversee the executive branch, it would start with a subpoena for the records of exactly what surveillance the Bush administration has done without appropriate warrants issued by the Foreign Intelligence Surveillance Court. Then, Congress would give the president this ultimatum: “If you claim executive privilege, we’ll hold up the Patriot Act. You want to take this to the Supreme Court? Fine, but it won’t be a court that features one Mr. Alito. And if you stonewall us even once, we’ll give widely expanded powers to Mr. Patrick Fitzgerald. Does that work for you, Mr. President? Great. We’ll see you on Tuesday. Under oath. And without your vice president.” And the first questions Congress would ask would be “The FISA gave you a perfectly serviceable system to approve legal surveillance. Why didn’t you use it? And who are you spying on without the approval of the FISC?”

But that won’t happen. Because most Republican congresspeople are Republicans first and members of Congress second.

I’m not presuming guilt here, and I’m not talking about punishment. I’m no lawyer or legal scholar, and I will readily admit that I’m relying on others to point out the relevant passages of the FISA. Maybe I’m missing something big here. As always, I’m open to well-reasoned arguments to the contrary. But it seems to me that these are serious charges that are at least worthy of investigation. And that needs to start with Congress resuming its oversight responsibility.

Update:

A few links for your perusal and so I can find them later…

Two press conferences today: Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence and President George W. Bush.

And two GWU law professors offer some preliminary legal analysis: Orin Kerr, specialist in internet surveillance law, and Daniel Solove, specialist in information privacy law.

And, for good measure, one more piece from Obsidian Wings’ Hilzoy.