

Lawyers said Bush couldn’t spy on Americans. He did it anyway. - Libertatea
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/27/lawyers-said-bush-couldnt-spy-on-americans-he-did-it-anyway/?tid=rssfeed

======
flexie
What is even worse is that the next president - who taught constitutional law
for more than a decade - cannot see the problem with his government spying on
everybody.

~~~
rayiner
My wife mentioned this in the car yesterday, and I think its apt. Bush was an
MBA. He didn't care about the law, he just ignored it. Obama is a JD. He does
care about the law, but he's also willing to entertain legal positions that
make fine distinctions to go right up against what the law allows. The public,
however, can't really tell the difference. To them (the subset of them that
care at all) the legal distinction between collecting data and collecting
metadata or targeting only non-U.S. persons doesn't resonate, and they can't
see the difference between what Obama is doing and what Bush was doing.

~~~
bradleyland
It seems to me like the distinction between someone who outright lies to you
and one who omits the truth. Neither are a quality I want in a President.

------
TheFuture
That's right, it's still Bush's fault.

We're in Obama's 2nd term, this is getting old.

~~~
sigzero
It started under Bush, so this is one instance where I think they are right.
However, I blame Obama more because he was supposed to do the opposite.

~~~
jerf
Are you sure it started under Bush? Accusations that Echelon was being used
for industrial espionage date back to the 90s.

This is relevant because a creeping erosion needs to be fought differently
than something that had a distinct event that caused it.

------
grandalf
New strategy: Make it about Bush. Obama is at least as culpable b/c he would
have had a good excuse to raise a red flag about the improprieties upon taking
office.

~~~
mcherm
I suspect that Obama may actually be more culpable. But I can't read an
article in a major US newspaper about the legal opinions in the Obama white
house, so I can't start excoriating him for ignoring (and overriding) legal
council. I can (and hereby do) excoriate him for conducting the least open and
transparent white house I have experienced. As certain top politicians have
pointed out[1], this is a terrible way to run a government.

[1]
[http://www.whitehouse.gov/the_press_office/TransparencyandOp...](http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment)

~~~
dllthomas
Spying-While-Black?

------
itsallbs
This is why transparency is essential to the processes of government. Without
it, the powers that be can increase their authority unchecked. Concerns over
national security should come second to whether or not government is truly
acting in the best interests of the public. There are tradeoffs for security,
but privacy should not be the price we pay to remain "free."

~~~
chunkyslink
hence the whistleblowers

------
pvnick
For someone who surrounded himself with lawyers who thought it was legal to
crush children's testicles to extract information during enhanced
interrogation [1], I find this particularly upsetting.

[1] [http://www.revcom.us/a/026/torture-victims-confront-
advocate...](http://www.revcom.us/a/026/torture-victims-confront-advocate.htm)

~~~
twoodfin
It's a sticky question how much Congress can restrain the President when
executing his war powers. Obviously such an action is morally abhorrent, but
some might argue that so is dropping an atomic bomb among a civilian
population. Could Congress, had it been so inclined, have passed a law to
prevent Truman from doing so? I don't know the answer, and I'm not sure you do
either.

Who we elect President matters. This is one reason why.

~~~
belorn
Don't congress need to actually declare war before the President gets to
execute war powers?

Congress hasn't declared war in ages.

~~~
rayiner
The only thing the Constitution says about the subject is that "Congress shall
have the power to... declare war." It doesn't give a specific format for an
"official declaration of war" or anything like that. Congress hasn't declared
an official war since World War II, but the actions in Iraq and Afghanistan
were backed up by Congressional resolutions authorizing force against those
regimes. Congress never declared war against Tripoli during the Barbary Wars
(just 12 years after the signing of the Constitution) so at least historically
it doesn't seem like the founding generation believed it necessary to pass
some "official declaration of war" in order to signal Congress's approval for
the President to execute war.

~~~
scotch_drinker
But previously, war meant some clear and present enemy like "Japan" or
"Germany". Now the president has been given almost carte blanche access to
fight a war on "Terror", a term so nebulous as to allow the president the
right to do whatever he wants including spy on American citizens. While it's
true Congress gave the president the ability to fight a War on Terror (or
drugs or unicorns or whatever), it's the Congress who should be reining in
that power when it gets out of hand. Instead they sit around and collect their
checks.

I'm not as worried about an "official declaration of war" since the
Constitution isn't clear on that need. I do wish Congress would grow a set of
balls and do what's necessary to rein in presidential power regarding a
ridiculous war on something we can't even see, much less defeat.

~~~
rayiner
During the Iraq and Afghanistan wars, Congress authorized the use of force
against the Iraqi government, and Al Qaeda and agents of Al Qaeda. I don't see
how the latter is any more nebulous than Congress's authorization of force
against the Barbary pirates in 1801.

~~~
scotch_drinker
I'm not talking about those wars. I'm talking about the War On Terror which
was the genesis for spying on Americans. We don't have a war on Al Qaeda, we
have a war on Terror. It doesn't get anymore nebulous than that. Neither Bush
nor Obama would stand before the American People and say that the
authorization of force in Iraq justified a sweeping surveillance program that
includes American citizens. But the War on Terror enables them to do exactly
that because of its murkiness. I don't blame either Bush or Obama for taking
advantage of the power vacuum left by Congress in the War on Terror. I just
wish Congress would take some of that power back.

------
mtgx
It seems like the law enforcement/spy agencies modus operandi: do it illegally
for a few years, and during this time lobby Congress and the president to make
it "legal".

Then, in case anyone catches on to what they were up to and sues them, lobby
Congress to give them all immunity for their previous illegal activities.

Rinse and repeat. Nobody ever gets punished, and their imagination to what
they can achieve with technology is the only limit, because they can set up
whatever misleading legal structure around it to justify their actions, after
the fact.

It seems pretty clear that they have absolutely no respect for the _spirit_ of
the law anymore, and they're always seeking for loopholes and twisted
interpretations of the law (that they keep secret) to allow them do what they
want.

> After more than a decade, opponents of Bush’s surveillance programs have
> still not had an opportunity to challenge them in court

And this is why America needs a Constitutional Court (not secret) to add
another check on the government's power and stop them from passing
unconstitutional laws, that can only be verified for constitutionality 10-20
years later, and ruin some people's lives in the process, while growing a
monster for decades.

~~~
rosser
_And this is why America needs a Constitutional Court..._

While avoiding broaching the interminable debate on whether or not they're,
you know, _actually doing their jobs_ , I thought that was the very definition
of SCOTUS.

EDIT: I'm avoiding that debate because ISTM that one's position thereon is
most likely a function of their _politics_ , and not of whether or not the
sitting justices — let alone the institution, itself — are an adequate
implementation of the thing they were intended to be by Article III.

~~~
galadriel
The fact that courts can declare laws to be unconstitutional is a hack out of
Supremacy clause, as decided by the SCOTUS itself in one of the early cases.
All other rules still apply, such as proving your standing for harm, which you
cannot, if the executive keeps everything secret.

A proper constitutional court (as implemented by many other countries) is much
more suited to these kinds of cases, which concern the spirit of Constitution,
rather than specifics of harm and injuries to one specific entity.

~~~
aclevernickname
the case the parent refers to is Marbury V. Madison, where SCOTUS assumes the
ability to interpret matters of constitutionality.

------
gnosis
The legalistic bickering in this thread is like a debate among frogs as to the
constitutionality of their being placed in to a pot of boiling water.

------
DanielBMarkham
I can tell this is getting serious by the increasing number of articles
mentioning "Obama" or "Bush" in the headlines. Now is the time for the blame
game to begin!

I've said it before, and it bears repeating: this is a systemic problem. The
system is set up so that it is so secret there can be no public oversight.
There's no feedback loop. The most you could ask from any president is simply
to air it all out in the open and let the public begin a debate. This is
something that no president has done so far. I wouldn't hold my breath waiting
on it to happen, either.

I'm willing to cut Bush a _tiny_ amount of slack for historical reasons. The
US has traditionally temporarily restricted liberties and trampled on parts of
the constitution when it was under attack. Therefore, looking at 9-11, there's
no reason not to expect the pattern to continue.

The problem here is the word "temporary". 9-11 wasn't just a terrible tragedy
that opened a huge war effort that lasted several years and ended. It was used
to create _permanent_ changes in the way the entire system worked. In that
area -- making it all permanent -- I completely blame Bush and the Congress,
neither of which could have fucked things up this much by themselves.

Obama walked into a mess, but he seemed to know he was walking into a mess.
Why he didn't actually fix anything is anybody's guess. I'm not buying that he
couldn't do it. I just don't know.

I don't want to put the paranoid hat on, but I would note that members of
various military agencies have been known to thoroughly "research"
Congresspeople and executive branch staff in order to know how to pitch them
on various issues. I firmly believe the NSA did not do this, but with all of
the revelations lately, it's not beyond the realm of possibility. Can you
imagine how persuasive and argument you could make to a Senator, or even a
President, if you had all their emails, chat logs, cell phone records, and so
forth? Like I said, I don't think it happened. But it _could_ happen, and
that's freaking scary.

