Sunday, February 12, 2006

Republicans keeping us safer?

David Broder is a very savvy reporter for the Washington Post and a frequent guest on the PBS weekly panel discussion, Washington Week. When it was noted that the President seemed to be making ground with the public on the domestic spying, Broder had an interesting insight.

He agreed that the issue would benefit Republicans as long as they could spin it into the Democrats not being willing or able to defend America. His insight was that this will not continue if and when a court declares that it is illegal. For what it is worth, I agree.

As I have said repeatedly, this is not about keeping America safe from terrorists. This is about whether or not the President should be bound by the rule of law. When the issue is framed that way, 49.8% favor Congress holding him accountable through impeachment and removal from office if “it is determined that President Bush broke the law” vs. 38.7 who oppose.

Though they will not use the “I” word, it is clear that the Senators on the Judiciary Committee have very serious doubts about the program’s legality. Republican Senator Lindsey Graham was quite forceful in his criticism, and Arlen Specter was, too. Mike DeWine is joining the other Republicans and suggesting that Bush get his act together and seek amendments to the FISA law. For its part, the Administration is adamantly insisting that what it did is all covered by the FISA law, and therefore it opposes any ammendments. Surprisingly, ultra conservative Sam Brownbeck of Kansas, who is running for President, is not going along with the President on this one.

Add in the eight Democrats, and you have the Senate Judiciary Committee split 12-6 against the legality of the Domestic Spying Program. Chairman Arlen Specter is urging the President to submit the case to the FISA court.

So the Senate Judiciary Committee is leaning to the view that the warrantless domestic spying is illegal. If Broder is right, we still lack a Court to declare it so.

Here’s the breaking news according to today’s Wall Street Journal: The FISA court has already revealed its view that the program is illegal. Here’s how it goes.

As you know, illegally seized evidence is not admissible in court; it’s called the exclusionary rule. A corollary is the “fruit of the poisonous tree doctrine.” Basically, it says that if illegally seized evidence is used to get other evidence, that other evidence is also inadmissible.

According to the Washington Post:

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush's program.

Essentially, these two judges, the experts in the FISA law, and the only judges to have considered the question, have concluded that any use of material from warrantless wiretaps would be inadmissible, and any evidence it led to would be fruit of the poisonous tree.

As Senate Judiciary Committee member Ted Kennedy pointed out, the evidence gathered against an actual terrorist will be thrown out of court if it was obtained illegally. Thus, King George W may have handed the terrorists a “get out of jail fee” card.

Republican incompetence has not made us safer. As they say in New Orleans, “au contraire, mon ami.”

You're doing a heckuva job, Alberto. Do not pass go. Do not collect $200.

“… and tell ’em Big Mitch sent ya!”

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