American Big Man IX

Previous "Big Man" posts:

American Big Man
American Big Man II
American Big Man III
Big Man Questions
American Big Man Continues
American Big Man IV
American Big Man V
American Big Man VI: One Party State
American Big Man VII: Big Man Grows a whole size
American Big Man VIII: The Higher The Monkey Climb

Today the Justice Department, representing the NSA, has asked that the NSA wiretap case be thrown out because:

"the evidence we need to demonstrate to you that it lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The [so called]Justice Department is basically saying that national security "concerns" puts the president and the NSA and whomever else he deems worthy, outside the purview of the legal system or other branches of government. Never mind that the FISA court itself was created in order to maintain state security needs while addressing the constitutional requirements regarding search and seizure. As we have posted before (see the extensive postings listed above). It is already known and agreed upon that the president has violated the FISA statute.

The Bush administration has acknowledged that it has not complied with the law but has said that a Congressional authorization in 2001 to use military force against Al Qaeda and the president's inherent constitutional powers allowed him to violate it.

We have demonstrated how the language of the AUMF does not give the president any powers above that granted by either the constitution or the War Powers Resolution. I bring up the War Powers resolution because it was used as an argument by the Justice Department in their brief discussed at length in American Big Man and American Big man IV.

Even more odius was this argument:
Calling the plaintiffs' position extreme, Mr. Coppolino said the 1978 law cannot constitutionally constrain the president when the nation's safety is at risk.

"The president's constitutional power doesn't simply disappear when Congress enacts a statute," Mr. Coppolino said. "Surveillance of an enemy is indeed a necessary incident of war."

The 1978 law does not constitutionally restrain the president the 1978 law prevents the president from using extra-constitutional actions under the cover of "national security".

The Justice department has also revealed it's back up plan in the form of the following argument:

Mr. Coppolino also argued that the plaintiffs were not entitled to sue in the first place because they cannot show they have been injured. "You don't get standing," he said, "simply because you say the president has a program and I think it might cover me."



I believe that this argument is just as specious. Let us take the example of Martha Stewarts supposed insider trading "crime". Who exactly was injured by Martha Stewart's actions? Were there any lawsuits by shareholders that precipitated the investigation into her trade? No, it was in the process of a norma investigation into the company after the fall of it's stock price after the annoncement of the denial of FDA approval that the "scam" was discovered. If the SEC could go after Martha Stewart without an individual person showing "injury" then why can't the President of the United States be held accountable for a crime he admits to committing?

The answer to the question is that there is a collective injury when a person acts on insider trading. Shareholders, unable to act in an informed manner via a transparent marketplace where everyone has access to the same information (should the seek it), lose money and the market system is threatened. Equally the president by violating the FISA statute and by extension the, 4th Amendment threatens the very basis of the United States government and therefore he injures the entire citizenry by his actions. What the Justice Department hopes to do is to use the terrorism boogyman in order to scare this judge and the congress from doing their constitutional duty and impeach the president for the high crime of treason and to throw his behind in jail.

President Bush and his republican cohorts like to go on and on about how they despise "activist" judges who fail to follow the law. I hope that the judge in this case is just the kind of judge that Bush likes. Sometimes you get what you ask for.

To be continued.