Saturday, August 19, 2006

Backs Against The Wall

When I put up this post yesterday I knew that there would be a lot more to be said about the NSA wiretapping decision reached by US District Court Judge Anna Diggs Taylor yesterday. The thought at the top of my mind was, "doesn't this expose a lot of people to felony charges?" Well, it does indeed, as pointed out in the follow-up Glenn Greenwald article on the matter here. In fact, the legal consequences for defying the FISA laws passed after Watergate could be weighing heavily on the minds of a number of Bush Administration officials, not to mention those in the NSA who carried out the wiretapping. In retrospect Judge Taylor may have erred by not issuing arrest warrants for at least some of the individuals involved. I think she committed a worse error by allowing the wiretaps to continue in spite of her ruling while awaiting further resolution.
Going back to Glenn's first column yesterday for details of the ruling;
  • The court ... emphasized...that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny.
  • the court ruled -- rather emphatically and without much doubt -- that warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures
  • the court ruled independently -- again, without all that much reasoning -- that the NSA program violates the plaintiffs' First Amendment rights
  • the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution
  • since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.
  • the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution."...the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.
  • the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA. (Which injunction was immediately stayed pending appeal)
The declaration that the program was in violation of FISA is the sticky point on which Glenn's second column follows up. This is serious stuff; the penalty for violating FISA is 5 years in jail and a $10,000 fine. That's got to have a lot of the people who wear headphones and take notes feeling a little uncomfortable. Higher-ups could be responsible for thousands of individual incidents, the fines reaching levels that would even bankrupt Dick Cheney's Halliburton-bloated holdings. Not to mention the jail time.
It is not unreasonable to assume that the potential defendants of FISA charges, as well as those who are complicit in the torture and murder of those illegally detained in the Great War on Terror will do everything in their power to escape justice. And when 'everything in their power' includes the powers of the Bush White House and the Gonzales Justice Department, that could mean martial law. As scary as that sounds, I wouldn't bet against it. Their backs are really up against the wall, and they know it.
Originally Posted at Les Enrag├ęs