In a guest editorial published in today's Atlanta Journal Constitution,
Bob Barr, former U.S. Attorney, former U.S. Congressman, former member of the
House Impeachment Team, has weighed in on the BushCo spy crimes scandal.
Mr. Barr throughly deconstructs and lays waste to the Administration's spin effort, addressing in turn various of the purported justifications advanced by King George and concluding the law was violated. Although behind a registration-required firewall, the piece is most definitely worth the read.
A few highlights below the fold.
Justification No. 1: Constitutional War Powers
... I reread Article II to determine if in fact there was language in it that I had missed previously, that when the president serves as commander in chief, he can order federal agencies to violate the law.
Of course, I found no such authority, because none exists. Such was never even presumed to be implied by the drafters of that magnificent document. In fact, federal courts -- which over the decades have deferred greatly to the power of the president when he takes action involving national security -- have never held that when a president dons the hat of commander in chief he simultaneously is immunized from having to follow the laws of the land or of the other provisions contained in the Constitution, including the Bill of Rights.
Justification No. 2: Protecting Us From Terrorists
Of course, there is no "responsibility-to-protect-my-people" exception to the rule of law or the applicability of the Bill of Rights anywhere in the Constitution, or in any prior decision of any federal court.
Justification No. 3: Congress' Post - 9/11 Resolution
... [A] reading of that resolution, whether cursory or in-depth, reveals no such authority, explicit or implied. The resolution simply authorized the president "to use all necessary and appropriate force" against those responsible for planning, carrying out or assisting in the attacks of Sept. 11. The resolution went on to provide that such "necessary and appropriate force" might be used to prevent future acts of terrorism. Importantly, the resolution provided no authority whatsoever for any actions on the part of the president beyond authorizing the use of force..
The Big Conclusion
... [W]as the surveillance ordered by the president unlawful? I believe it was, but don't rely on my analysis. Here is what Gen. Michael Hayden, then the head of the NSA and now the deputy director of national intelligence, told a congressional panel in April 2000 (a hearing at which I also testified), in explaining whether the government could intercept communications of an American citizen in this country: "If that American person is in the United States of America, I must have a court order before I initiate any collection against him or her."
Seems pretty clear to me. And, if the president doesn't like the law, the solution should be to amend, not violate it.
When Republican loyalists like Bob Barr step forward with truth-telling of this magnitude, I would suggest some very substantial movement is taking place. It certainly, at the least, supports the notion that the tide is finally turning.