Bush is back on the offensive this week defending his illegal spying program. One wonders that with Democrats not sounding the attack horns so loudly, distracted by Alito, why such the loud defense from Bush? It seems to me that they know they’re in too deep, and relying on sketchy legal reasoning.

He said he “had all kinds of lawyers review the process” to ensure it didn’t violate civil liberties or the law.

And he insisted that a recent Supreme Court decision backs his contention that he had the authority to order the program through a resolution Congress passed after the 2001 terrorist attacks that lets him use force in the anti-terror fight.

“I’m not a lawyer, but I can tell you what it means: It means Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics,” Bush said.

“All-kinds,” eh George? Look I don’t think you need to be a lawyer to be President, but can you at least be a little more specific when discussing the law, it is after all what you’re supposed to be enforcing as President. It seems that the defense will take on one that has been used in the past, and has failed in the past. That because it is a matter of national security the President doesn’t have to follow the usual rules, and must act as he sees fit to protect the nation. Harry Reid hit the nail on the head when he said “We can be strong and operate under the rule of law…These are not mutually exclusive principles ” they are the principles upon which our nation was founded.”

What is even more frustrating about the entire thing is that the FISA court, which was a court that handled surveillance requests in private, was established for just this kind of wiretapping. The FISA court allowed government to present information to a court off the public record and receive a warrant. The FISA court was not exactly stopping the government from investigating terrorists, on the contrary it long supported most Presidents and their requests. Now, however, the standard that Bush’s Justice Department presented was so low that FISA wouldn’t approve it, and so Bush circumvented the entire legal process.

The only other President who I can recall who tried to use the national security argument as openly as Bush is doing was none other than Richard Nixon. For a bit of history Nixon’s lawyers contended to the Court that they could use information obtained by warrantless wiretaps in court, since they didn’t need a warrant if they acted in the name of national security. The case is one of my favorites perhaps because of its unique name: United States v. United States District Court. I learned of this case in Freshman year when I studied the work of Arthur Kinnoy one of the nation’s most famous civil rights lawyers. This case was decided unanimously 8-0 (Rehnquist had to recuse himself as he prior to appointment was the architect of this theory), that the President did not have this type of unfettered power to spy on Americans.

The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316-318.

Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.

It should be important to note that this case deals only with domestic surveillance and the issues of national security in the domestic realm and not internationally. FindLaw however has put together excellent resources for case law on the Bill of Rights, and in particular the Fourth Amendment. In their annotations they find this to say regarding the use of wiretaps in national security:

The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled. Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ”United States person” will be overheard.

And so of course we can in many ways come full circle, because Rehnquist who was “just a lawyer” for Nixon could be compared to Roberts and Alito who were “just lawyers” for Reagan. The reason the Alito nomination is so important is because the issue of presidential power, as was brought up at the hearings, will be crucial into whether or not the truth of Bush’s program is seen for its unconstitutionality and blatant disregard of FISA and the work Congress and the Judiciary have done to provide ample, expedient, but most of all lawful resources for the President to use in protecting our country.

We know now that this program has in fact overheard the voices and conversations of persons of the United States, in this case a pacifist group in Baltimore, not exactly your group of jihadists, and in fact a waste of resources that could be used to find said jihadists. Congress gave the executive a wide range of powers after 9/11 and did so in the PATRIOT Act. That Bush is relying on a resolution of force against Iraq and Afghanistan as the basis for spying on American’s is simply ridiculous. I wonder, and perhaps someone else could answer this, if Bush justifies any spying done on Americans with the resolutions of force, would that not be a violation of posse comitatus? At every stage the Congress has provided for what the executive can and can not do in regard to surveillance in America, and I think everyone would agree they’ve been pretty generous.

When Congress has saw fit to give the executive further powers to protect the nation it has acted both with the PATRIOT Act, and years earlier with the establishment of the FISA court. This recent trampling of civil liberties seems to be the final straw for members of Congress of both parties who still believe that the oath they took to uphold the Constitution actually means something. Now let us hope they do something about it.