Monday, December 19, 2005

EXCLUSIVE: Bush Dead Wrong On NSA Surveillance

President Claims He Has Authority To Order Wiretaps Without Court Approval -- But a Unanimous Nixon-Era Supreme Court Ruling Says Otherwise

By Skeeter Sanders
(Copyright 2005, Skeeter Sanders. All rights reserved.)

George W. Bush, in one of the most daring acts of imperial hubris ever committed by a sitting president, brushed aside bipartisan criticism in Congress Monday and insisted that he was acting within his constitutional authority when he approved electronic spying on suspected terrorists on U.S. soil without court orders -- an authority that the nation's highest court unanimously declared more than 30 years ago does not exist.

Asserting that it was "a necessary part of my job to protect" Americans from attack, the president vowed that he would continue the program "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens," and added it included safeguards to protect civil liberties.

In his opening remarks at a year-end White House news conference, Bush said the warrantless spying, conducted by the National Security Agency, was an essential element in the war on terror and he blasted The New York Times for making the existence of the program public.

"It was a shameful act for someone to disclose this important program in a time of war. The fact that we're discussing this program is helping the enemy," he said.

The Times revealed the existence of the eavesdropping last Friday, setting off a firestorm of bipartisan criticism on Capitol Hill and a promise of an investigation and public hearings by Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee.

If anybody has committed a shameful act, it is the president himself. His claim that he has the authority to authorize wiretaps without a court order is as phony as a three-dollar bill -- and is blatantly unconstitutional.

The president spoke not long after Attorney General Alberto Gonzales said Congress had given Bush authority to spy on suspected terrorists in this country in legislation passed after the attacks of September 11, 2001. But several members of Congress of both parties strenuously denied that.

Gonzales ought to be fired for not properly doing his legal homework. As attorney general, he should have known that it is a violation of the Fourth Amendment for the federal government to authorize national security surveillance on American citizens without the approval of a court of law.

Nixon Tried It -- And Lost

So ruled the U.S. Supreme Court, in a 1972 case that overturned the convictions of three defendants who were charged by the Nixon administration with conspiring to destroy -- and one of them with actually destroying -- government property.

Ironically, the decision was handed down just two days after the Watergate break-in on June 17, 1972 -- which led to the scandal that eventually toppled Richard Nixon's presidency.

With then-Associate Justice William Rhenquist not participating in the case, United Stastes v. United States District Court for the Eastern District of Michigan, et al., the justices ruled 8-0 that the Fourth Amendment's ban on unreasonable searches and seizures required prior judicial approval for national security wiretaps.

The 1972 case arose from a criminal proceeding in the Detroit-based U.S. District Court for the Eastern District of Michigan, in which the Justice Department charged three defendants with conspiracy to destroy government property.

One of the defendants, identified in court papers only by his surname, Plamondon, was also charged with the dynamite bombing of an office of the CIA in Ann Arbor, Mich.

During pre-trial proceedings, the defendants' attorneys moved to compel the government to disclose certain electronic surveillance information and to conduct a hearing "to determine whether this information 'tainted' the evidence" on which the charges against the defendants were based.

Justice Department Admitted It Eavesdropped Without Warrants

In response, the Justice Department filed an affidavit by then-Attorney General John Mitchell acknowledging that the department's agents had overheard conversations in which defendant Plamondon had participated.

The affidavit also said that Mitchell approved the wiretaps "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government."

The Justice Department argued that the surveillance was lawful, even though it was conducted without prior judicial approval, "as a reasonable exercise of [then-President Nixon's] power, exercised through [Mitchell], to protect the national security."

The district court ruled that the warrantless surveillance violated the Fourth Amendment and ordered the government "to make full disclosure to Plamondon of his overheard conversations."

The government appealed to the Sixth Circuit Court of Appeals in Chicago to set aside the district court's ruling. The appeals court ruled that the surveillance was indeed unlawful and upheld the lower court's decision. The government promptly appealed to the Supreme Court.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the relevant statute at issue in the case, authorizes the use of electronic surveillance for certain classes of crimes, but requires a judicial order for such surveillance to be valid.

The Supreme Court struck down a key provision of the Safe Streets Act that the Justice Department argued gave the president the constitutional authority to unilaterally "take such measures as he deems necessary to protect the nation against an actual or potential attack or other hostile acts of a foreign power, to obtain intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities..."

The justices even cited another provision in the statute itself, in which "where the Act authorizes surveillance, the procedure to be followed...therefore requires application to a judge of competent jurisdiction for a prior order of approval and states in detail the information required in such application."

Powell: Fourth Amendment Aimed to Bar 'Unrestrained Abuses'

Justice Lewis Powell, writing for the court, declared that "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses...

"These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch," Powell continued. "The Fourth Amendment does not contemplate the executive officers of government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate and to prosecute.

"But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks," Powell wrote."The historical judgement, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressure to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

An Abuse of Presidential Power

That the president of the United States has the responsibility to defend the nation against threats of attack is beyond dispute. But for Bush to assert that he has the authority to authorize wiretaps and other electronic surveillance on people -- citizens and foreigners alike -- on U.S. soil without prior approval of a court of law is not only unconstitutional, but is also an outrageous breach of his oath of office to "preserve, protect and defend the Constitution of the United States."

It is even more outrageous that this president would make such a bold assertion in spite of a clear and unanimous Supreme Court ruling to the contrary.

What George W. Bush has done is a clear and unequivocal abuse of presidential power -- the worst abuse of executive authority since Nixon -- for which Bush must be held accountable.

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Volume I, Number 3
Copyright 2005, Skeeter Sanders. All rights reserved.

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