And how long have some of us been calling for the Decider's impeachment?

...as long as the NSA had a "reasonable basis to conclude that one party to the communication is a member of al Qaeda..."

And that party would be the Democratic Party?

Kevin's reaction is too subtle and understated for my taste.

Some times require firebreathing outrage.

Torture, domestic spying, illegal war.

Hey, you're forgetting that little habeas corpus item.

God, these guys make me sick.

Isn't Yoo's legal justification just that the president's C-i-C duties cannot in any way be constrained by Congress, and therefore FISA is unconstitutional anytime the president puts on his codpiece?

If you buy that, I've got a steel mill in Ohio you can seize.

you mean spying on Kerry's campaign was illegal?

therefore FISA is unconstitutional anytime the president puts on his codpiece?

Yes, my droog.

Disputo >"Yes, my droog."

A little bit of the ultra violence then ?

No matter how bad it is, there will always be the day it ends (which could be tomorrow)

"You see what power is - holding someone else's fear in your hand and showing it to them!" - Amy Tan

John Yoo - Back on the faculty of The Boalt Hall School of Law at Berkeley. That memo worked out fine for him.

They weren't "weak-kneed liberals"???

You couldn't find a better way to make the point that it was authoritarian Republicans objecting instead of civil liberties conscious liberals?

"Hard-nosed conservatives"?

Give me a break.

Yoo's legal reasoning would have earned a second year law student a D. It's amazing that such a low quality thinker could reach such lofty posts.

Oh for the days when "classified" meant secret not illegal.

As a thought experiment: supposing everything about this was the same, except that it was a Democratic administration and a Republican Congress.

Is there anybody who does NOT think the Republican Congress and its allies in the media would make the standard accusation constantly that the ONLY purpose of the classified program was to spy on the President's domestic opponents -- and cite the failure to disprove the charge as proof?

That the President's first choice as Attorney General thought it was unlawful is surely evidence that, well, it WAS unlawful.

So -- what was it?

Amazing that Shrub didn't slip and say that it was Geheim, Schweinhund. But, then he is always soooo polite to the fawning press.

A horrific number of low quality thinkers have been handed lofty positions in this administration. Perhaps thinking is not as vital a qualitification in the GOP as loyality, that special unquestioning, do-what-it-takes, blind, follow-all-orders, even if your career is killed kind of loyalty.

Liberals who question everything and want to look under every rock to see what is there are seldom harnessed by such loyalty. I hope Democrats loyalty is more the kind that is earned and kept by a policians actions, rather than dictated by the party typed on one's voter registration card.

still allowed electronic surveillance of communications as long as the NSA had a "reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

Considering that the Bush regime has on multiple occassions accused the Democratic Party of working in support of al Qaeda, presumably they were using this authority to spy on Democrats, including Democratic officeholders and Democrats such as Kerry, Dean, and others running for president at the time.

Marty Lederman points out today that this team — John Ashcroft, Jack Goldsmith, and James Comey — was no bunch of weak-kneed liberals.

Ah, Kevin.

Still buying into Republican framing, aren't you. Can you give us an example of some of these mythical "weak-kneed liberals"?

The scariest thing is that between a quarter and a third of voters still support these bozos.

"[An 'incapacitated'] John Ashcroft was so profoundly committed to its repudiation." Imagine that. And Ashcroft's wife was opposed to the dubious Yoo hack hob too.

The scariest thing is that between a quarter and a third of voters still support these bozos.

It has been sobering, hasn't it, to realize that fully a third of our countrymen are authoritarian fascists who, out of either conviction, weakness or fear, would gladly trash the Constitution and turn our country into a dictatorship?

It's like they were all asleep during 8th grade civics class....

And Ashcroft's wife was opposed to the dubious Yoo hack hob too.

And so was the dead guy that to whom Ashcroft lost that Missouri senate election.

If you have been around Texas money none of this comes as a surprise. Dumb Texas money often has a ring of over-promoted loyalists and toadies with marginal qualifications. It is their loyalty that makes them qualified. The quasi-aristocratic princelings of the Southern Establishment aren’t used to having their people held accountable. When they are held accountable it is as if you are attacking their royal house not holding them to common values of professional civic conduct.

Although John Yoo is one of Dick Cheney’s henchmen, and not a Bushie, he shares one common quality- he is an ignorant man unable to appreciate the nature of American tradition. He is part of a tiny group of radical conservatives in the legal profession within the United States who have fairly fascist views of the state and its power (if we take the theories of the jurist Carl Schmitt as a point of reference). They are, at their base, enemies of the American Republic.

"But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face …for ever."

George Orwell, 1984

Isn't Yoo's legal justification just that the president's C-i-C duties cannot in any way be constrained by Congress, and therefore FISA is unconstitutional anytime the president puts on his codpiece?

I don't know if it was his legal justification in this case, but certainly it wouldn't be surprising from John "The power to set aside the law is inherent in the President" Yoo.

"...was no bunch of weak-kneed liberals..."

Why is it that *every* Republican mistake has to somehow be reflected on democrats????

C'mon Kevin, jeeez! Do you really think that someone like Clinton, Gore, Obama, Hillary, Edwards, Kerry, Kennedy, or Barbara Lee for that matter, any of these people wouldn't have resigned under the circumstances? I guess they would have done even better: Talked to the press!!!!

Make no mistake, this is a constitutional crisis. The old mechanism- the power of the purse and the judgment of powerful nobles- for keeping the executive's power to wage war and suspend rights in a time of crisis has broken down. It has broken down because the modern state has standing armies and ready funds to initiate any war, large or small, often under a cloud of secrecy. The American executive has had the power for some time to do this and it has been long abused. Also, paid-for politicians have become fearful of questioning anything cloaked in nationalism.

The end result has been that ambitious men with enough money and bullying can make whatever war they like and, it seems, suspend any right they see fit. The only thing they need to do is get into the White House and use the art of public relations to construct an emergency.

Jack Balkin's essay makes sense, as do all the posts here. My problem with all of them is that they ignore the context: 9/11, the USS Cole, the 1993 World Trade Center, Bali, Madrid, the London Underground, etc.

What should Bush have done instead of using this spy program? FISA wouldn't have been practical. Bush could have asked Congress for a new law approving what he wanted to do. In the aftermath of 9/11, they'd migh have done what he wanted. But, then the program would have been publicized, so terrorists would know how to avoid being spied on.

Bush felt that the program had to be kept secret in order to be most effective. So, he informed a small number of leading Congressional Democrats and Republicans. That was a practical way to maintain oversight while keeping the program secret.

I would guess that a majority of Americans agree with Bush's decision to use a sensible spy program that was highly effective, even though it was of dubious Constitutionality.

The administration is not able to convince me that they understand what "a government by the people, for the people" means. Rather it seems we now have a ...government for the rich and nothing but the rich so help us god.

Can there be any doubt that GWB and Co. have deceptivialized the meaning of accountability?

"Stop waving the Constitution in my face, it's only a goddamn piece of paper." (not quite a direct quote) -The President of the United States.

These are dangerous times folks. Yes, we have external enemies, but the dolts in power may be causing lasting harm to our (once) great democracy.

I was going to write and ask why Ashcroft hasn't been subpoenaed to testify about this, but then ex-l's comment stopped me cold.

It's like you can't be 'a little bit pregnant,' ex-l. If something is unconstitutional, you cannot do it, nohow, nowhere, nowhen.

Have you seen "A Man for All Seasons?" There's a scene where Sir Thomas More is talking with his son in law about suspending the laws to bring the devil himself to justice and why it is not advisable to do it. It is so damn applicable here. I should not give you the benefit of the doubt on this, but I'm feeling charitable as it's Friday:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

ex-lib. Once again, you guess wrong. Your conflation of the words "sensible" and "spy program" show that you haven't been paying attention to DoJ developments, nor to the mood of the American public.

When are you going to realize that these jokers don't care about you or anyone else? Come over to the light side, whydontcha?

[if you advocate suspending the Constitution, you get deleted]

What disturbs me (besides ex-libs obvious disdain for our Constitution like all of his fellow travelers) is that John Ashcroft, as Bush's Attorney General, apparently signed off on this highly illegal, un-Constitutional surveillance program between it's inception and early 2004...without apparently knowing the full details of the spying program on which he was being asked, each time, to judge it's legality.

From what Mr. Comey said, once he entered the DOJ picture in late 2003, and began demanding to know the details of this program, before even considering recertifying it, apparently no one at the DOJ, including John Ashcroft, had previously done this, but had just "rubber-stamped" the recertification, without knowing much, if anything, about what was being done, in circumvention of our Constitution and the FISA court.

Of course, I may be wrong, but this is the impression I got.

And a note to ex-lib and his fellow travelers: the FISA court has a provision that surveillance can begin and warrants postponed in case of an emergency, but the executive branch still has to justify the surveillance before the FISA court, either within three days or two weeks, depending on the size of the emergency.

The Bush crime family, though, wanted to bypass the FISA court entirely, even though the current members of the FISA court are all Republican appointees. In fact, because of the subterfuge of the Bush crime family, one of these Republican-appointed FISA court judges resigned several years ago...reportedly in protest over the highly illegal, anti-Constitution actions of the most corrupt administration in American history.

Hmmmm, come to think of it, this incident sounds exactly like the U.S. Attorney scandal.

Just as suspicion must fall on all the U.S. Attorneys who passed the Bush crime family "smell test" and still retain their jobs, the FISA court judges who didn't resign in protest, or weren't fired, or reassigned without anyone knowing, must also be passing the Bush crime family "smell test," which makes their continued presence on the FISA court suspect.

Ashcroft became AG in 2001. So it must have been Comey, Goldsmith et al who had the objections in 2004, although they may have convinced Ashcroft as well.

….I would guess that a majority of Americans agree with Bush's decision to use a sensible spy program… ex-lax at 5:14 PM

According to the latest NEWSWEEK poll, 53 percent of Americans think the NSA’s surveillance program “goes too far in invading people’s privacy,” while 41 percent see it as a necessary tool to combat terrorism.

Of course, since we haven't as yet been able to ascertain exactly what Bush is up to, anyone who has paid attention to his activities and still trusts his regime is shows a profound ability to misplace trust.
Nevertheless, as Glenn Greenwald points out, Bush was deliberately using illegal means when he could easily have used legal ones, thereby showing his contempt for the laws of the land.

…As former OLC official Marty Lederman noted last night, John Ashcroft and James Comey are both Republican ideologues who proved that they were willing to endorse and defend even the most radical (and illegal) behavior (including the lawless detention of Jose Padilla and the administration's "refashioned" -- though still illegal -- warrantless eavesdropping program). If they were insisting that the conduct of the Bush administration was not only illegal, but so illegal that they were ready to resign en masse over it, then, as Lederman asks: "can you even imagine how bad it must have been?"
There is just no excuse left for allowing the administration to keep this behavior concealed from the country. What James Comey described on Tuesday is the behavior of a government completely unmoored from any constraints of law, operating only by the rules of thuggery, intimidation, and pure lawlessness. Even for the most establishment-defending organs, there are now indisputably clear facts suggesting that the scope and breadth and brazenness of the lawbreaking here is far beyond even what was known previously, and it occurred at the highest levels of the Bush administration….

...My problem with all of them is that they ignore the context: 9/11, the USS Cole, the 1993 World Trade Center, Bali, Madrid, the London Underground, etc.

You want to talk about "context." That's cute.

Bitch, the Constitution is -- by definition -- the fundamental context. The Constitution is always and everywhere the context, the beginning and end. And it doesn't contain a self-destruct clause for when some assholes bomb a disco.

The Constitution was written to prevent far worse disasters than 9/11 from happening. How can you not know this? How can you not realize that without the Constitution, events the moral equivalents of 9/11 would become commonplaces?

You think 9/11 was the abyss. You're a fool. The abyss opens when you suspend the Constitution. And to empower the government to act outside the constitution is to suspend the Consitution.