`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
Somehow, I think Humpty Dumpty would have felt right at home in the Bush Administration:
QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --
GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.
QUESTION: But the --
GEN. HAYDEN: That's what it says.
QUESTION: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable --
GEN. HAYDEN: No. The amendment says --
QUESTION: The court standard, the legal standard --
GEN. HAYDEN: -- unreasonable search and seizure...
GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.
In case you're a little fuzzy on the text of the Amendment at stake here, it reads, in its entirety,
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.
And there is this:
President Bush on Monday defended a program in which he authorized the National Security Agency to conduct real-time surveillance on persons in the U.S. with “clear links to al-Qaeda” and other terrorist groups, saying that he had the authority under law to authorize the program.
“Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it. And after September the 11th, the United States Congress also granted me additional authority to use military force against al Qaeda,” Bush said at his year-end press conference Monday morning.
“Do I have the legal authority to do this? And the answer is, absolutely,” he said.
On Friday the New York Times revealed the existence of the NSA “special collection program” in which the NSA collects international communications of people in the U.S. with ties to terrorist groups, according to the Times. After initially refusing to confirm it, Bush confirmed the program’s existence Saturday and gave additional information on how the program works.
“Where does he find in the Constitution the authority to tap the wires and the phones of American citizens without any court oversight?” said Sen. Carl Levin (D-Mich.).
....
Bush showed a great deal of emotion at the news conference, alternately appearing angered and appearing to plead with those watching to see things his way.
Bush emphatically denied he was trying to usurp power. “To say ‘unchecked power’ basically is ascribing some kind of dictatorial position to the President, which I strongly reject,” he said.
(The full text of Article II is here.)
While nothing in the Constitution is easy -- it is like the Bible, the devil is in the details of how you construe the document -- to say that Article II allows a president to ignore the Fourth Amendment because he feels it is expedient to do so is, even given an expansive reading of the document and the way it has been interpreted by the courts, nonsensical.
One thing Article II does require is that the president take an oath "to preserve, protect and defend the Constitution of the United States." But of course, you claim to be doing that.
Quite a nice rabbit-hole you've got us into there, Mr. President.
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