Originally published in Minneapolis Star Tribune, 21 December 2005
Last Thursday [15 December 2005], The New York Times exposed the most significant violation of federal surveillance law in the post-Watergate era. President Bush secretly authorized the NSA to engage in domestic spying, wiretapping thousands of Americans and bypassing the legal procedures regulating this activity.
This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch 27 years ago—on the last occasion that the executive branch abused its power so broadly.
In defending this secret spying on Americans, Bush said that he relied on his constitutional powers (Article 2) and the joint resolution passed by Congress after 9/11 that led to the war in Iraq. This rationale was spelled out in a memo written by John Yoo, a White House attorney, less than two weeks after the attacks of 9/11. It's a dense read and a terrifying piece of legal contortion-ism, but it basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country ... merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism ...