The right is desperate to defend Bush’s warrantless domestic surveillance program with the argument “Clinton did it too.” They’ve tried to make this case before and have failed repeatedly.

The National Review’s Andy McCarthy is giving it another go. (Michelle Malkin calls it a “must-read“) Here’s the essence of his latest effort:

As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, [Walter] Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

McCarthy argues that Dellinger’s statement “illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers – just as [the Foreign Intelligence Surveillance Act] does.”

The reason why Dellinger said the President should refuse to enforce unconstitutional statutes is because it’s true. But that principle doesn’t help the Bush administration at all in the current debate. Here’s why:

1. The Bush administration has never argued that FISA is unconstitutional. That argument wasn’t advanced in the Justice Department’s 42-page defense of the program, Attorney General Alberto Gonzales’ press conference or President Bush’s radio address. So the idea that the President has the right to ignore an unconstitutional statute is irrelevant.

2. The Bush administration has never argued that FISA is unconstitutional because it’s a really bad argument. As a group of constitutional scholars explain in the New York Review of Books: “the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation…Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise.”

So, it’s another bogus argument. But the right will keep repeating it until it loses all credibility. Then, they’ll drop it and make up another one. Rinse and repeat.

The Independent confirms a report by the Guardian on a newly-revealed British memo. The memo claims that Bush made the decision to attack Iraq two months prior to the war. Furthermore, the memo states that Bush was thinking about baiting Iraq into a breach of UN resolutions by “flying U2 reconnaissance aircraft with fighter cover over Iraq, painted in UN colors.”

This most-recent memo is just the latest in a series of official British government documents that have revealed shocking information about how Bush misled the nation into Iraq (see the original Downing Street Memo and the British Briefing Papers revealed previously by ThinkProgress).

There are two things all these memos share in common: 1) none of the memos’ validity has been disputed, and 2) the U.S. media has been slow to cover every single one of them. In fact, while reputable British papers such as the Guardian, the Independent, and the Financial Times have already reported on the most recent memo, no American newspaper has.

If the American media decided to aggressively report on the evidence contained in these British memos, here’s the story they would find:

“Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.” [Link]

“US is scrambling to establish a link between Iraq and Al [Qaida that] is so far frankly unconvincing.” [Link]

“Even the best survey of Iraq’s WMD programmes will not show much advance in recent years on [the] nuclear, missile or CW/BW fronts.” [Link]

“Indeed if the argument [for attacking Iraq] is to be won, the whole case against Iraq and in favour (if necessary) of military action, needs to be narrated with reference to the international rule of law.” [Link]

“A legal justification for invasion would be needed. Subject to law Officers advice, none currently exists.” [Link]

“The NSC (National Security Council) had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime’s record.” [Link]

Read more

Money raised, so far, for Scooter Libby’s legal defense fund. The goal is $5-6 million. Website launching soon.

“Rep. Michael Oxley, outgoing chairman of the House Financial Services Committee, shouted in outrage at a closed-door conference of House Republicans last Tuesday in protesting a reform barring from the House gymnasium former congressmen who become lobbyists. Oxley, who is not seeking election to a 13th term, is expected to become a lobbyist.”