HOME | BIO | MUSIC | JOURNEYS BY DJ | STUDIO BLOG | POLITICAL BLOG | BOOKING INFO | CONTACT

Plenty of people have already passed plenty of comment on the Justice Department's recent announcement that it would "allow" the federal judiciary to oversee its warantless wiretapping program. And because I hadn't blogged much in a few days, I was prepared to let it go without comment. But this lead in today's NYT story needs to be addressed:

The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

This really should go without saying, but... the FISA Court exists, like every other aspect of the federal government not explicitly defined by the Constitution, because of a series of statutes enacted by Congress. As a court, its jurisdiction is explicitly defined. It is not, as both this article and this administration seem to think, something that is "worked out" on the fly and in an "innovative" manner by the executive branch.

The FISA statues explicitly describe the procedures that the executive branch must follow to obtain a warrant. This is not something that is open to negotiation. Unless, of course, that negotiation takes place with congress in an effort to rewrite the law. No matter how much they might wish otherwise, the executive branch can't simply negotiate "innovate" new extra-legal procedures. That just is not how our system works.

Remember that whole "judicial activism" thing? If this isn't "activism, I don't know what is. Congress writes the laws. In this case, Congress has already written specific laws that directly apply to these very specific circumstances. It doesn't matter that this administration doesn't like them. They have a constitutional obligation to follow them. That is how our system works.

UPDATE: And while we're on the subject of the Justice Department's apparent inability to understand our constitution, you really need to see this from today's Senate hearing with Alberto Gonzales:

Specter: Now wait a minute, wait a minute. The Constitution says you can't take it away except in the case of invasion or rebellion. Doesn't that mean you have the right of habeas corpus?

Gonzales: I meant by that comment that the Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended.

The Attorney General of the United States apparently believes that the Constitution doesn't guarantee citizens the right of habeas corpus. I've heard some bizarre interpretations of the Constitution in my day, but this may well be the worst. I mean, this makes "it depends what the definition of "is" is" look like child's play. "It doesn't say we have the right. It merely says it cannot be suspended." Wonderful.

Here, for the record, is what the Constitution says:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

And here, for the record, is what Alexander Hamilton wrote about it in Federalist 84. The emphasis in bold, for the record, is mine. The emphasis in all capitals, for the record, is his:

The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. [ed note - "it = the constitution] The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: ``To bereave a man of life, Usays he,e or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.'' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls ``the BULWARK of the British Constitution.''2

Habeas Corpus isn't just some random aside in the Constitution. Its one of its most central rights, so central in fact that the only discussion of it is in describing the very limited circumstances under which it can be suspended.

Honestly, his opinion on this is so absurd that its almost not even worth discussing. Except, of course, for the fact that the man offering the opinion is the Attorney General of the United States.

When will this nightmare end?