Fayetteville Observer (Ft. Bragg): Bush vs. Congress on Wiretaps

[Hissyspit]

http://www.fayettevillenc.com/article?id=226206

Published on Saturday, February 11, 2006

Word games
Gene Smith, senior editorial writer

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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.

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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?

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