I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, November 18, 2006

Dick Cheney at the Federalist Society last night -- translated

(updated below)

Vice President Dick Cheney and the Federalist Society got together last night and shared some hearty laughs about the administration's ongoing eavesdropping on American citizens, inside the U.S., in violation of the law, along with the hilarious notion that these things called "laws" or "courts" could somehow restrain the Leader:

In the days following 9/11, the President authorized the National Security Agency to intercept a certain category of terrorist-linked international communications. On occasion you will hear this called a domestic surveillance program. That is more than a misnomer; it's a flat-out falsehood. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda and to terrorist networks.

We are spying on American citizens inside the U.S. as they talk on the telephones in their homes. And we are doing so in secret, with no warrants or oversight of any kind. But it is a "flat-out falsehood" to say that this is "domestic surveillance." Everyone knows that when a Government spies on the conversations of its own citizens while they are inside the country, that has nothing to do with "domestic surveillance."

In addition, the entire program undergoes a thorough review approximately every 45 days. After each review, the President personally has to determine whether to reauthorize the program. And he has done so more than 30 times since September 11th - and he has indicated his intent to continue doing so as long as our nation faces a threat from al Qaeda and related organizations.

There is no need to worry about our illegal, secret spying on you, because the Leader Himself -- "personally" -- reviews this and approves of it. And even though there is a law in place enacted almost 30 years ago by your democratically-elected representatives making it a felony for us to do this, and even though the only court to rule on this issue has ruled that we are violating not only your constitutional rights, but also a federal criminal statute, we are still doing it, and we will continue to. Because we want to and because we can.

Yet none of these considerations was persuasive to a federal district court in the state of Michigan, which ruled three months ago that the NSA program violated the Constitution and the Foreign Intelligence Surveillance Act. The court found, among other factors, that warrantless surveillance of terrorist-related communications would cause irreparable injury to the American Civil Liberties Union and other plaintiffs. (Laughter.)

Some loser activist federal judge somewhere ruled that we are breaking the law and violating the constitutional rights of Americans by spying on them with no judicial oversight (laughter). Isn't that hilarious! This woman, sitting in her robe, actually thinks she has some sort of authority or something over the Leader. God, that is so funny (laughter). And isn't it also hilarious how the judge unwittingly agreed with us that the ACLU are terrorists? After all, why else would the judge say that the ACLU was harmed by our surveillance of terrorists (laughter)? Get it? (laughter).

Every appellate court to rule on this issue has recognized inherent presidential authority to conduct warrantless surveillance to counter threats directed at the country from abroad. The district court's opinion — which The New York Times called "careful and thoroughly grounded" — (Laughter.) — did not distinguish any of those prior federal decisions. Nor, indeed, did the district court even cite those decisions.

Not only did the judge not mention those cases, but neither did we, the Government, because instead, we, told the judge (.pdf) that she should just mind her own business and that she had no right to butt into what we doing, so we never even bothered to justify to her what we were doing by mentioning those cases (which, in any event, have nothing to do with the NSA scandal since no court anywhere -- including in those cases -- has ever held that the President has the right to engage in warrantless eavesdropping when there is a duly enacted law such as FISA which criminally prohibits that very eavesdropping).

But since we're on the subject of separation of powers, one conclusion is hard to escape: the Michigan district court's decision is an indefensible act of judicial overreaching. (Applause.)

As law students and lawyers, of course, all of you understand that a given point of view isn't necessarily correct, or even persuasive, merely because it's been handed down by a judge. There's a reason these things are called opinions. (Laughter.) But the Michigan decision is something altogether different, and it's very troubling: It is a court order tying the hands of the President of the United States in the conduct of a war. And this is a matter entirely outside the competence of the judiciary. (Applause.).

Hey, Federalist Society patriots -- check out these premises that we have:

(1) Neither Congress nor the Courts can "tie the hands of the President" during war.

(2) We are at war forever.

(3) The war is everywhere, including inside the U.S.

(4) Ergo, by definition, no more courts, no more laws, to restrain Our Leader (raucous laughter; wild applause).

It means -- by definition -- that the Leader exists outside of and above the law, no matter what some liberal judge, the ACLU, The New York Times or all the other terrorist-lovers might say (laughter). What a court says is merely an "opinion" which we are free to ignore like we do everyone else's opinions (and that goes double for the the aspect of what the court says that is called an "Order").

We are at war, and we will be forever, and the war is Everywhere, even in our Homeland, and as a result, unlimited power is vested in our Leader, who will use it for your own Good, to protect you, because the Leader is Good and he loves you (applause, saluting, embracing, dancing).

Federalist Society meeting ends.

It is worth reminding ourselves -- as the Vice President just made quite clear again-- that the pathological individuals who occupy the White House do not recognize the power of the law or the power of the courts to limit what they can do. Therefore, the fact that Democrats now control the Congress will be of little concern to them, because the most the Democrats can do is enact little laws or issue cute, little Subpoenas --- but, as the Vice President just said, they think that nothing can "tie the hands of the President of the United States in the conduct of a war." And he means that.

I hope Democrats in Congress recognize that and are prepared to do something about it. This constitutional crisis will exist until it's confronted.

UPDATE: Anonymous Liberal, guest-posting over at The Carpetbagger Report, documents just how frivolous are the legal assertions on which Cheney depends to justify the administration's ongoing violations of the law.

And courtesy of selise, here is the mp3 audio recording of Cheney's speech at the authortarian pageant held last night by the Federalist Society.

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