Monday, January 02, 2006

Here is the problem with the wiretaps

Set aside all the "legal" arguments (which, frankly, laypeople are unqualified to conduct, and which discussions in the press have almost no effect on the courts), and pay attention to what the courts will do. Keep in mind the Supreme Court in the Hamdi decision Alberto Gonzalez cited as support for the authority for an imperial Presidency ruled the Administration had to grant due process to detainees in Gitmo; and Michael Luttig insisted Jose Padilla's case be allowed to go to the Supreme Court on the "enemy combatant" issue. And now there is this:

"We have the remarkable spectacle of a wartime President who, by a series of doubtful legal strategies, has squandered his credibility in the federal courts," says Eugene Fidell, a Washington lawyer who heads the National Institute of Military Justice. "The judges are in as grumpy a mood as I can remember." There will be more trouble to come. Government officials have been telling reporters that the disputed NSA wiretaps played a part in building the case that led to guilty pleas by two plotters: Iyman Faris, an Ohio truck driver who admitted checking out means of destroying the Brooklyn Bridge, and Mohammed Junaid Babar, a New York City man who acknowledged smuggling money and supplies to an al-Qaeda leader in Pakistan, among other things. Now Faris' attorney and dozens of other lawyers involved in some major terrorism cases are planning to file court challenges to see where the information on their clients came from. Miami attorney Kenneth Swartz represents Adham Amin Hassoun, a Lebanese-born Palestinian who lived in Broward County, Fla., and has been charged, along with Padilla, in an alleged conspiracy to commit terrorist acts abroad. Swartz says if any of the wiretaps used to build a case against his client were done "without legal authority, it would be a real constitutional issue."
Dick Cheney may think the Presidency lost too much power under Gerald Ford, but neither he nor the entire Administration are in the position to make that final decision.

Rather like a church, any institution involves a system which requires the compliance of other people. The insistence by Gonzales and others in the Administration that the President has the legal authority to do what they have let him do, stops precisely within the limits of the Administration. Everyone directly under Bush may agree with what he has done (and there are clear indications they do not), but that is not the end of the discussion.

The "real constitutional issue" has yet to hit the courts, but it will, and then all of Bush's attempts to "protect us from terrorists" will come apart like a cheap suit in a rainstorm. Our government does not act on the authority of any one figure, and is not established merely to defend "us" against the threats of "them." The real danger here is that reductio ad absurdum political philosophy, which has clearly become the governing principle of the President of the United States. But that is also a philosophy which is finding little support; and any institution requires the compliance of other people, in order to function.

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