Bush's Wiretapping Defence

Here is a prediction of one of the legal contortions Alberto "Torquemada" Gonzalez will use to justify Bush wiretapping US citizens. The idea came to me, ironically, from Senator Robert Byrd's No President is Above the Law speech:

The President claims that these powers are within his role as Commander in Chief. Make no mistake, the powers granted to the Commander in Chief are specifically those as head of the Armed Forces. These warrantless searches are conducted not against a foreign power, but against unsuspecting and unknowing American citizens. They are conducted against individuals living on American soil, not in Iraq or Afghanistan. There is nothing within the powers granted in the Commander in Chief clause that grants the President the ability to conduct clandestine surveillance of American civilians.

I doubt any Senator is as thoroughly versed in the Constitution as Byrd: he carries a copy of it around with him at all times and studies it frequently. But I believe he has not given consideration to just how evil and slimy these people are.

The problem with Byrd's analysis is where he says "foreign power." Condi Lies 'R' Us has already dropped a big hint about the administration's view on this when she said she did not believe the pResident was required to get Congressional approval to attack Iran or Syria (or whichever oil-rich country they want to go after next). Congress did not give approval for a war in Afghanistan or a war in Iraq but for a War on Terror. In the Bushevik view, that means anyone and anywhere.

Oh dear, al-Qaeda is operating in Syria? Because we have Congressional approval for a War on Terror, that means we can whack Syria without any further approval from Congress.

What's that you say? al-Qaeda is operating in Iran? The War on Terror means we can invade Iran and we don't have to ask Congress first.

The administration is no longer claiming to be fighting foreign powers as such (although, of course, they are since they want to invade those countries for oil) but going after individual terrorists wherever they may be and whatever their nationality.

And that is the exploitable loophole. Once you conceed (as Congress did in its resolution) that this is a War on Terror, rather than a war against a specific country, the pResident's commander-in-chief powers apply to anyone, anywhere. Including US citizens in the US (ask Jose Padilla if you don't believe me). In fact the Padilla case, unless SCOTUS upholds the recent 4th Circuit Court's we are not amused attitude, it will serve as a precedent that US citizens on US soil can be treated as legitimate military enemies.

And there you have it. If it's legal to treat a US citizen arrested on US soil as a military enemy and subject to commander-in-chief authority rather than presidential authority then Bush can wiretap US citizens. In the War on Terror, anyone, anywhere may be an enemy including US citizens on US soil.

Obviously, such a position forces various clauses of the Constitution into conflict. There are the clauses guaranteeing US citizens various rights (notably the 1st and 4th amendments) and the clauses about commander-in-chief authority. When a US citizen upon US soil can legitimately declared a military enemy, which clauses govern?

If it is contested, this is something that will have to be decided by the Supremes, and there's no guaranteeing which way they'll decide (particularly if Scalito is serving). If the Supremes vote for tyranny then there is still one hope left: impeachment. But don't hold your breath.