Yes, it is a scandal. In fact, ordering surveillance on American citizens and legal residents is probably well within the definition of High Crimes and Misdemeanors, were anyone with the authority to determine such matters paying attention.
I want to call attention to some blogosphere reactions that I think really “get” it.
boz understands that extraordinary threats sometimes call for extraordinary actions, but nonetheless, that does not excuse the executive operating without oversight:
In my eyes, the problem is not that they don’t get the warrant first (although, that is of some concern). The problem is that they never get a warrant and the individual cases aren’t reviewed by the judicial system at any point, even after the process.
Where the Bush administration failed is that they believed that in fighting terrorism, they were beyond oversight. In fact, it is in these extreme circumstances that oversight is most necessary.
I highly recommend the entire post.
Glenn Greenwald takes defenders of the Bush administration to task for misquoting the Foreign Intelligence Surveillance Act (FISA), noting that these defenders (several of whom are quoted in the post)
are simply lying — and that term is used advisedly — about what FISA says by misquoting the statute in order to make it appear that the Administrationâ€™s clearly illegal behavior conforms to the statute.
[h/t on this last one to Running Scared, whose post on this matter is also well worth a read.]
Addressing the legal and policy questions, Scott Lemieux states:
…the legal question here is unambiguous. Several conservative hacks have tried to use a distortion of FISA to argue otherwise, but the statute clearly forbids what Bush has openly admitted to having done. And then, of course, there’s the Fourth Amendment, which is also clearly violated by these warrantless seraches.
A bit farther on in an excellent and detailed post, Scott goes into the national-security policy side of the story, arguing that there is:
…no remotely credible national security justification for these plainly illegal searches. Is there reason to believe that the communications of terrorists couldn’t be effectively monitored via the existing legal framework? Of course not.
The reason is that, as the original NYT article noted, the burden of proof the government must meet to obtain a warrant under FISA is quite low; moreover, as Josh Marshall notes, the FISA Court hardly ever turns down such requests from the government.
Professor Bainbridge adds:
It’s disingenuous to be shocked about such things [as leaks to the New York Times]. So let’s think about the merits. Coercive interrogations. A gulag of secret prisons. And now warrantless surveillance. We’re supposed to be better than this.
He then follows with some very appropriate quotes, including this one from Madison:
I believe that there are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.
It is very timely that this was also the weekend that Colin Powell finally confirms, in a BBC-TV interview that is excerpted at the BBC News website, that:
Often maybe Mr Rumsfeld and Vice-President Cheney would take decisions into the president that the rest of us weren’t aware of. That did happen, on a number of occasions.
This is Powell’s less direct way of referring to what his former chief of staff already had called the cabal–that is, the cabal that hijacked our national security policy after 9/11.
Really, none of this is new. After all,
John Dean already warned us eight months before what Bush called his accountability moment:
To say that the [Bush-Cheney] secret presidency is undemocratic is an understatement. I’m anything but skittish about government, but I must say this administration is truly scary and, given the times we live in, frighteningly dangerous.
What is new is that this time Bush has actually admitted doing something that is plainy illegal and unconstitutional, and an infringement on our liberties.
Professor Bainbridge says the cumulative breaches of liberty in the name of security are enough to make him think about a Christmas donation to the ACLU.
For me, it is making me think seriously about a contribution to some organization that, if pushed, might be capable of bringing about a real accountability moment. (And anyone who knows my feelings about the two-party system knows how much it would take to drive me to do something like that; I’d be much more comfortable with other allies in accountability-seeking, but some things are of transcendental importance.)