I don’t personally have a problem with the NSA tapping phone lines or e-mail communications.

What I think is the most offensive thing about the spying-on-American-citizens-without-a-warrant affair is the idea that the President of the United States would get on TV and say that he was authorized by Article II of the Constitution to defend the country. Bill O’Reilly says there is no way that the President, in his own mind, believes that he broke the law, and, okay, I'll agree; Bush was sincere in his belief. Which leaves me wondering how in the hell you can be President of the United States and take an oath of office to faithfully protect and defend a document that you don’t vaguely understand? I realize that Bush is not a lawyer, but doesn’t the President have to have the basic knowledge that you would get from an introductory undergraduate government class?

I saw Senator Rick Santorum interviewed on Book TV a few months ago and it was clear that he didn’t have a clue (or simply didn’t care) what the Necessary and Proper Clause means.

Isn’t there some way we can force members of Congress and the President to be able to pass a basic first-year Con Law exam before taking office –– or at least PoliSci 101?

Even if the Administration’s interpretation of the Constitution is not as absurd as it seems on its face, it’s certainly a fairly “liberal” reading of the document by people who constantly rail against “judicial activism” while espousing the merits of “strict construction” - to say the very least.

Again, I don’t personally have a problem with the government spying on Americans.

But I do have a problem with a government agency spying on Americans without any oversight. Because the intelligence that is developed does not, should not, and cannot belong to individuals or parties or administrations. It is knowledge that is bought and paid for by the public which must be used for the common benefit and protection of the public and held in the public trust. And when an administration is allowed to develop intelligence secretly, there are no checks and balances to prevent the gathering or appropriation of such information for private gain.

There is, of course, no evidence (nor would I expect to find any) that Bush or his Administration directed surveillance for any improper purposes. But:

Is there any doubt that Karl Rove would use sensitive information gained by the NSA to blackmail or embarrass a rival for political gain?

Inevitably, you will end up with a Richard Nixon or a J. Edgar Hoover with his own private lists of enemies and secret files expropriating the resources of the Federal Government for his own personal or political ends.

The other problem with spying on Americans without a warrant is that it’s, quite simply, against the law.

Maybe the law should be changed. Frankly, it’s hard to imagine with the post-9/11 sentiments of the American people that the law could not have been changed in 2001. (Although it would seem that the emergency use of wire taps for 72 hours before presentation to a secret national security tribunal which has only refused to issue a warrant in 4 out of over 18,000 cases since 1978 might be sufficient.) But if America is going to stand for anything, it should stand for the proposition that no one, not even the President, is above the Law.

Again, we have an arrogant, paternalistic, condescending attitude towards the American people who must be protected from themselves by the President, who knows better.

Again, we have an Administration that is, in its own mind, above the Law.

First it was the Kyoto Accords, then U.N. Resolutions, the Geneva Convention, the Bill of Rights, the Identity Protection Act, and now the Foreign Intelligence Surveillance Act.

Despite the Big Picture ramifications, I basically felt that President Clinton should have been impeached. Even though what he did had nothing to do with the governing of the country, or national security, or political corruption, or anything of any true relevance or importance to my life, or yours, I don’t think you can have the head of the branch of government charged with faithfully executing the law of the land committing perjury.

I’m sure that Bush has done some good things while in office.

But even a blind squirrel finds a few acorns every once in a while.

Even in times of war, you cannot have a President who believes that he is above the Law.

Of course, if he were impeached, we’d be stuck with Cheney.



[Note - The views expressed on this political blog and legal blog are the personal views of Steve Herman and are not intended to represent the views of Herman Herman Katz & Cotlar, LTLA, TLPJ, the Civil Justice Foundation, or any other organization.]

On April 24, 2004, while running for re-election, Bush assured an audience in Buffalo that “any time you hear the United States talking about a wiretap, it requires a court order. Nothing has changed. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

Why did he lie?