"I Am Not A Crook"

The President kicked off a new Bamboozlepalooza tour in defense of his kingly powers to wiretap with an appearence at Kansas State.

Mr. Bush hotly denied charges that he had done anything illegal by authorizing the warrantless eavesdropping program. "If I wanted to break the law," he told an audience at Kansas State University, "why was I briefing Congress?"

Of course, as I posted earlier, he actually wasn't legally briefing Congress, but the real point is: that's completely the wrong question.

The real question is, "If you didn't want to break the law, why haven't you been going to the FISA court to get warrants, or at the very least working with Congress to amend the FISA law to explicitly allow what you are doing, instead of relying on a dubious interpretation of language that doesn't expressly override black-letter law?"

Meanwhile, in Washington, the NSA's General Hayden was happily failing an examination in Constitutional law, defending his position that they only intercept those they have "a resonable basis to believe" are "linked" to a group "affiliated" with al Qaeda:

General Hayden defended the program's constitutionality. He said the lower, "reasonable belief" standard conformed to the wording of the Fourth Amendment, asserting that it does not mention probable cause, but instead forbids "unreasonable" searches and seizures.

"The constitutional standard is reasonable," he said. "I am convinced that we are lawful, because what it is we're doing is reasonable," he said.

The Fourth Amendment, however, reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

General Hayden apparently doesn't understand that the whole point of warrants is to make sure that someone other than the person seeking the power agrees that it is reasonable.

The Founding Fathers had the odd impression that even people who mean well, in positions of power, could manage to convince themselves that all sorts of odd things were 'reasonable'. So the Founders said the government would have to convince a judge, hoping to guard the citizens against such delusions. And just to make sure, they included that language about "particularly describing" the things to be seized. I have a feeling General Hayden might often forget about that part, too.

Frankly, given the track record of the things this administration has said and done since coming into office, I'm not at all willing to accept them as arbiters of what is reasonable. Sorry, General.

The President also brought out a new talking point involving an interpretation of the Hamdi case, which I heard used in the same way by Attorney General Gonzales on the PBS NewsHour tonight, and which I expect to hear again and again this week. I know W. didn't graduate from Harvard Law, but Mr. Gonzales should know better.

Before any of you spend time listening to the Bamboozlepalooza talking points, you might want to read this article from the New York Review of Books. A group of 14 top legal scholars and former officials examines the arguments being presented by the Justice Department. See what they think of that Hamdi argument.

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department's December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program.[1] Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The article goes on to provide detailed support for that statement. You know that thing about the government convincing someone else that they were reasonable? Maybe they could start with those 14, and then begin the PR campaign with the rest of us.