the blog of DC Drinking Liberally

December 27, 2005

Spying Spin


The Shrub is fighting for the political life of the GOP, the Libertarian wing of the party now up in arms over the revelations regarding the Warrantless wiretapping (to say nothing about how most Liberals feel). I believe he is mounting three defenses, all three based on a series of “of course” conclusions that when looked at from beginning to end, are pretty damn ridiculous. What I like to characterize as “weasel words.” It’s interesting when people who claim to believe in strict construction of the Constitution interperet it so freely - and even more interesting when they interpret the laws with an even more cavalier disregard for consequences.

[Crossposted at]

The first is in the idea that “using force” necessarily includes “gathering intelligence.” Now you can spin this all you want, but let’s set aside the bullshit and make things simple. Congressional authorization, more than appointments, more than ratifying treaties, more than passing laws, means one thing: they handle the money. From Article I of the Constitution:

Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To say nothing of (in the same section):

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Stay with me, this is important. In Section Nine we have this little gem:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

This is the power of the purse as it has been used since the House of Commons got the Crown by the Royal Jewels, and the Constitutional perogative to declare war was built with the hard-earned European experience that kings on their own tended to declare war a lot more often than groups of people who had to fight it out where they could be seen. The power of legislation is secondary to the power of the purse as far as its importance to the framers; they were great believers that witholding hard coin was more effective than any harsh language or legislative acts you could bring to a debate. In short: Dems dat got de gold, makes de rules. What’s the limit on Congress? They have no power to command or compel the military, save with the purse, and the purse can only go so far. Binding those two is the Judiciary, which has neither purse nor physical power, but is the agreed-upon referee. Starting to see a theme here?

Looking at it that way, then the congressional authorization of force is just that - saying “we’ll pay for the bullets, the oil, and the repairs. Do your stuff, we’ll work out the details later.” It doesn’t have a damn thing to do with gathering intelligence, because that was already being covered in separate legislation. When the President wants to do something, supposedly he asks to do that, in thousands of pages of legalese. Like the Patriot act. It doesn’t make sense for an act authorizing a federal expenditure saying “go kill weeds” would also authorize you to go look for weeds in your backyard, when you’ve already got people back there looking. They’d want you to ask for more money to pay someone to go look. If you do it out of your own initiative, you’re appropriating Congress’ control over the purse strings, which is not a minor thing, since as stated before, it’s there to keep the executive under control.

The second is the “Commander in Chief” argument, which is supposedly supported by the ridiculous contention that in any case where the President is confronted with legislation that may or may not stand athward Constitutional powers the executive might have, that the President should assume Constitutional authority trumps the law. Well, the Constitution says:

Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Nowhere does it say that he is the chief spymaster. It doesn’t even say that he has absolute control over the other members of his cabinet, only that he can require reports from them. Nowhere does it say he has the power to definitively interpret legislation (a judicial function) or re-write it (a legislative one). Nowhere does it say “if your motives are pure you can do what you want, especially if you’re fighting ‘the enemy.’”

The third argument, what I believe to be the lynchpin of GWB’s defense, rests not in words, but in the absence of them. To be specific, in the fact that there is no specific statement in the Constitution that says Warrants are required for a search. Hell, Warrants aren’t even defined in the Constitution - the word occurs exactly once, and that’s in the Fourth Amendment:

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.

That’s not what they’re saying, but I suspect that’s the obscurity they’re relying on - that a Warrant, like Habeas Corpus, is something that can be dispensed with when dealing with American citizens. Funny thing, though… while there is something that says Habeas Corpus can be suspended… there is no such declaration for Warrants. Only that weasel wriggling, that it was not drawn out on a goddamn PowerPoint presentation for us that “against unreasonable searches and seizures” and “Warrants” were mentioned in the same sentence because there is a connection between them.

In short, the Shrub’s argument rests on the proposition that the law means what the President decides to interpret it to mean.

To hell with that.


  1. And no, I haven’t forgotten that these arguments sweep under the rug the fact that this “tool” became a fishing expedition which went many degrees of separation from those people originally listed in the file of addresses found in Pakistan. Let alone that they never talk about the fact that they’re spying on U.S. citizens, too.

    StealthBadger6:28 am, December 28

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