Enemy Combatant
Monday, January 02, 2006
Uh -- what Ezra Klein said:He Ain't The Law
Partisan Republicans would have you believe that the legal contention in this issue is over whether or not FISA was constitutional. If it is, what Bush did was illegal. If it isn't, one could make the argument. They argue the latter.
But here's the thing: FISA, currently, is the law. And it's not an incidental law with language that accidentally enlarges it to apply to this case. Congress passed it specifically to constrain executive authority over surveillance matter. Specifically to outlaw, well, this.
When Congress passes a law that certain groups think to be unconstitutional, there's a procedure worked out for pursuing resolution. It involves a handful of old dudes and a couple old women who wear long robes and issue complex legal opinions on constitutional matters. And until they rule one way or the other (or pass an injunction), the controversial legislation remains legally binding. That's why a member of NORML can't walk down the street smoking a spliff and a wingnut mayor in Mississippi can't prosecute women who have abortions. Laws are in effect until they are repealed or declared invalid by the Supreme Court. Whatever you think of FISA's legality, it was neither repealed nor declared invalid by the Supreme Court. It was in effect.
Bush's actions were illegal. And that's all there is to that. You can argue that they were justified, or righteous, or that the legislative structure is outmoded and wrong, but none of that changes the fact that they were in flagrant violation of the law of the land, a law the White House could have attempted to amend or asked the Supreme Court to invalidate. Which means that not only were Bush's actions illegal, but he offered no attempt to make them legal.
One more thing: Under the relaxed requirements of the FISA statute, the President is authorized to immediately begin wiretaps upon a congressional declaration of war, and given 15 days to continue such wiretaps before even being required to request a warrant for doing so from the FISA Court.
Why that 15-day, warrantless "grace" period, you ask? According to the congressional Conference Report issued at the time FISA was passed, "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720, at 34 (1978).
This wasn't just Bush "ignoring" Congress. This was a gigantic, blatant "Fuck you!" from Bush to the Congress. Let's see what (if anything) this Congress will do about it.
