In this post, I argue: 1) General Hayden's comments were a legal argument, not a mistake; and 2) Bush would like to make domestic wiretapping legal by reversing the Katz case from 1967.

1. General Hayden's Comments Weren't a Mistake

Atrios and mcjoan at Dkos have ridiculed General Hayden for saying, "The constitutional standard is `reasonable'" when the plain text of the Fourth Amendment requires "probable cause." Just to be clear, the General isn't making a mere silly statement here because he isn't familiar with the text of the Fourth Amendment. No, it's almost certain that he's correctly parroting the Bush Administration's legal view on the matter.

The Bush administration's view that the Executive has unfettered power during war cannot possibly be correct. One reason may be that the administration's view would mean that Bush has, in fact, impermissibly declared martial law.

There is little uncertainty about the administration's view.  In Yoo's 9/25/01 memo, he argues that Congress can't "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

In other words, they believe Bush's Commander-in-Chief power makes him the sole arbiter of how to respond to terrorists threats, so congressional and constitutional limitations do not apply.

But is this martial law?

Novelist Jane Smiley, in an entry at HuffPo called "The Republicans: Winners or Perpetrators?," identified the "greatest sins" for liberals and conservatives.

On liberals, she wrote:

"I've noticed that for most liberals, the greatest sin is murder. Liberals recoil at harming others. The fact that the Iraq war has physically harmed tens of thousands of Iraqis, not to mention many thousands of American soldiers, is the red letter immorality that defines that misadventure for liberals."

On conservatives, she wrote:

"To a conservative, the greatest crime is betrayal of the tribe .... To the conservative mind, harm may be justifiably done to others who do not conform. Doing harm to others is a relative evil, not an absolute one."

Smiley's thesis raises the question of what the parties see as the greatest political virtue. And knowing your political enemies' view of the greatest sins and virtues may enable you to build political bridges -- or burn them.  

At Booman, Media Girl pointed to a John Dean article suggesting another basis for prosecuting Rove, which I discuss below. I dug up a couple cases that suggest the law would apply.

Ready for your eyes to glaze over? Here's the statute, 18 USC § 641 ("Public money, property or records"): "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof" shall be fined, imprisoned for up to 10 years, or both.

Matthew Yglesias today rails against the possibility of President Bush pardoning Matt Cooper and Judith Miller, the journos held in contempt in the Plame case. Calling the possibility "appalling," Yglesias states that the pardon power "isn't supposed to be used in order for a president to facilitate a coverup of official wrongdoing by his staff." Fair enough. Just one little thing, though: Does the president even have to power to pardon Cooper and Miller?

It's official. We're living through the first postmodern presidency where black is white and good is bad. Postmodernism in literary criticism can produce interesting interpretations that shed a different light on a familiar work. A postmodern approach to national security issues, however, is just plain dangerous. For the president, truth is irrelevant and loyalty is everything. Thus, analysts are rewarded when they draw conclusions that comport with the way things ought to be, even if their conclusions are inaccurate. And analysts are punished when they draw conclusions that are accurate, if the conclusions fail to comport with the way things ought to be. That is, if the analysts are wrong, they're right; if they're right, they're wrong.

Consider:

Kos wrote a concession speech: "You all have much to be proud of. But please don't think your job is done, or that your hard work was all for naught. It's not, and it wasn't. This is just the beginning, not the end."

Screw that. Let's take this thing to the bitter, bitter end.

The spin started against Kerry before he had even lost a significant state. The Monday Morning Quaterbacking was trotted out on Sunday. They said, "The failures of Kerry's campaign were obvious since August." You know what's next.

"Bush will inevitably be elected." Right? More: "Kerry is hurting America by refusing to concede." Right? You're being spinned, kids.

Here's how it works: Fox calls the election for Bush. MSNBC follows. The pressure on CNN and Kerry himself will be enormous to concede because it's "good for America."