Sunday, February 12, 2006

Evidence Mounts That Bush Broke Law With NSA Wiretap Program

Liberals and Conservatives Now Agree That Surveillance Without Prior Judicial Approval Violates FISA Law. But Will Bush Also Be Cited for Contempt of 1972 Supreme Court Wiretap Ruling?

By Skeeter Sanders

As the Bush administration continued with its full-court press to justify its warrantless -- and unconstitutional -- electronic eavesdropping, evidence mounted last week that its campaign is not only falling on deaf ears, but it's actually intensifying the storm of opposition against it.

And the the opposition is no longer limited to liberals and congressional Democrats. Conservatives and congressional Republicans are speaking out against the program as well.

A report released by the Congressional Research Service (CRS) -- a branch of Congress' nonpartisan investigative arm, the Government Accountability Office -- concluded that the administration's justification for the eavesdropping authorized by President Bush without prior judicial approval conflicts with existing law and hinges on weak legal arguments.

The report sharply rebuked assertions by Bush and Attorney General Alberto Gonzales that the president has the "inherent authority" to unilaterally order secret intercepts by the National Security Agency of telephone and e-mail exchanges between people inside the United States and their contacts abroad.

It said Bush's claim of broad presidential powers that he has relied upon as authority to order the secret monitoring of telephone calls made by U.S. citizens since the September 11, 2001 terrorist attacks is not supported by the Foreign Intelligence Surveillance Act (FISA).

"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the report's authors wrote. "The administration's legal justification does not seem to be . . . well-grounded."

The FISA law, passed by Congress in 1978, established the Foreign Intelligence Surveillance Court specifically to review and either approve or reject requests from the executive branch for warrants authorizing such surveillance for national security purposes -- and explicitly requires the government to seek such warrants.

"This report contradicts the president's claim that his spying on Americans was legal," said Sen. Frank Lautenberg (D-New Jersey), one of the lawmakers who asked the CRS to research the issue. "It looks like the president's wiretapping was not only illegal, but also ensnared innocent Americans who did nothing more than place a phone call."

The report also rejected Bush's assertion that Congress gave its blessing to such eavesdropping when it approved the post-9/11 resolution authorizing the president to use military force against al-Qaida and its Taliban sponsors in Afghanistan.

Justice Department spokesman Brian Roehrkasse said the president and the administration believe the program is on firm legal footing. "The national security activities described by the president were conducted in accord with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," he said.

Gonzales' Testimony Doesn't Impress Senators

Attorney General Gonzales did not help the president's case when he testified last Monday before the Senate Judiciary Committee, according to committee chairman Sen. Arlen Specter (R-Pennsylvania), who openly ridiculed Gonzales' explanations as "strained and unrealistic."

Gonzales argued in his testimony that Bush had authority under the 9/11 resolution authorizing force in the fight against terrorism and that complying with the FISA law would be too cumbersome. "The terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack," Gonzales said.

"I believe that contention is very strained and unrealistic," Specter said, adding that if the FISA law was inadequate, the president should have asked Congress to amend the law rather than ignore it outright. "The authorization for the use of force doesn't say anything about electronic surveillance," Specter insisted.

Sen. Patrick Leahy of Vermont, the committee's top-ranking Democrat, predicted that the committee would have to subpoena the administration to obtain internal documents that lay out the legal basis for the program. The Justice Department has refused to supply them, citing in part the confidential nature of legal communications.

Specter said his committee would consider taking that step, adding that he would also draft an amendment to the FISA law to empower the Foreign Intelligence Surveillance Court to rule on the constitutionality of the warrantless program.

The disclosure in December of the administration's spy program by The New York Times has, predictably, triggered sharp criticism of the White House by civil libertarians and liberal critics of the war in Iraq. Four lawsuits -- one by the American Civil Liberties Union -- have been filed in federal court to stop the program unless the White House obtains FISA court approval.

There are also certain to be motions made by defense attorneys representing terrorism suspects to have any evidence obtained under the warrantless surveillance declared inadmissible in any future trials.

Republican Angst Grows on Capitol Hill

But critics on the left are not alone in their attacks on the administration's illegal spy program. A growing number of congressional Republicans and prominent conservatives are also speaking out against it.

Rep. Heather Wilson, (R-New Mexico), chairman of the House subcommittee that oversees the NSA, broke ranks with Bush last Tuesday to declare her "serious concerns" about the warrantless eavesdropping and called for a full-scale congressional investigation.

"I don't think that's sufficient," Sen. Susan Collins (R-Maine) said. "There is considerable concern about the administration's just citing the president's inherent authority or the authorization to go to war with Iraq as grounds for conducting this program. It's a stretch."

Sen. Lisa Murkowski (R-Alaska) said the more she learned about the program, the more its "gray areas" concerned her.

And even Sen. Orrin Hatch (R-Utah), a staunch supporter of the NSA program, said that although he did not think the FISA law needed revising, "Congress has to have more oversight."

Conservative Groups Also Balking At Warrantless Wiretaps

The leaders of several prominent conservative groups, also longtime backers of the president's war on terror, voiced their own concerns over the warrantless wiretaps.

Former Rep. Bob Barr (R-Georgia) urged his old colleagues on Capitol Hill "use the NSA hearings to establish a solid foundation for restoring much-needed constitutional checks and balances to intelligence law."

Barr, now chairman of the libertarian conservative group Patriots to Restore Checks and Balances, was joined by fellow conservatives Grover Norquist, president of Americans for Tax Reform; David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman and CEO of the Free Congress Foundation and Alan Gottlieb, founder of the Second Amendment Foundation.

"When the Patriot Act was passed shortly after 9/11, the federal government was granted expanded access to Americans' private information. However, [the FISA law] still clearly states that intelligence agents must obtain a court order to conduct electronic surveillance of Americans on these shores," said Barr.

"The federal government overstepped the protections of the Constitution and the plain language of FISA to eavesdrop on Americans' private communication without any judicial checks and without proof that they are involved in terrorism." Barr continued.

"The need to reform surveillance laws and practices adopted since 9/11 is more apparent now than ever," said the ACU's Keene. "No one would deny the government the power it needs to protect us all, but when that power poses a threat to the basic rights that make our nation unique, its exercise must be carefully monitored by Congress and the courts.

"This is not a partisan issue; it is an issue of safeguarding the fundamental freedoms of all Americans so that future administrations do not interpret our laws in ways that pose constitutional concerns," Keene added.

Threat to Gun Owners' Rights?

"If the law is not reformed, ordinary Americans' personal information could be swept into all-encompassing federal databases encroaching upon every aspect of their private lives," the Second Amendment Foundation's Gottlieb said.

"This is of particular concern to gun owners," Gottlieb continued, "whose rights guaranteed under the Second Amendment are currently being infringed upon under the Patriot Act's controversial record-search provisions."

Curiously, while the Second Amendment Foundation has spoken out, the nation's most powerful gun lobby, the National Rifle Association, has said nothing about the surveillance. A search of the NRA's Web site found no statements or articles about the either the NSA spying or the Patriot Act.

Hoover-Era FBI Abuses Recalled . . .

The Congressional Research Service report included 1970s-era quotations from congressional committees that were then uncovering years of domestic spying abuses by the FBI under then-Director J. Edgar Hoover against those suspected of communist sympathies, American Indians, Black Panthers and other activists, including Dr. Martin Luther King, Jr. and Malcolm X.

Lawmakers were very disturbed at how routinely FBI agents had listened in on U.S. citizens' phone calls without following any formal procedures under the bureau's notorious COINTELPRO counter-intelligence program that ran from 1956 until Hoover's death in 1971.

As they drafted FISA and created its court, the lawmakers warned then that only strong legislation, debated in public, could stop future administrations from eavesdropping without court approval. "This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties," the report said.

. . .But Nixon-Era Supreme Court Ruling Ignored

Yet incredibly, the report made no mention of a landmark 1972 decision by the Supreme Court, in which the justices unanimously declared unconstitutional the Nixon administration's practice of warrantless electronic surveillance of domestic radicals it considered dangerous to national security.

Ruling in a Michigan case stemming from the criminal prosecution of three men -- members of a radical anti-Vietnam War protest group -- charged with conspiracy to destroy government property, the justices declared, 8-0, that the Justice Department violated the Fourth Amendment's ban on unreasonable searches and seizures when it eavesdropped on the defendants' telephone conversations without first obtaining a warrant from a federal district court judge.

Justice Lewis Powell, a Nixon appointee, wrote the court's unanimous opinion in the case, Ubited States v. United States District Court for the Eastern District of Michigan, et al. {Case No. 70-153]: "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 judgment, 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."

The late Chief Justice William Rhenquist -- then a newly-appointed associate justice -- did not participate in the case, because he was not yet confirmed by the Senate when the court heard oral arguments in the fall of 1971.

The ruling -- handed down just two days after the infamous Watergate break-in on June 17, 1972 which led to the scandal that ultimately destroyed the Nixon presidency -- was front-page news in virtually every newspaper in the country, including The New York Times.

Yet when The Times broke the story about the NSA eavesdropping on December 16, the "newspaper of record" -- long considered by conservatives to be a "bastion of liberal bias" -- made no mention of the high court's decision.

Bush Action in Contempt of Supreme Court

Nor has any other so-called "liberal" media outlet, with the exception of Air America Radio, mention the Supreme Court's decision -- which this blogger first mentioned on December 19, just hours after President Bush insisted to reporters during a live press conference that he was acting within his constitutional authority when he ordered the National Security Agency, without prior FISA court approval, to eavesdrop on suspected terrorists on U.S. soil.

Asserting that it was "a necessary part of my job to protect" Americans from terrorist 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.

To address you directly, Mr. President -- and to be brutally frank -- you are not telling the American people the truth. You have claimed an authority that Congress did not give you and the Supreme Court long ago denied to your predecessors.

You have, in fact, not only violated the FISA statute by not obtaining the approval of the Foreign Intelligence Surveillance Court -- which the statute explicitly requires -- but you have also acted in clear contravention to the unanimous judgment of the nation's highest court that warrantless electronic surveillance violates the Fourth Amendment of the Constitution.

As far as this blogger is concerned, Mr. President, you have committed an abuse of executive power and authority and usurped the constitutional separation of powers between the executive, legislative and judicial branches of government.

Even worse, Mr. President, by ignoring, even defying, the Supreme Court's 1972 wiretap ruling, you have committed a criminal offense -- contempt of court -- that is punishable by your impeachment and removal from office by Congress and, after your removal, criminal prosecution in federal court.

A Pardon From Cheney? Forget It: Veep's Got His Own Problems

And unlike Richard Nixon, Mr. President, you won't be able to count on Dick Cheney issuing you a pardon -- Especially since Cheney is under a legal cloud himself with the CIA leak scandal.

Several U.S. senators have called on Special Counsel Patrick Fitzgerald to investigate Cheney and others if they authorized the vice president's former chief of staff, I. Lewis "Scooter" Libby, to give secret information to reporters.

Sen. Jack Reed (D-Rhode Island) called the leak of intelligence information "inappropriate" if it is true that unnamed "superiors" instructed Libby to divulge the material on Iraq. Sen. George Allen (R-Virginia) said a full investigation is necessary.

"I don't think anybody should be releasing classified information, period, whether in the Congress, executive branch or some underling in some bureaucracy," said Allen, who appeared with Reed on "Fox News Sunday."

According to court documents made public last week, Libby told a federal grand jury that he disclosed in July 2003 the contents of a classified National Intelligence Estimate as part of the Bush administration's defense of intelligence used to justify invading Iraq.

A President With a Serious Credibility Problem

Bush's insistence that he has the authority to conduct warrantless surveillance has no credibility, just as his insistence that he never met with disgraced lobbyist Jack Abramoff has no credibility.

Time magazine has now caught the president red-handed in a lie about Abramoff, publishing in its February 13 edition a photograph clearly showing Bush with Abramoff, at a meeting in the Eisenhower Executive Office Building adjacent to the White House on May 9, 2001.

The publication of the photo came amid a mushrooming scandal of influence-peddling in Washington, and threatened to raise fresh questions about Abramoff's link to the Bush administration.

Confronted with the photograph, White House spokesman Scott McClellan told Time the White House had "found no record of Abramoff's presence," but acknowledged that it is Abramoff in the picture.

Who are you trying to fool, Mr. McClellan? The White House has a far more sophisticated filing system now than it did when Nixon was president. Your claim that the White House has no record of Abramoff's presence with Bush is about as credible as Nixon's explanation of the so-called "accidental" 18 1/2-minute gap in one of the Watergate tapes.

The philosopher George Satarnaya is famous for saying that "Those who fail to learn from history are condemned to repeat it." It is now quite apparent that Bush & Co. has not learned from history.

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Volume I, Number 11
Copyright 2006, Skeeter Sanders. All rights reserved.


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READERS' FEEDBACK

From: John Long, Plattsburgh, N.Y.:

Skeeter,

It's funny to hear the left accuse our leaders of treason after they've done nothing but forment it [themselves] ever since the war started. That takes a lot of chutzpah, but hey, I've come to expect that from the 'Rats [Democrats].

When Abraham Lincoln suspended [the constitutional right of] habeas corpus during the Civil War, I don't remember any great push for impeachment.

When Theodore Roosevelt fought a no-holds barred war against Aguinaldo and the Phillipine "insurgents" [during the Filipino-American War of 1898-1904], there were no cries for impeachment.

When [Woodrow] Wilson's administration discriminated against Germans at home and conducted illegal arms shipments to the Allies during World War I -- then instituted mass deportations against communist and anarchist terrorists after the war -- there were no calls for impeachment.

When Franklin D. Roosevelt rounded up thousands of Japanese-American citizens during World War II, no one cried impeachment.

The common thread between all these points is that each one of these presidents did what they felt was needed to be done during a time of crisis.

When Bill (The [expletive deleted]) Clinton received campaign funds from the communist Chinese, or launched IRS audits on his political opponents, or steals thousands of dollars worth of White House items [when he and Hillary moved out of the White House], I never heard Republicans demand his impeachment then.

President Bush has done nothing that warrants impeachment. If the 'Rats ever take control of Congress -- which won't happen, despite the hype -- you may have a chance. But my advice to all who have tried for five years to take the man down is... When you start winning elections, then you can start calling the shots. Ginning up scandals won't cut it.

L88r, JL

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From: Tamara Williams, Chicago, Ill.:

Mr. Sanders:

I'm surprised that you posted that piece of right-wing [expletive deleted] by John Long. For that [expletive deleted] to say that Bush "has done nothing wrong to warrant impeachment" is to be totally out of touch with reality after you laid out a clear and rock-solid case against Bush.

Having said that, even if the Democrats take back control of Congress in next November's election (and if Long wants to talk about "'Rats," how about the Republicans in Congress who are abandoning ship like rats while the S.S. Bush is sinking?), the thought of Dick Cheney becoming president if Bush is impeached scares the [expletive deleted] out of me, since Cheney's the power behind Bush's throne. I think Bush picked Cheney as his vice president as insurance against his impeachment -- just as his father picked Dan Quayle to be his No. 2.

I can only hope and pray that Cheney goes down before Bush does.

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From: Charley Foster, Salt Lake City, Utah:

The reason we don't hear much about the Michigan case [that went to the Supreme Court] is that it is easily distinguished from the current facts. Michigan involved purely domestic parties.

The surveillance at issue here involves foreign intelligence - a well established exception to the 4th Amendment's warrant requirement. "[V]irtually every court that had addressed the issue had concluded that the President had the inherent power to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment." United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984). (See also, United States v. Clay, 430 F.2d 165 (5th Cir. 1970); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974); United States v. Truong, 629 F.2d 908 (4th Cir. 1980).

The location of the surveillance is irrelevant so long as the purpose is gathering foreign intelligence. The court in Truong approved the wiretapping and bugging of the defendant's house in the U.S.

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Skeeter Sanders replies: With all due respect, Mr. Foster, as you are an attorney, I do not accept your conclusion.

First of all, I must ask if any of the cases you cited in your comment have been upheld by the Supreme Court, since you mention only that they were decided in the various circuit courts of appeal. It's the Supreme Court that would have the last word -- and I do not recall the justices carving out such an exception for U.S. citizens.

Second, even if the high court did carve out such an exception -- which I don't, to the best of my knowledge, believe it did -- Congress firmly slammed shut that loophole when it passed the Foreign Intelligence Surveillance Act. FISA explicitly requires the executive branch to obtain prior judicial approval for national security surveillance -- and contrary to your conclusion, FISA is fully consistent with the Fourth Amendment.

Indeed, Congress acted well within its constitutional authority to enforce the Fourth Amendment "through appropriate legislation" when it passed FISA in 1978. No president since then, from Jimmy Carter to George W. Bush, has ever even attempted to challenge FISA in court.

That the Bush administration has violated FISA -- and, by extension, the Fourth Amendment -- is, therefore, indisputable. The administration has no statutory or constitutional right to spy on U.S. citizens -- I repeat, U.S. citizens -- without prior judicial approval, period -- whether in peacetime or in wartime (And, lest we forget, Congress -- which has the sole constitutional authority to do so -- has not issued a formal declaration of war since 1941).

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