If you’re having trouble with this issue about the president’s warrantless wiretaps, it’s because there isn’t one.
What there is is a political problem. The president has confessed to practices that are unconstitutional; actions for which he can’t blame low-ranking, ill-trained zealots. This is personal. It’s about George W. Bush and no one else. But your Congress (both parties) isn’t about to impeach him, although they wish he’d stop. So they thumb through obscure texts, knit their brows and murmur about the complexity of something they know to be simple.
Take it from the bottom, meaning the foundation.
Bush did NOT swear an oath to “protect and defend America,” although some such duty is implied in Article II, which makes him commander in chief. But the idea that this entails authority to order wiretaps on civilians collapses on itself. If he’s our top general, so to speak, then whatever authority that confers is military, and the military has no jurisdiction over civilians.
Some civil power to protect does exist. But what limits does the Constitution set for it? Regarding wiretaps, turn to the Fourth Amendment. It doesn’t say that people’s right to be secure in their homes and “effects” may be violated only by Congress or only by the judiciary or only by the president. It says that the right “shall not be violated.” It doesn’t say that Congress shall issue no warrants without probable cause, or the judiciary shall not issue such warrants, or the president shall not issue them. It says “no Warrants shall issue” in violation of the conditions that immediately follow.
The president, having routinely ignored the Fourth Amendment rights of a host of victims, insists that the amendment doesn’t apply to him because of an invisible grant of discretion hiding in Article II. He invokes some heretofore undetected constitutional immunity to the Constitution, and asserts that the unwritten trumps the written. (Strict constructionists, where are you?) It’s reminiscent of another pious but pointless defense: that nobody bugged communications in which both parties were on U.S. soil. Finally, critics are asking the obvious question: Why not? If it’s his duty to protect America by ignoring the Fourth Amendment, what difference does it make where one of the suspects plants his feet?
Go back to the oath Bush DID take, twice. In it he promised (as required by Article II), so help him God (not required, but adding it was his decision), to “preserve, protect and defend the constitution of the United States.” Was it clear to you, as he spoke, that he meant to preserve, protect and defend only select parts of it?
Members of Congress, most of whom have personal reasons for avoiding the constitutional brawl that the president is forcing, tarry over the law that created a secret court to expedite urgent requests for warrants and even provides for issuance of a warrant after the deed has been done. But federal laws don’t trump the Constitution. How long will it take for someone to question the constitutionality of the act itself? Without question, Congress has power to create “inferior” courts. But to create one with power to waive a part of the Constitution, doesn’t it need to amend the Constitution?
The truth? The president ordered unlawful things that he can’t blame on anyone else. There’s no one he can sacrifice, no aide or faithful secretary to fall on his sword. So now he’s escalating, preferring to be thought a fool rather than a knave. And those who should be wrestling him to the ground are instead offering him a fig leaf.
Congress, whose job it is to stop him, will leave the task to the courts, which it will then vilify for having done their best with the mud-ball Congress lobbed at them.
So much for leadership. So much for honor.
Read On
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