Bush Spy Order and Bravo to Judge Robertson for Fulfilling his Oath

I haven't been blogging because I'm trying to get a paper (ironically on blogging and the First Amendment) finished by the time school resumes. But I've been procrastinating and instead glued to the news reports on the Bush spy Order. It really is as bad as we "conspiracy theorists" thought. And finally, "mainstream" figures are stepping up. Tim Russert did the best interview with Secretary Rice this weekend I've seen him do in a long time. Now, the Washington Post reports a federal judge that sits on the FISA Court has resigned in protest.

I've never bought the shift in balance in liberties vs. security argument. I think it's a slippery slope (apologize to those who hate this argument but here it is appropriate) that can always be invoked by those in power who claim “we’d agree with their balance if we only knew what they knew.”

If the president wants to perform mass surveillance of hundreds of Americans without probable cause he needs to go to Congress and get a new law passed. Of course FISA is not set up for approving this, so it takes time to go through that official procedure. As I've said before in other fora, friction in the system is frequently a source of privacy protection beyond law and technology.

I also am not a fan of the argument that the President should go to the public to see whether they'd approve of these secret wiretaps. The Constitution is a purposely anti- majoritarian document meant to check popular programs that subjugate non-majorities (such as people who make international phone calls to Pakistan or Iraq).

This is unconstitutional pure and simple. The Constitution does not give the President this power-- the Fourth Amendment specifically denies it. The Congress has not given the President this power-- because the Congress cannot give power that the Constitution denies.

The real problem here is that it will be impossible to use the Courts to get rid of this secret order-- which the president admits he continues to authorize-- because there will be no party with standing to challenge it. So it is up to mainstream public figures to step up and say this is wrong.

So thank you, thank you, thank you U.S. District Judge James Robertson for stepping up to the plate. IMHO, by resigning, you've performed your most important act to uphold the Constitutional oath you took.