Maybe I’m more worked up about the whole secret sur­veil­lance of Amer­i­can cit­i­zens than oth­ers because I actu­al­ly make trans-Atlantic calls on a reg­u­lar basis. Ms. TfK is in Lux­em­bourg for a short stint, she has fam­i­ly in Europe, and we both make reg­u­lar calls to peo­ple across the Atlantic. Nei­ther of us has any­thing to do with al Qae­da, but that’s scant pro­tec­tion from the Peep­ing Tom in Chief.

Bush has claimed that he act­ed under his author­i­ty as com­man­der in chief. That’s Arti­cle 2, sec­tion 2, for those keep­ing score at home. That sim­ply states that “The pres­i­dent shall be com­man­der in chief of the army and navy of the Unit­ed States; and of the mili­tias of the sev­er­al states, when called into the actu­al ser­vice of the Unit­ed States.” A right to secret­ly spy on cit­i­zens does­n’t even enter the penum­bra of that phrase (though the Air Force does).
But maybe you could spin the NSA into the penum­bra right next to the Air Force, and he has the right to order them to do what­ev­er he wants, right? 

Not so much. Arti­cle 1, sec­tion 8 grants Con­gress the pow­er “to pro­vide for call­ing forth the mili­tia to exe­cute the laws of the union, sup­press insur­rec­tions, and repel inva­sions,” and also “to pro­vide for orga­niz­ing, arm­ing, and dis­ci­plin­ing the mili­tia, and for gov­ern­ing such parts of them as may be employed in the ser­vice of the Unit­ed States.” That split is entire­ly unsur­pris­ing, since it gives the Pres­i­dent pow­er to exe­cute the law, and Con­gress pow­er to make it. The pres­i­den­t’s actions are still bound by leg­is­la­tion, and the leg­is­la­tion for­bids exact­ly what he did. It for­bade those actions because a pre­vi­ous pres­i­dent tried the same thing when our ene­my had nuclear weapons aimed at us, and the Con­gress did­n’t like it.

Does any­thing else bind the Pres­i­den­t’s actions, and those of Con­gress? Can any­thing trump the orig­i­nal text of the Constitution? 

Of course, a con­sti­tu­tion­al amend­ment. The fourth one that passed says “The rights of the peo­ple to be secure in their per­sons, hous­es, papers, and effects, against unrea­son­able search­es and seizures, shall not be vio­lat­ed, and no War­rants shall issue, but upon prob­a­ble cause, sup­port­ed by Oath or affir­ma­tion, and par­tic­u­lar­ly describ­ing the place to be searched, and the per­sons or things to be seized.”

That pro­vi­sion trumps the Pres­i­den­t’s pow­ers as com­man­der in chief, and Con­gress’s pow­er to dis­ci­pline the military.

What would the founders have said about Bush? Pub­lius (aka Alexan­der Hamil­ton) quotes approv­ing­ly from Black­stone in Fed­er­al­ist 84:

To bereave a man of life … 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 gaol, where his suf­fer­ings are unknown and for­got­ten, is a less pub­lic, a less strik­ing, and there­fore a more dan­ger­ous engine of arbi­trary government.

Hamil­ton’s empha­sis. This is by way of argu­ing that the guar­an­tee of habeas cor­pus is suf­fi­cient to encom­pass much of what we see in the Bill of Rights, and in this instance, that’s prob­a­bly true. It implies a pre­sen­ta­tion of evi­dence to a com­pe­tent author­i­ty before seiz­ing prop­er­ty or life. By any stan­dard, the black sites, secret pris­ons, tor­ture, and secret sur­veil­lance of the Bush admin­is­tra­tion fall with­in the realm of what Black­stone (and Hamil­ton through him) decries as despo­tism and tyranny.

It’s nev­er worth for­get­ting that one of the com­plaints list­ed in the Dec­la­ra­tion of Inde­pen­dence is that King George “has affect­ed to ren­der the Mil­i­tary inde­pen­dent of and supe­ri­or to the Civ­il pow­er.” This is exact­ly and pre­cise­ly what the “com­man­der in chief” defense would do, and it’s as unac­cept­able now as it was then. 

Once upon a time, Josh Mar­shall pro­posed the Bill Clin­ton test, that before you decry some­thing Bush does (Repub­li­cans: read “decry” as “praise”), you should ask what you’d say if Bill Clin­ton did it.

I think Repub­li­cans would be demand­ing impeach­ment if Clin­ton tried this. It’s the only intel­lec­tu­al­ly hon­est thing to say when the Pres­i­dent proud­ly admits he broke the law and intends to keep doing it. Instapun­dit and LGF are unit­ed in their desire to make the New York Times pay for telling us about the crim­i­nal acts of the Pres­i­dent, but don’t seem too wor­ried about their civ­il liberties.

For the slow-wit­ted (and I include Instapun­dit in that cat­e­go­ry), the issue is not even the Con­sti­tu­tion­al issue I raised here. That’s broad­er, but bare­ly rel­e­vant. We have a gov­ern­ment of lim­it­ed pow­ers. The pres­i­den­t’s author­i­ty is bound­ed by laws. If a law for­bids him from doing some­thing, he can’t do it. And the law for­bids him from doing what he did. It real­ly is that sim­ple. As a law pro­fes­sor, I had hoped Insty would real­ize at least that much.

He makes a big deal about hav­ing taught a FISA class once upon a time, but some­how thinks there’s no legal rem­e­dy for ille­gal taps, despite the fact that FISA has spe­cif­ic sanc­tions with­in it. I’m not a lawyer, and I could fig­ure that much out. 

“Sins Of My Father” by Tom Waits from the album Real Gone (2004, 10:36).

And no, Capi­tol Hill Blue is not a cred­i­ble source.