Tuesday, August 21, 2007

Terrorist Surveillance Program: Powers Seized and Granted

The Bush Administration agenda is defined by a constant push to increase the power of the executive branch. This expansion has been performed in a variety of ways: through laws like the PATRIOT Act and the recent FISA changes, through editorials and talking points advancing theories such as the "energy of the executive" and the "Unitary Executive", through the use of signing statements and executive orders based on those theories rather than commonly understood laws and the power of the President -- and most of all through activities not just outside the scope of the law but in direct opposition to it.

Power granted can be revoked; power seized can only be wrested back.

The Terrorist Surveillance Program is but one example of this axiom. What should be a question of law has been reduced to a contest of wills, with the Bush Administration daring Congress to take some action. By now the story is old: Congress attempts to investigate and the administration stonewalls, as documented in this Washington Post article.

Vice President Cheney's office acknowledged for the first time yesterday that it has dozens of documents related to the administration's warrantless surveillance program, but it signaled that it will resist efforts by congressional Democrats to obtain them.

The disclosure by Cheney's counsel, Shannen W. Coffin, came on the day that the Senate Judiciary Committee had set as a deadline for the Bush administration to turn over documents related to the wiretapping program, which allowed the National Security Agency to monitor communications between the United States and overseas without warrants.
The disclosure of the existence of the documents and their dates sheds new light on some events surrounding the NSA program, including a now-famous legal dispute in March 2004. A half-dozen senior Justice officials threatened to resign if the White House did not agree to change parts of the program that Justice lawyers had determined were illegal.

Contrary to what is bolded above, executive-branch programs do not allow the NSA to break US law. The former head of the NSA, General Michael Hayden, made similar claims in this YouTube clip. (Action begins at the 1:30 mark.) After he lies about the content of the 4th Amendment he goes on to claim that he was merely following a "lawful order" from the Attorney General -- even though that "lawful order" was so offensive and illegal that Justice lawyers threatened mass resignation. Wiretapping without warrant (in the way the TSP "allowed") is not a power granted by Congress and upheld by the Court; it is specifically illegal according to FISA laws.

That the Bush Administration's lawlessness has gone unpunished is the single greatest victory in its quest to expand power for itself. Now that the law has been broken without reprisal the abuses that were previously considered egregious now appear to occupy the middle ground. Unethical actions, or actions that merely push the boundaries rather than vault over them, are the misdemeanors to the high crimes represented by the TSP, if only by comparison.

The window of discussion has moved. It should be unthinkable that an American citizen could be unilaterally declared an unlawful enemy combatant, detained, tortured and denied legal counsel indefinitely. Yet the administration claims to have that power and has used it -- and why not? With a Congress unwilling or unable to effectively counter executive abuses the administration is free to do as it pleases while side-stepping definitive legal showdowns in the Court.

By not taking swift and strong action Congress has tacitly granted that extraordinary abuse of power, in direct violation of the law, is little more than "politics as usual." Outrageous behavior has been normalized, regardless of the end result of the TSP inquiries. The longer Congress meanders without definitive action the more extreme that action must be to stuff some of the genie back in the bottle.

Until that happens the Bush Administration knows that it can break the law without punishment -- effectively rendering laws into suggestions and executive power nearly absolute.

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