December 19, 2005
Weak Defense +
Adding another thought.
Bush's argument: We have to destroy the constitution in order to save it.
Bush's defense for breaking the Foreign Intelligence Surveillance Act (FISA) law does not make much sense.
He and his people come up with two arguments:
1. The FISA process is too slow.
2. The president has the constitutional power to do so bacause:
2a. - he is commander in chief and the nation is at war and
2b. - congress gave him the authority to use military force after 9/11.
No. 1 is bs, because FISA allows for immediate wiretapping and gives 72 hours to get the judge's consent. During the years the judge denied surveillance only in one of thousand cases.
For no. 2 someone with real legal knowledge will have to deconstruct that defense in detail. But I doubt that lawyers and courts will agree that the CiC's power, even if it could possibly include legal power for renditions outside the U.S., would be applicable to a pure domestic law and process.
To blame congress for giving him such power is a much too wide read of that resolution and I doubt that even his own party folks will follow him there.
The whole story stinks just because of 1. There is no reason to circumvent the FISA process unless someone plans to do and does something that is obviously illegal under FISA and would never get a judges consence.
Circumventing FISA does indeed harm any further legal processing of anybody caught in the process. There is some other reason behind this. Spying on the press (the NYT phoning their Baghdad bureau?) or spying on diplomats (Powell talking to someone in Europe?) are possibilities.
Posted by b on December 19, 2005 at 01:53 PM | Permalink
And what the Pentagon does with CIFA looks illegal too.
Pentagon's Intelligence Authority Widens
[CIFA's] Directorate of Field Activities (DX) "assists in preserving the most critical defense assets, disrupting adversaries and helping control the intelligence domain," the fact sheet said. Those roles can range from running roving patrols around military bases and facilities to surveillance of potentially threatening people or organizations inside the United States.
A third CIFA directorate, Behavioral Sciences, "has 20 psychologists and a multimillion-dollar budget," and supports both "offensive and defensive counterintelligence efforts," according to a government biography of its director, S. Scott Shumate. Shumate was the chief operational psychologist for the CIA's counterterrorism center until 2003.
Posted by: b | Dec 19, 2005 2:23:17 PM | 1
Bush's unchecked Executive power v. the Founding principles of the U.S. by Glenn Greenwald
If the naked assertion of absolute power by the Bush Administration -- and the use of that power to eavesdrop on American citizens without any judicial review -- does not finally prompt the public regardless of partisan allegiance to take a stand against this undiluted claim to real tyrannical power, then it is impossible to imagine what would ever prompt such a stand.
Posted by: beq | Dec 19, 2005 2:37:08 PM | 2
in the follow-up:
As a matter of basic logic, there was never a national security threat from disclosing this information because what is being disclosed is not that the Government is engaging in certain intelligence-gathering but that it is breaking the law to do so. Thus, the only "threat" arising from disclosure of this information would be to the political and legal interests of the criminals in the Administration breaking this law knowingly and deliberately. Notwithstanding the story sold by the Administration to the ever gullible Times, no conceivable threat to American national security could exist from disclosure.
Posted by: beq | Dec 19, 2005 2:43:35 PM | 3
A good reasoning on why the president did not just circumvented FISA but the 4th Amendment. Now were may the power to do that come from?
Posted by: b | Dec 19, 2005 2:56:23 PM | 4
I have hesitated to comment on this latest outrage because I was both too angry and too depressed to, I feared, think clearly. Simply put, Bush's admission of spying on Americans without authorization by a court represents possibly the greatest violation of the U.S. Constitution in American history. Bush's actions are in direct contradiction to the Fourth Amendment, which explicitly requires a warrant before police can search a person's home. The Fourth Amendment protections similarly apply to communications, so that wiretaps, etc. always require a warrant.
Bush has offered two rationales for his action. The first is that he has implicit authority as Commander-in-Chief to do this. The right wing is enamored of this authority. The Constitution states simply that the President shall act as commander-in-chief of the armed forces of the United States. The clear purpose of this provision was to ensure civilian control over the military. Remember -- Washington's officers had offered to make him a military dictator, and America's founding statesmen were fully aware of the role the army had played in the overthrow of Charles I of England and the establishment of the Commonwealth. They were fanatical about civilian control over the army. Now Bush and his apologists have twisted that principle into an effective right of dictatorship, enabling the President to become precisely the military dictator the Constitution was meant to prevent.
Bush's rationale overlooks another basic rule of statutory construction. The Fourth Amendment is an amendment to the Constitution. It specifically restricts the powers entrusted to the three branches of government by the Constitution proper. At the risk of sounding legalistic, it is a fundamental canon of statutory construction that specific amendments override any general authority. Thus, the Fourth Amendment prohibition against warrantless searches specifically limits any powers the President might have as Commander-in-Chief.
The other rationale Bush gives is that Congress implicitly authorized him to spy on Americans in the post-9/11 resolution that ostensibly gave him the power to use force against terrorists. As Sen. Russ Feingold and others who voted for the resolution have noted, the resolution said absolutely nothing about authorizing secret spying on Americans. Even if it did -- and when Congress intends to limit a Constitutional right, the limitation must be explicit -- the problem with the Fourth Amendment would remain. While Constitutional rights are not absolute (the Constitution is not a suicide pact, as Justice Holmes stated), laws can restrict those rights only to the extent necessary to achieve some vital public purpose. In this case, the FISA sets up a demonstrably effective procedure for obtaining warrants for wire taps on an expedited basis, or even after the wire tap has been put into place.
Bush's invocation of the 9/11 resolution is eerily similar to Germany's passage of the enabling act after the Reichstag fire in 1933. Okay, I've just violated Godwin's law, but the parallel is striking. In both cases, the ruler used an apparent national emergency as the occasion for obtaining sweeping powers from the legislature. The difference is that Hitler did it explicitly. Moreover, the Enabling Act at least in theory put limits on what he could do; he could not, for example, eliminate the Reichstag, and in fact the Reichstag continued to dutifully rubberstamp Hitler's decrees until the very end of the war. Bush, on the other hand, is claiming that the 9/11 resolution gives him limitless powers, even though its terms are narrowly focused on the use of force against terrorism.
I am not a Constitutional lawyer, but I have practiced enough Constitutional law to be familiar with the core concepts. The principles enunciated by Bush represent nothing less than the overthrow of the U.S. Constitution. According to Bush, the President can do anything he wants, so long as he justifies it as fulfilling his duties as Commander-in-Chief. This is directly contrary to the plain language of the Constitution and 216 years of American history.
I cannot stress enough how utterly unprecedented Bush's actions are. At the risk of sounding melodramatic, I truly believe this represents the greatest threat to the Constitutional order in American history. This isn't an exaggeration. The Civil War was certainly a painful event, but the Confederacy never aimed to overthrow the Constitution of the United States itself; it just wanted to establish its own order. Bush, on the other hand, claims the right to exercise unlimited dictatorship.
Bush is dangerous. This is not just politics as usual. Impeach Bush. Impeach him now. Otherwise, the whole world will suffer.
I realize that by posting this, I'm probably bringing myself to the attention of the NSA, the FBI, the Pentagon, and whoever else is spying on Americans. If that's you, ask yourself who the true patriot is, and whether what you're doing is really making the United States any safer. My family has been in Virginia and Georgia since before the United States was a country. I will die before I let these traitors take my country away from me.
Posted by: Aigin | Dec 19, 2005 4:51:52 PM | 5
What troubles me about all this is how easy it was for him to say that he was doing it and that he will continue to do so.
I fear the worst, that our own chamber of people's deputies will do absolutely nothing about this and establsh the precedent. The papers obviously don't care and common citizens are scared out of their minds unable to do anything. Hell yeah we are being watched, I don't really worry about it. If these bastards want to lock me up all they have to do is come get me. I can use a break anyway.
Posted by: dan of steele | Dec 19, 2005 5:06:36 PM | 6
@Aigin - let me thank you for your knowledge and determination.
Posted by: b | Dec 19, 2005 5:11:09 PM | 7
@dan - If these bastards want to lock me up all they have to do is come get me. I can use a break anyway.
Wwatch yout toenails
Posted by: b | Dec 19, 2005 5:26:01 PM | 8
From Today's Democracy Now:
MARTIN GARBUS: ...
And the United States Supreme Court said no. The United States Supreme Court said you can’t do this. The United States Supreme Court said that the President does not have that kind of power within the Constitution. He has the power to protect the nation, but this goes beyond that. He can’t violate the Constitution. That's exactly what's happening now. And what’s going to happen is: You now have a different Supreme Court. You’re going to have Roberts, probably Alito, and my judgment is they're going to uphold what Bush is doing, and in effect, they're going to reverse, though not directly, the Nixon case. It's a strategy to get past that Nixon case and to give the President the broadest powers that any President has ever had.
CHRISTOPHER PYLE: Not terribly surprised, but the one piece of it that amazes me is that the President admitted that he personally ordered the National Security Agency to violate a federal statute. Now, he has no Constitutional authority to do that. The Constitution says he must take care that all laws be faithfully executed, not just the ones he likes. The statute says it's, as you said at the beginning of the program, that the Foreign Intelligence Surveillance Act is the exclusive law governing these international intercepts, and he violated it anyway. And the law also says that any person who violates that law is guilty of a felony, punishable by up to five years in prison. By the plain meaning of the law, the President is a criminal.
AMY GOODMAN: Martin Garbus, you say this is an impeachable offense.
MARTIN GARBUS: Yes, I agree that it is a crime, that it is an impeachable offense. The question is: What will happen? The mere fact that it’s impeachable doesn't necessarily mean that the Supreme Court will find that, and it doesn't mean that he will necessarily be impeached. He should be impeached, but he is claiming, for the first time, that he has the authority to do this, even though FISA is there, because he has relied on counsel. He has relied on John Yoo. He has relied previously on Ashcroft, and he’s now relying on Gonzales. And all of these people are telling him that it's legal. All these people are telling him that the President's powers can be expanded, even though FISA is there. And the President has come up with an excuse, which I don’t see how anybody can buy. In FISA, you can get a warrant in five minutes. You just go before the FISA court and you get your warrant, and that's all there is to it. There’s no argument --
AMY GOODMAN: And the issue about torture, the Levin-Graham amendment?
MARTIN GARBUS: I think that -- I think it's astonishing, first of all, that it's the Levin amendment. And when that first passed in the Senate--
AMY GOODMAN: This is Michigan Senator Carl Levin.
MARTIN GARBUS: One of the most, perhaps, liberal, one could argue, members of the Senate. Now, when that bill passed in the Senate, it was 79-16. So, I think it's extraordinary the extent to which the Democrats have capitulated on this particular issue. I think this business about the PATRIOT Act, I think it's just a firestorm. I think, ultimately, it's going to be passed, and they are going to rely on the President's authority at the end of the day. You really don't need the PATRIOT Act if the President has all of this authority.
So, they're switching the argument. They no longer need that particular statute. This comes within the President's Article 2, Section 2 rights under the Constitution to protect the people. They have changed the battleground to bring it close to the Nixon case, which they, with this new Supreme Court, will overrule. The Nixon case was ’72. At that time, you had Brennan, Marshall, Douglas. This is a very, very different court.
It is very dangerous to think Bush doen't know what he is doing. This is a set-up. It has been in the works a long time. All the elite know what is going on. But it is being obfuscated by the politicians and the media, so the public doesn't understand. As the US corporations lose influence around the world, we lose power within the country. These are very dangerous times...
Posted by: Malooga | Dec 19, 2005 5:40:17 PM | 9
It was about 3 am here when Bush's little mea non culpa aired live so my perspective is even more jaded than usual. I couldn't help but note that not only did the press not 'press' there were some plants amongst em who Dubya turned to when he felt cornered; ie all the time. Doesn't bode well for the future of democracy in the US. One could just as easily argue that elections were impeding the war on terra therefore it is necessary to suspend them to assure victory.
Posted by: Debs is dead | Dec 19, 2005 5:42:58 PM | 10
Is there any sense of outrage amongst any other than the usual suspects? As I understand it the latest SCOTUS nominee hasn't been approved by the senate yet.
A senate that had a pair wouldn't ratify any SCOTUS nominee of Bush's just because this issue is in the pipeline. Either that or all repug nominees should recuse themselves. Lol watchout for pigshit raining from the heavens.
Posted by: Debs is dead | Dec 19, 2005 7:01:19 PM | 11
Thank you for your post,Aigin.
Posted by: Malooga | Dec 19, 2005 7:24:09 PM | 12
Thanks for your heartfelt post. Soviet Russia couldn't last as a police state, and this Bush junta will also fall...and hard, if anyone is left in power who gives a shit.
Posted by: fauxreal | Dec 19, 2005 8:06:52 PM | 13
If these people are in the U.S. with known links to a terrorist organization the FBI should get a warrant and monitor ALL of their communications, not just the international ones. Is Bush that stupid?
Posted by: ML | Dec 19, 2005 9:51:41 PM | 14
merci for your precision & yr righteous passion
above all, you are exact
Posted by: remembereringgiap | Dec 19, 2005 10:12:06 PM | 15
The Hamitonian wing of US politics have always wanted an imperial government. They have always longed for the pomp and circumstance of a monarchy. This is common throughout history, the people become to lazy to govern themselves and rely on the judgement of assholes like Bush. Dictators, kings, strongmen, dictators in the name of freedom (communism?) you name it.
Not to thump the Bible, but the Bible has an example of a people wanting a king. It eventually led to their destruction. With fundies willing to follow der leader and the rethug and press sycophants following suite, we are in deep f---ing doo, doo.
We must press for impeachment. I got into a argument with a fundie in our office today. She gave the bullshit that this is a different era with the war on terra. I called her out and told her bullshit.
Posted by: jdp | Dec 19, 2005 11:42:05 PM | 17
The situation is hopeless: take a look at the righty blogs (not the traditional conservatives, but the "national security justifies all, and Clinton did it too" types).
Perhaps those who seriously desire to remove Bush from office should be looking at his sex and drug life, since only scandals of that nature will shock his electorate out of their dogmatic faith. By now I don't think that an Iraqi variant of the Tet offensive (probably imminent) or even the truth about 9/11 would be sufficient disabuse his supporters of their creed.
For far too many powerful and fanatical factions
Bush is clearly the ideal president. Hence he will not
be driven from office by mere elite consensus, as happened with Nixon.
There is too little outrage and no hope. Sic transit gloria rei publicae.
Posted by: Hannah K. O'Luthon | Dec 20, 2005 2:03:52 AM | 18
Newsweek: Bush’s Snoopgate
No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president’s desperation.
The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference.
No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.
Posted by: b | Dec 20, 2005 2:12:12 AM | 19
Why BushCo would bypass the FISA court, the warrant process--
it appears that they did not want FISA to know what they were after, or -- what method they were using.
They may have been spying on political enemies, which FISA would not approve.
Or, they could have been fishing through the American population for resisters. With PROMIS software, and ECHELON the NSA can sweep up every phone, fax and cell conversation on East Coast, every online banking transaction, every email, every text message, and run it through the supercomputer and come up with every Democrat vegetarian fur-hating gun-owning lesbian secular libertarian who has said the eff word about Bush in the last 90 days.
That's just for starters.
Then they go after gun owners.
Posted by: Antifa | Dec 20, 2005 2:54:43 AM | 20
NYT: Administration Cites War Vote in Spying Case
Offering their most forceful and detailed defense of the program in a series of briefings, television interviews and a hastily called presidential news conference, administration officials argued that the existing Foreign Intelligence Surveillance Act was not written for an age of modern terrorism. In these times, Mr. Bush said, a "two-minute phone conversation between somebody linked to Al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives."
Officials with knowledge of the program have said the Justice Department did two sets of classified legal reviews of the program and its legal rationale. Mr. Gonzales declined to release those opinions Monday.
Two of the key Democrats who had been briefed on the program said Monday that they had been told so little that there was no effective Congressional oversight for it.
In a highly unusual move, Senator John D. Rockefeller IV of West Virginia released a letter he sent to Vice President Dick Cheney on July 17, 2003, complaining that "given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities." The letter was handwritten because secrecy rules prevented him from giving it to anyone to type.
On Monday Mr. Rockefeller said that after he sent his letter to Mr. Cheney, "these concerns were never addressed, and I was prohibited from sharing my views with my colleagues."
Mr. Bush, Mr. Gonzales and Lt. Gen. Gen. Michael V. Hayden, the nation's second-ranking intelligence official and a former director of the National Security Agency, which conducted the surveillance, stepped around questions about why officials decided not to use emergency powers they have under the existing foreign surveillance law. The law allows them to tap international communications of people in the United States and then go to a secret court up to 72 hours later for retroactive permission.
Posted by: b | Dec 20, 2005 3:47:43 AM | 21
Didn’t catch any internal ‘terrorists’ (pace Padilla)
Didn’t catch Binny or Mullah Omar.
Don’t catch Iraqi ‘insurgents’ - just implement random sweeps and torture to obtain false confessions (still going on btw, guess it is not the handwringing topic du jour)
Can’t catch Nick Berg’s or Daniel Pearl’s killer(s)
Couldn’t apprehend the person(s) or group responsible for the anthrax mailings and murders
Hasn’t arrested any Americans or indeed anyone for terrorism or anything else (beyond the consequent spate of imprisonment and deportation of Muslims after 9/11, none of them proved guilty of anything beyond administrative immigration laws afaik)
Hasn’t presented any proof or indications of guilt for any of the prisoners held in Gitmo, Bagram, or anywhere else
Hasn’t been able to show that the star prisoners they hold (K. Sheik Mohammed, Ramsi Binalshib, - perhaps - are guilty of something, and have subsequently provided vital information about Al Q actions, functions, infrastructure...)
Hasn’t arrested or swept up - da black boots - any US dissidents
Hasn’t convicted anyone at all for 9/11
Bit of a problem all that...
Posted by: Noisette | Dec 20, 2005 3:39:41 PM | 22
Well, Noisette. They can't tell you all that they have done. "National Security", you know. A blanket of security for them.
Posted by: beq | Dec 20, 2005 8:54:54 PM | 23
They did arrest Sami Al-Arian but the jury refused to convict him of any of the charges against him. Then too there was the shoddily constructed Detroit "terrorism" case, which, if I recall correctly, didn't even make it to the court room.
It's increasingly evident to those with eyes that
the GWOT is nothing but a murderous scam for the benefit of a criminal class of politicians and their puppeteers. But of course vast strata of the American electorate have imbibed so much of the anti-terror kool-aid that they are ready to patriotically piss on the "traitors in their midst".
Posted by: Hannah K. O'Luthon | Dec 21, 2005 1:21:16 AM | 24
"All the federales say
we could've had him any day
we only let him slip away
out of kindness I suppose."
Townes Van Zant
Posted by: vt buffalo | Dec 21, 2005 11:21:53 AM | 25