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As I indicated yesterday, Section 107 of the FISA Amendments Act of 2007 permits the Attorney General of the United States to order physical searches of your home, your workplace, your property or any other place without the warrant required by the 4th Amendment to the Constitution. A secret FISA court can retroactively determine that the search was inappropriate, but if the Attorney General decides at his or her own discretion that information gained has something to do with a threat to somebody’s security, the information can still be used. The sick punchline is that the Attorney General is tasked with determining whether the Attorney General’s conduct in this regard is legal.

This legislation throws into stark relief the importance of the nomination of Michael Mukasey to be the next Attorney General of the United States. Mukasey refuses to characterize waterboarding as torture, even though as a simulated drowning technique waterboarding clearly qualifies as torture under the law. Mukasey embraces the principle opposite from the separation of powers: “It’s been obvious from events of the last several years that everybody is better off — the president is better off, the Congress is better off, the country is better off — when everybody’s rolling in the same direction.” And Mukasey endorses the notion that if the President decides it’s necessary for national security, he can break the law with impunity. Do you trust such a man with the sole authority to decide whether a warrantless search is appropriate, whether it is appropriate to use information obtained in that warrantless search, and whether he himself has broken the law?

When the guarantees of civil liberty set out in the Constitution are respected and when the powers set out in the Constitution are appropriately checked and balanced, even a scoundrel cannot get away with much mischief. But when civil liberties are ignored and power is concentrated, those with a hunger for power become more unaccountable and therefore more dangerous. The more authoritarian our laws become, the less authoritarian our leaders must be, as the remaining protection against tyranny is an individual leader’s sense of self-restraint. An anti-authoritarian president is needed to appoint an anti-authoritarian Attorney General, guide anti-authoritarian Justices to the Supreme Court, and introduce legislation restoring balance to our democratic republic.

(Sources: FISA Amendments Act of 2007; New York Times October 20 2007; Los Angeles Times October 24 2007; Washington Post October 19 2007)