On The Razor's Edge

Here we are, on the eve of the Senate vote on Samuel Alito's nomination to the Supreme Court. Literally, as I write this it is after 7:00 pm on January 29th.

One of the directions we could go in is toward a monolithic government of a unitary Presidency and a weakened Legislative and Judicial Branch. It will definitely depend on whether Alito sides consistently with his neocon and ultra-right pals in the Bush II administration. It is the opinion of most that he will do so. If so, God help The Union.

At the same time, we are also on the brink of Senate Judiciary Committee meetings about the NSA wiretapping. Most of the legal opinions out there seem to argue strongly against the legality of these wiretaps and the President's authority to order them. All of them cite the 4th Amendment, which reads,

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.

To you and me, this says clearly that "probable cause" is the standard that must be met. However, NSA Director General Michael Hayden is insistent that the 4th Amendment's standard "unreasonable" - in effect blowing off the entire latter text about the issuance of Warrants.

On the face of it, Hayden seems to be completely in the wrong. But, since any legal proceedings that reach the Supreme Court will arrive there after Alito is ensconced in his SCOTUS seat, it is a very iffy call on what will be decided eventually.

It could go either way.

Also on the near horizon is the Scooter Libby trial over his lying to the FBI and the Special Prosecutor in the Plame case. Libby's lawyers are planning all kinds of legal stratagems to get the prosecution to give up the case. Their first broadside is this (from Newsmax's Scooter Libby's Lawyers: Subpoena Reporters):

Lawyers for a former top aide to Vice President Dick Cheney told a federal judge Friday they want to subpoena journalists and news organizations for documents they may have related to the leak of a CIA operative's name.

In a joint filing with prosecutors, lawyers for I. Lewis "Scooter" Libby, 55, warned U.S. District Judge Reggie B. Walton that a trial likely will be delayed because of their strategy to seek more subpoenas of reporters' notes and other records...

The filing provides the most concrete indication yet that a large part of Libby's trial strategy will be identifying other government officials who knew Plame was a CIA operative and told reporters about it.

Actually, it is not important whether Libby was the FIRST person to out Plame to reporters. The lying by Libby had nothing to do with the moments when his responses to the FBI or to Patrick Fitzgerald were made. At those moments, his statements were either true, uninformed, forgetfulness, or they were lies. It is the position of the Grand Jury, and of Fitz, that they were lies. That is what Libby's lawyers have to argue before a jury.

Further along in the Plame case, Fitz has much more to do and Karl Rove is certainly still at risk. The loss of Rove would be devastating to Bush, as the aftermath of Hurricane Katrina showed: Bush is worthless on his own, without someone to pull his strings. At the time, Rove was said to be in the hospital with a kidney stone problem. It will be impossible for Bush to act at the same level without Rove.

And in regards to the NSA situation, there is much activity on several fronts about the potential for impeachment, based on Bush's blowing off the FISA law. This is a many-pronged web. Bush apparently DID attempt in 1992 to get Congress to sign on to the warrantless wiretaps, but was shot down. This argues that Bush's team knew at the time that they needed to get Congress's go ahead. He also, in 2004, attempted to get support from the Attorney General's office to continue the program (see Newsweeks's Palace Revolt, page 4, Jan 29, 2006)

There was one catch: the secret program had to be reapproved by the attorney general every 45 days. It was [assistant Attorney General named Jack] Goldsmith's job to advise the A.G. on the legality of the program. In March 2004, John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, [James] Comey, Ashcroft's No. 2, was acting as attorney general. The grandson of an Irish cop and a former U.S. attorney from Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his friend—the equally straitlaced and dogged Patrick Fitzgerald—to be the special prosecutor in the Valerie Plame leak-investigation case.) Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey backed them up. The White House was told: no reauthorization.

The angry reaction bubbled up all the way to the Oval Office... A high-level delegation—White House Counsel Gonzales and chief of staff Andy Card—visited Ashcroft in the hospital to appeal Comey's refusal. In pain and on medication, Ashcroft stood by his No. 2.

Bush may be on his way to being Emperor. Many suspected the neocons and BushCo to pull something before the 2008 elections to allow Bush to suspend the election or otherwise allow Bush to stay in the White House. While that seemed paranoiac at the time, it is not out of the realm of possibility, what with Bush's team arguing daily about the powers of a unitary President during a war.

At the other end of the spectrum, there is the potential for Bush to not only be impeached for his ordering of the eavesdropping in violation of the FISA law and the 4th Amendment, but to possibly be indicted either before or afterward.

We are at a crossroads in our history, brought about by a small cabal of power-hungry individuals and a dupe at the helm, who is too stupid to understand what the plain language of the laws and the Constitution are, and who is gullible enough to believe his advisors who tell him his new clothes are so wonderful, even as they lead him on the long, tortuous road to perdition. When he awakens in his cell, some 4 years from now, and discovers that he is - and always has been - naked and out on a limb, he will be in for one helluva shock... as his cellmate closes in on his nakedness.

(At least that is the scenario I see as a happy ending for We The People.)

. . . . TD