We survived 'voodoo' economics to get where we are - barely surviving. The question now is, can the United States survive Yoodoo law?

"The constitutional theory he espouses goes like this - neither the congress nor the judiciary (and by inference the laws they promulgate and interpret) have authority over an equal branch of government."

The axe cuts two ways. With the president having no authority over congress or the judiciary. Balances and checks. No branch more equal than any other.

"If anything rises to arguments before the Supreme Court on whether the administration acted unconstitutionally here and there - as in obviously breaking the law - these can be trotted out to explain things."

This is saying that the constitutional theories of a political hack - Yoo - carry more legal weight than the judicial opinions of the Supreme Court of the United States. If so, why have a Supreme Court?

I've said it before - lawyers are going to live a long time, have whole careers, with this mess. But what do I know?

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a "foreign power" or an "agent of a foreign power." 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the government must establish probable cause that the party's activities "may" or "are about to" involve a criminal violation.

FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be "solely directed" at gathering intelligence from "foreign powers" and there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 50 U.S.C. § 1802(a). The surveillance authorized by the President, however, involved U.S. citizens, thus making ? 1802 unavailable.

FISA also has § 1844, which provides that "the President, through the Attorney general, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence for a period not to exceed 15 days following a declaration of war by Congress." 50 U.S.C. § 1844. I don't know many details about the timing of the surveillance, but regardless of timing, the surveillance appears to have far exceeded the limited authorization in § 1844. The NY Times article suggests that the NSA may have engaged in wiretaps or other forms of electronic eavesdropping extending far beyond pen registers or trap and trace devices, which merely provide information about the phone numbers dialed.

Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I'm not an expert on the intricacies of the executive's military powers, so perhaps there's a justification. Thus far, however, the Bush Administration's "creative" interpretations of its legal authority to engage in surveillance, to detain enemy combatants, and to engage in torture seem to be just as "creative" as Bill Clinton's interpretation of what "sex" is.

Apparently, the President does have a legal rationale for his actions, but according to the NY Times article, it is classified. I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law. And please, no more "creativity."

President Bush said Saturday he personally has authorized a secret eavesdropping program in the U.S. more than 30 times since the Sept. 11 attacks and he lashed out at those involved in publicly revealing the program.

... "This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," Bush said.

... Appearing angry at times during his eight-minute address, Bush left no doubt that he will continue authorizing the program.

"I intend to do so for as long as our nation faces a continuing threat from al-Qaida and related groups," he said.

This appears to me to be a true "line in the sand" moment for America, with a president openly and defiantly declaring himself ready to continue a program that legal scholars, members of Congress and - according to the Friday New York Times article that started this all - several NSA analysts themselves believe to be unconstitutional.

There appears to be no acknowledgement whatsoever of concerns voiced by critics of the program. There is the feeling in the air about all this - and perhaps it's just me - that we are being forced to a constitutional crisis by a president who no longer believes he needs to wear a mask to court public opinion. This reeks of raw will and power.

In his radio address today, discussing the NSA domestic wiretapping, the president said - "The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

How can this be true?

If I'm understanding this correctly, this program allowed the president to conduct warrantless wiretaps in cases where he could have conducted the same wiretaps with warrants by seeking a warrant from the FISA Court. If the wiretaps were against the "international communications of people with known links to al Qaeda and related terrorist organizations" then the FISA Court certainly would have issued the warrants.

So it's the same difference.

How very gallant of the New York Times to wait until after the "accountability moment called the 2004 elections."

How can we ever thank that bastion of journalistic integrity for their display of patriotism?

... the Bush administration may still secure something of a victory in the Graham bill. According to an amended draft of the measure being circulated Thursday among the sponsors, Graham has agreed to language that loosens the restrictions on terror evidence that's obtained through "coercive" interrogations that may occur in other countries. Whereas Graham's previous draft had forbidden the use of such evidence - in accordance with standard rules of military justice - the new draft says that it should be barred only "to the extent practicable." The latest bill language also now says that the "probative value" of evidence should be considered - in other words, whether the information is persuasive.

In theory, this would permit U.S. military tribunals to use evidence obtained through torture or abuse in the prisons of other countries. The new Graham draft also adds more restrictions on the rights of terror detainees to sue or launch an action against the U.S. government outside of a narrow appeals process.

Wes Hickman, a spokesman for Graham, said he had no immediate comment on the negotiations. However, a Republican Senate aide who spoke on condition that he would not be named conceded that new language had toughened the bill. "There was a clause in the original bill that said the [tribunals] had to exclude any statements that were the result of torture or coercion. Now that's been changed to a 'consideration' clause that says the tribunal board must take into account the source of the information."

He contended the change had been requested by military judge advocates general.