The flouting of the law by the Bush administration seems to be a far more serious matter. I have some real concerns that the Bush folks are acting extra-Consitutionally with respect to domestic spying, ferrying of prisoners to other countries so they can be tortured, etc. I still believe that the architects of Abu Graib-type matters are in the upper ranks of White House leadership.

I approved of Clinton losing his license, but don't support an indefinite loss, either.

The ethics of Bill Clinton overall are about three or four times as great as those of George Bush, in my opinion.

"I am glad that former President Clinton isn't a lawyer anymore. Here's hoping he stays that way."

Here, here.

The oath of an attorney to uphold the rule of law is solemn, and in breaking that oath - even over something as ridiculous and irrelevant to the public as an extramarital affair - he certainly deserved disbarment. However, our current president has also swore an oath to "preserve, protect and defend the Constitution of the United States." If the text of the Constitution itself is to be any guide, our leader has, sadly, failed in that oath. Although the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." That is the limit of the president's military powers; indeed, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." Congress has the sole power to declare war, and it has not done so. Enemy combatants picked up in Iraq and Afghanistan notwithstanding, the president has no power to hold American citizens captured on American soil without "due process of the law". Furthermore, the Constitution explicitly protects "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" without a warrant. On these measures, one could argue that Mr. Bush's violation of oath is worse than Mr. Clinton's. Both are abhorrent; only one constitutes a rape of liberty.

Wireless searches of American citizens in violation of FISA and the Fourth Amendment is a violation of Bush's oath to uphold the laws and Constitution of the United States, an oath which is at least as solemn as a lawyer's oath.

I'm reasonably comfortable with the punishment imposed on President Clinton. Bush's recommended punishment?

When did it become clear that Bush acted "extra-constitutionally" in authorizing warrant-less wiretaps? The only people who have made this assertion without qualifying it are (1) journalist hacks, (2) Kos-hacks, and (3) legal hacks. I suppose this is extra-constitutional in the same way that aborting a child is extra constitutional to opponents of Roe?--i.e. it's not really extra-constitutional in the sense that the Supreme Court has declared it so, or any other legal sense, but it feels better to wrap a few legal terms in with a value judgment so that the conclusion looks dependant on something other than personal preferences.

What Bill Clinton did was clearly out of bounds under longstanding legal ethics codes. Right now the legality of what George Bush has done is, at best, unclear given the lack of clarity or precedent re: the intersection of Article II and the 4th Amendment in this context. At worst, established precedent makes this "King George the Illegal Spyer" business a Kosish meme. See Justice Jackson's opinion in the Steel Seizure case--one of the finest legal opinions ever written--or Cass Sunstein's recent statements on the matter. (He's actually a constitutional law scholar, and a fairly liberal one at that!)

A good dose of libertarian sentiment is inherently American. Disabusing oneself of the need to apply sound legal analysis when discussing current events touching upon the law may be American too, but it's unimpressive.

"When did it become clear that Bush acted "extra-constitutionally" in authorizing warrant-less wiretaps? The only people who have made this assertion without qualifying it are (1) journalist hacks, (2) Kos-hacks, and (3) legal hacks."

And the pinkos at the Congressional Research Service.

At worst, established precedent makes this "King George the Illegal Spyer" business a Kosish meme. See Justice Jackson's opinion in the Steel Seizure case...

I am familiar with that case. My co-blogger Tim Sandefur -- a vehement supporter of the Iraq war -- has opined that this case directly undercuts the administration's claim of an executive authority to wiretap without a warrant. You can read his opinion here.

Note also that while this wiretapping policy is arguably unconstitutional, it is most certainly forbidden by FISA, which explicitly outlaws warrantless wiretaps after the first fifteen days of a war. One may argue, perhaps, that FISA is unconstitutional (on what grounds?), but that does not seem to be what you are doing here.

So... Yes, it was morally wrong for Clinton to have lied about an intern playing with his weenie. In theory, he might have been blackmailed by a foreign power or another interested party who wanted some governmental favor. And besides, it's just immoral to lie about stuff like that (or even to do it, if you've made a promise, like marriage, not to do it).

But... Bush's lawbreaking is not merely a matter of potential harm to the rest of us. It's a matter of real, actual harm, because government must not be trusted with such extensive, unchecked, and unsupervised powers of surveillance. When the government has this power, our liberties are diminished, and this must not be allowed.

I say good for Google that they will stand up to the Bush administration's request for data. Once upon a time conservatives stood against a "Big Brother" intrusive government. But not anymore, it seems.

Is it too late for him to join Saddam's legal team?

I have yet to meet anyone who told me "I thought Bill Clinton was a great guy and a good president, untill that horrible lie he told."

As far as I can tell, focusing in on Clinton's rather sad attempt to wriggle out of a trap after realizing it was too late, is very similar to the "denounce this" tactics that Eric Seymour described yesterday.

If you hate Clinton for other reasons, you talk about the lie as if it was horrible for the country. But really, the lie is just a gleeful moment of truth for you -- when you said "wow, now they HAVE to admit what a jerk he is!"

If you think Clinton was good for the country, you wince at the lie, feel sorry for the guy for having to face his weaknesses in front of the country, and move on.

Again, "The only people who have made this assertion without qualifying it are (1) journalist hacks, (2) Kos-hacks, and (3) legal hacks."

The CRS report did quite a bit of qualifying.

Full disclosure: I'm by no means an expert on this, I'm just parroting what a bunch of law profs here said yesterday in defense of it all. I assume they no more about it than I do - they were some of the more respected and better known profs down here. I/they report, you, um, decide.

Fourth Amendment: not much of an issue here because there are so many exceptions to the warrant and probable cause rules that they swallow the rules anyway.

FISA: FISA has granted overwhelmingly more wiretap requests than it has denied. Ergo, it's easy to get wiretaps granted - every president (since FISA was enacted) has done this, but Bush is the only one to brag about it, and he made the mistake of doing so when he was near the nadir of his popularity.

Constitutionality: There's a seemingly weak but existent argument here. By taking the Presidential Oath, the President has agreed to uphold the Constitution. If you can then show that these wiretaps are not inherently unconstitutional AND that the President ordered them in the interest of protecting the Constitution, then he was just upholding his Oath anyway.

Alan K. Henderson

Is it too late for him to join Saddam's legal team?

What is wrong with you?

FISA: FISA has granted overwhelmingly more wiretap requests than it has denied. Ergo, it's easy to get wiretaps granted - every president (since FISA was enacted) has done this, but Bush is the only one to brag about it,

I thought the point was not that Bush requested a zillion wiretaps under FISA, but rather that despite the ease with which FISA authorization can be obtained, the Bush administration chose not to make the requests. This causes some people to suspect that they were using wiretaps in situations so beyond the pale that even the FISA court would refuse to authorize them...or that they are so stupid that they didn't realize how easy it would be to get authorization and so they broke the law unnecessarily.

I think the ease with which the Bush administration could get wiretaps legally is indeed the great issue and worry about why he chose not to get authorization. As of now, we have only Bush's word of basically "trust me." Which just reminds me of Nixon's "I'm not a crook" claim, Clinton's "I did not have sex with that woman" and Johnson's "I can see the light at the end of the tunnel" (Vietnam).

I'm with Reagan -- "trust, but verify." Bush can get all the wirtetaps he needs by just following the law. There is also no purpose on transporting terrorism suspects to other countries unless you are doing so to get around torture prohibitions.

The whole idea of a "secret court" goes against the grain of our Constitution, but going through a secret court for search and seizure at least beats unbridled freedom to wiretap.

I suspect the great issue the warrantless NSA wiretaps bring up will be the Bush/Cheney rationale for them, which happens to be the same one that Nixon used when he got popped for illegal wiretapping: that there are "circumstances in which presidents may lawfully authorize actions in the interest of security of this country, which if undertaken by other persons, even by the president under different circumstances, would be illegal."

Given that, judging by the discussion here alone, it is at least unclear that Bush's wiretaps were illegal, and that they are being used to monitor phone conversations with overseas terrorist figures, I'm very glad Bush has done what he's done. I'd be upset if he hadn't. The media has portrayed this story as "Bush spying on Americans," as though Joe and Jane Average have had their phone tapped. But most Americans don't make regular calls to Afghanistan, Iraq, Syria, etc. to chat with people tied to terrorist groups.

Why didn't he get the wiretaps authorized through FISA? Just a guess, but perhaps these might have been particularly urgent cases that couldn't wait for the FISA process?

Oh, and as for the Google thing, I haven't come to a conclusion on that but it's not clear to me that the information the Justice Dept. is seeking would be personally identifiable. It seems likely that they'd find out that a search for X yielded a certain set of results, not who typed X into the Google search window.

it is at least unclear that Bush's wiretaps were illegal

The law it has already been established in this area. Bush violated it when he authorized the warrantless wiretaps.

The Justice Department says that the president's inherent constitutional authority allowed him to ignore the law, that in the words of Richard Nixon, there are "circumstances in which presidents may lawfully authorize actions in the interest of security of this country, which if undertaken by other persons, even by the president under different circumstances, would be illegal."

The administration got shot down by the Supremes when it tried to claim that same authority with regards to holding enemy combatants indefinitely.

I think it would be safe to assume that our state of war could continue under a President Hillary Clinton. Would you be willing to give her the same blank check you seem willing to give Bush?

So, JohnS, you know better than Nick's law professors? Gee, I guess you should apply for tenure at your nearest law school.

If Hillary Clinton were to win the 2008 Presidential election, I would not only allow but *expect* her to carry out the war against al-Qaeda with the same vigilence that Bush has shown.

Some people I've read have suggested that, ironically, we might be better off fighting terrorists with a Democrat in the White House, because most liberals would be far more hesitant to criticize his/her necessary actions, and conservatives would be calling for *stronger* actions. I think there's some truth to that.

Eric Seymour:
Why didn't he get the wiretaps authorized through FISA? Just a guess, but perhaps these might have been particularly urgent cases that couldn't wait for the FISA process?

That explanation doesn't hold up. According to various news reports (e.g. http://www.cnn.com/2005/POLITICS/12/19/nsa/ ), FISA has provisions for the administration to get authorization retroactively in cases that are too urgent to wait.

In the absence of further information, I'm leaning towards the arrogance/stupidity explanation. I can just see this administration assuming that the courts would slow them down (damned activist judges!), without actually checking to see how the FISA court operates.

But, I wouldn't be shocked to hear that they were performing wiretaps they knew would fail even the very weak scrutiny of FISA

"they are being used to monitor phone conversations with overseas terrorist figures"

I believe thus far we don't know that, in fact we probably have decent evidence against it - the NYT reproted earlier this week that the NSA was picking up all sorts of calls, including even people ordering Pizza, and passing them on to the FBI. So if that story is true, then the claim that they were being used to monitor overseas terrorist figures would be untrue.

And as Nick pointed out...FISA contains a provison which allows the government to obtain a wiretap before obtaining a warrant. The Government has, in emergency situations, the right to obtain a wiretap first, then have the AG inform the FISA court that they've obtained the wiretap, and then file the application for the wiretap within 72 hours after the tap is in place, so urgency simply cannot be a justification for this.

Eric Seymour

So, JohnS, you know better than Nick's law professors? Gee, I guess you should apply for tenure at your nearest law school.

I certainly don't, but perhaps former counsel to the president, John Dean and these 14 constitutional scholars and former government officials do.

http://www.truthout.org/docs_2005/123005I.shtml

http://www.huffingtonpost.com/geoffrey-r-stone/why-the-nsa-surveillance-_b_13522.html

What is wrong with you?

Just someone who's wondering if a) there is any limit to Clinton's historic audacity, and b) it is possible for any political development to be too weird to happen.

(Actually, Clinton has been fostering a sort of working relationship with Dubya, so his chutzpah just might have its bounds. At least he hasn't turned into a shrieking maniac in retirement like Gore..)

Alan K. Henderson

The working relationship is with his father. Perhaps Bush Sr will join Clinton on the defense team in your bizarre fantasy.

And as for a "shreiking Gore": if you're referring to his most recent speech on Bush's illegal wiretapping, it got major props from david Brooks tonight on the NewsHour.

I thought that Clinton had a handful of friendly meetings with the President, although not as many as with Bush Sr., and not in connection with any major projects.

The Gore shriek that first came to mind was this: "He betrayed this country! He played on our fears!"

http://www.freerepublic.com/focus/f-news/1075263/posts

Eric Seymour

In addition to former counsel to the president, John Dean and these 14 constitutional scholars and former government officials, Hearst Newspapers reports that Congressman Jerrold Nadler and law professor Jonathan Turley also disagree with Nick's law professors!

Nadler said that the Bush Administration's legal justifications are "not even debatable. They're frivolous arguments; they're arguments that could only be made by a monarch -- by someone who's trying to justify absolute power in the executive branch."

Tutley claims that, "this type of violation should be a textbook example of the impeachment issue because not only is it a federal crime but it violates the doctrine of separation of powers."

it's a sad but true reality of the checks and balances system that one branch of government will try to consolidate and increase power until it is checked and/or balanced by another branch. Nobody screams bloody murder when Congress enacts arguably unconstitutional laws and then sees them smacked down in courts, we have reasoned and thoughful debate about the constitutionality of the law. I see some signs of that in the ruckus over W's wiretapping, but too often it's clouded by the ridiculous sentiment that Bush was flagrantly illegal in his "syping" on "ordinary citizens."

Back to Clinton, anyone??? or is it too late to refocus?

Just so that it is clear, Clinton was disbarred only by the U.S. Supreme Court, where he had never presented a case anyway. The Arkansas Committee recommended disbarment, but Clinton was suspended instead. There is a difference. In either case, one cannot practice law, but disbarment is considered much more serious. However, even disbarred attorney have been re-admitted at the state level, depending on the circumstances.

I think five years suspension is sufficient. On the other hand, I don't know if Clinton will risk the humiliation of possibly being turned down for reinstatement. If the murderer Apostle Paul could escape all punishment for his actions, it would seem that the strong-in-the faith Clinton could be forgiven.

While I understand and agree that, generally speaking, no one can know the status of another's relationship with God except God, the Bible still points to certain flags that tell us whether or not expressions of faith are to be believed.

Matthew 7:18-23 says: "A good tree cannot produce bad fruit, nor can a bad tree produce good fruit. Every tree that does not bear good fruit is cut down and thrown into the fire. So then, you will know them by their fruits. Not everyone who says to Me, 'Lord, Lord,' will enter the kingdom of heaven, but he who does the will of My Father who is in heaven will enter. Many will say to Me on that day, 'Lord, Lord, did we not prophesy in Your name, and in Your name cast out demons, and in Your name perform many miracles?' And then I will declare to them, 'I never knew you; DEPART FROM ME, YOU WHO PRACTICE LAWLESSNESS.'" [quotes taken from Bible Gateway, New American Standard Version].

Just like everyone else, Clinton is appropriately evaluated by the fruit of his life. Anyone can claim to be a follower of Christ, but it's whether his life supports his claim. That's a judgment we're called upon to make as individuals; while we're also supposed to be sure that our own lives are in order, we're not supposed to be blind to the question of whether someone claiming the name of Christ bears the fruit of his claims.