Right Side of the Rainbow

Over at The Volokh Conspriacy, there’s a passionate exchange in the comments over the legality and constitutionality of the president’s decision to authorize warrantless surveillance of electronic communications. I love this observation from a lawyer in Houston:

I don’t really have an opinion on whether the intelligence gathering that Bush authorized is permitted under the Constitution, but any Constitution flexible enough to have a right to abortion contained therein without express or implied wording is going to accomodate a lot of things.

Indeed. If the Constitution is a living, evolving document, perhaps its also lives and evolves under the ministrations of the executive and not just the judiciary. Why not?

This one left me scatching my head:

It’s going to be interesting seeing John Roberts presiding over the trial of his sponsor’s impeachment.

You know what would be even more interesting? To know where this dude gets the notion that a Republican-controlled House of Representatives is going to impeach this president over a hotly contested point of law and policy.

Even if we grant, arguendo, that the president’s authorization of warrantless domestic eavesdropping exceeds what the Constitution allows, so what? If the Government has used the information to bring criminal charges against a U.S. citizen, the defendant can challenge the validity of the search and, under the exclusionary rule, have the fruits of it suppressed. That’s the remedy. If, on the hand, the Government has used the information only to disrupt terrorist plots, isn’t that what the Government is supposed to do?

This is a fact-intensive matter. And there’s quite a bit that we — meaning the American public — just don’t know.

Relatedly, this from law professor Orin Kerr:

Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don’t know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion. (Link) [Emphasis added.]

Officers of the Government are forever doing things only to be told later by (often divided) courts that they weren’t supposed to be doing them, either because they violated the Constitution or statutory law; this is true even when the extant law was clearly in the Government’s favor. Here are some examples.

A president’s policy decisions may be unlawful or even unconstitutional and still not be criminal. Even if Mr. Bush’s policy decisions relating to domestic surveillance exceed what the Constitution or federal law allows, he has hardly done anything for which Republicans would impeach him. Anybody who thinks otherwise is a political bed wetter.

Fugetaboutit. It ain’t happening.