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The Bush Administration claims they are not breaking the FISA law. Their defense claims three things.
1) Bush claims that FISA is not the exclusive law on wiretapping, citing the phrase "except as authorized by statute" in section 1809. 2) Bush claims that the Authorization to Use Military Force against Afghanistan (AUMF) is exactly that statutorial exception. 3) Bush claims that the reason they didn't just use FISA was because its not fast enough.
These things are patently untrue. The AUMF is not an exception to FISA. The AUMF does not include any language regarding wiretapping, nor does it imply the involvement of any military or government forces inside the USA. In fact, Bush asked the Congress to add "and in the United States" to the AUMF, and this request was specifically denied by Congress. That makes it clear that no operations of the AUMF are allowed to occur in the US. Remember, the AUMF was passed to allow the invasion of Afghanistan, and only covered the force allowed to be used in doing that task.
There is also no way a more general statute such as the AUMF can override a more specific statute like FISA, this is settled law by the courts. In addition, all prior declarations of war occurred before FISA even existed, so no other declarations of war can be used as an examples, even though Gonzalez implied they were.
Lastly, it is clear that FISA could have been used. It could have been modified as needed if Bush had just asked for Congress to modify it. It has already been modified many times since the Sept 11 attacks, by exactly such requests from Bush. There is no plausible reason for Bush to think that another such request would have been denied.
The most devastating part of this entire scandal, is that a few, brave, honest Republicans totally agree that Bush has violated the law. This is in addition to every renouned legal scholar in the country, prior administration officials, judges and lawyers around the country. This is a clear sign that this activity is completely illegal.
Hardline Republicans are now trying to cover up Bush's felony. They are trying to get FISA changed to make this illegal wiretapping, legal. This is hardly surprising given the culture of corruption in the Republican party. A party that just elected John Boehner to clean up lobbying even though he has ties to the Jack Abramoff scandal and ties to lobbyists, and put Tom DeLay, who is under criminal indictment, to a submittee overseeing the Justice Department. Tomorrow I expect the Republicans will appoint John Gotti to head up a task force to "clean up" the mafia.
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