Greenwald is laying out points that he thinks people should make when explaining the NSA program. His first is this:
“(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him.“
Greenwald begins by saying that he thinks the issue is best described in this way, rather than as an issue about the rule of law. If we make it about the rule of law, the administration will be able to trot out its legal justifications, everyone will get confused, and the whole thing will just seem like an arcane legal disagreement. Far better, he says, to explain clearly what their legal theory is, and why it is genuinely radical and frightening. He then does exactly that.
“The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II “inherent authority” to engage in warrantless eavesdropping against Americans. Their argument is much, much broader — and much more radical — than that. Gonzales’ argument is that they have the right to use all war powers of which warrantless eavesdropping is but one of many examples against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.
Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil.
Anyone wishing to defend to me this program or even Bush in general has to start there.