Monday, August 21, 2006

History Repeats Itself With Court Decision Against Warrantless NSA Surveillance Program

Ruling Was Made By the Same Court that Struck Down Nixon's Warrantless Wiretaps in 1971

PLUS: Breaking a Decades-Long Silence on the Mideast Conflict

By Skeeter Sanders

One of the surest signs that you're getting old is that you find yourself observing history repeating itself. Last Thursday saw yet another example of history repeating itself before this aging blogger's very eyes.

A federal judge issued a sweeping decision striking down as unconstitutional the Bush administration's highly controversial warrantless surveillance program, ruling that it violated both the Fourth Amendment's ban on unreasonable searches and seizures and the 1978 Foreign Intelligence Surveillance Act.

At the risk of saying "I told you so," that is precisely what this blogger has been arguing repeatedly since December, when the program was first revealed by The New York Times (For background, check the 'SBR archives for "Bush Dead Wrong on NSA Surveillance," December 19, 2005; "Bush to Americans: You Have No Privacy," January 22, 2006; "Evidence Mounts that Bush Broke Law with NSA Wiretap Program," February 12, 2006; and "Big Brother is -- Illegally -- Watching You More Extensively than Previously Thought," May 21, 2006).

But U.S. District Court Judge Anna Diggs Taylor didn't stop there. She also ruled that the program, conducted by the super-secret National Security Agency, also violated the First Amendment by making it harder for journalists, researchers and lawyers (not to mention bloggers) to do their jobs when communicating with their overseas contacts.

And she declared that by not seeking warrants from the Foreign Intelligence Surveillance Court prior to proceeding with the eavesdropping, the administration violated the clear will of Congress, as expressed by the FISA law -- a breach of the constitutional separation of powers between the executive, legislative and judicial branches of government.

Suddenly, It's 1971 All Over Again

Talk about having a feeling of deja vu. It's impossible for this blogger, fiftysomething Baby Boomer that I am, to look at this ruling and not take notice of the fact that Judge Taylor sits on the Detroit-based U.S. District Court for the Eastern District of Michigan.

This is the same court that, 36 years earlier, struck down a very similar warrantless electronic surveillance program implemented by the Nixon administration against radical domestic opponents of the Vietnam War.

It's also impossible for this blogger to avoid taking note of the fact that Attorney General Alberto Gonzales already has appealed Judge Taylor's ruling to the Sixth U.S. Circuit Court of Appeals in Cincinnati.

Well, guess what? Nixon's attorney general, John Mitchell, appealed the district court's 1971 ruling to that very same appeals court in Cincinnati -- and lost. Mitchell then appealed to the Supreme Court and on June 16, 1972 -- the eve of the infamous Watergate break-in -- the nation's highest court unanimously upheld the lower courts' rulings.

By now, it should be obvious that this administration has not done its legal homework. Nor has it learned anything from recent history. Gonzales is making the exact same arguments on the "inherent authority of the president" on matters of national security that his predecessor Mitchell made more than three-and-a-half decades ago.

The courts resoundingly rejected those arguments then. And there's no reason to believe that the courts won't resoundingly reject those arguments now.

"War On Terror" No Excuse for Going Beyond the Constitution

"The very real threat posed by radical Islamists requires every tool at our disposal, including the ability to track the financial activity and the communications of terrorists," said Rep. Peter Hoekstra (R-Michigan), chairman of the House Intelligence Committee.

The need for the nation to use every available means to safeguard itself from terrorists is beyond dispute, Mr. Hoekstra. But the fact that the United States is at war with terrorists does not give the administration carte blanche to act against terrorists in a manner that is beyond what the Constitution allows.

And that is precisely what the Bush administration has done with its warrantless NSA surveillance program.

The administration violated the Fourth Amendment of the Constitution when it did not seek the required warrants from the Foreign Intelligence Surveillance Court prior to implementing the program. Had the administration done so, there would not be the huge controversy that is currently raging.

Only three times in its 28-year history has the FISA court rejected a request for warrants, so this blogger cannot understand why the administration did not seek the warrants before going ahead with the eavesdropping.

(In all three of those cases, the FISA court rejected requests for warrants to tap the telephone and Internet communications of journalists, on clear First Amendment free-press grounds.)

Indeed, by not going to the FISA court first, the administration not only violated the Constitution, it also defied the will of Congress, which passed the FISA statute in 1978 under its clear constitutional authority to enforce the Fourth Amendment "through appropriate legislation."

The FISA statute explicitly requires the administration to obtain warrants from the FISA court before implementing the surveillance.

Bush Disregards the Founding Fathers

The Founding Fathers, having broken free from the tyrannical King George III, made it clear that the new country they created would not be governed by a home-grown tyrant. So in writing the Constitution, the Founding Fathers established a system of checks and balances between the executive, judicial and legislative branches specifically to prevent any one branch from becoming all-powerful.

That the Bush administration has chosen to disregard the will of the Founding Fathers and claim an "inherent authority" in wartime that Congress has not given it and the Constitution clearly denies it is astounding.

As Judge Taylor noted in her 44-page ruling, "It was never the intent of the Framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights."

Supreme Court Will Have the Last Word

The Supreme Court, in its 1972 ruling against the Nixon administration's warrantless eavesdropping program, was equally clear: "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," Justice Lewis Powell wrote for the court.

"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 continued. "The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion my yield too readily to pressure to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

Inevitably, the warrantless NSA surveillance issue will end up at the Supreme Court. Given the fact that the high court's 1972 decision was unanimous -- and that the justices have already ruled against the administration on the treatment of "enemy combatants" at Guantanamo Bay, Cuba -- I wouldn't bet the farm that the White House will win this case, either.

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MIDEAST CONFLICT: Breaking a Decades-Long Silence

For almost 40 years, this blogger has steadfastly maintained a stone-cold public silence about the decades-long conflict between Israel and its Arab neighbors, refusing to make any public comment, one way or the other.

The reasons for my long silence are two-fold:

First, this conflict has really gone on for far longer than any of us have been alive -- 3,000 years, truth be told, ever since the exodus of the ancient Hebrews from slavery in Egypt into what was then Canaan (Now the Palestinian Territories). And it's a conflict that will likely continue long after all of us have passed away.

Second, I am of mixed African American and Native American descent, who grew up in New York City, home to the largest Jewish community in the world outside of Israel itself. While blacks and Jews have historically been allies in the struggle for civil rights, that alliance was effectively destroyed in the late 1970s by a bitter rift between the two communities over affirmative action.

It became all but impossible for blacks and Jews to criticize each other without being branded anti-Semitic or racist, respectively. Violence between blacks and Jews in the Crown Heights neighborhood of Brooklyn in the early '80s only made matters worse.

So when it came to the Arab-Israeli conflict, I've kept my mouth firmly shut, fearing that anything I'd say would get me either branded an "anti-Semite" or an "Uncle Tom." After almost four decades, dating back to the Six-Day War of 1967, I can be silent no longer.

War in Lebanon: Israel's Vietnam?

There can be no doubt that the Islamic militant group Hezbollah started the latest war in Lebanon when its guerrillas crossed the border into Israel and kidnapped two Israeli Army soldiers.

Their intent was pretty obvious: To draw Israel's attention away from its military actions in Gaza in retaliation for the kidnapping of a third Israeli soldier by Palestinian militants. Hezbollah knew that the Israelis would retaliate. But they clearly underestimated how ferociously the Israelis would respond.

The Israelis, for their part, underestimated how powerful Hezbollah had become in the almost 15 years since Israel withdrew its forces from Lebanon after its 1982 invasion. The result was the longest and costliest war Israel has fought since its founding in 1948.

For the first time, the Israelis failed to utterly defeat an enemy, instead battling Hezbollah to a stalemate. Also for the first time, Israel was bombarded by literally thousands of Hezbollah missiles, with many striking as far south as Haifa, Israel's third largest city.

Also, unlike its previous wars, Israel wasn't battling a state or a people seeking to establish a state. This time, Israel was at war with a stateless, predominantly Shiite movement of Muslim militants, heavily financed and armed by Iran.

History has shown time and again that no nation can successfully fight a war against an army of determined religious-zealot guerrillas by using conventional military means. The Americans learned that lesson the hard way in Vietnam and are learning it again in Iraq. The Russians likewise learned that lesson in Afghanistan and now in Chechnya.

The current cessation of hostilities in Lebanon is, as, I see it, only a temporary pause. Sooner or later, hostilities will flare up again. The Israelis, having failed to meet their objectives of recovering their kidnapped soldiers and destroying Hezbollah's ability to attack Israeli cities, are now confronted with the very real possibility of a long, drawn-out conflict in Lebanon.

Already, Israeli warplanes roared over Lebanon's northern Mediterranean coast and along its border with Syria today (Monday), a day after the Lebanese defense minister warned rogue Palestinian rocket teams against attacking Israel and provoking retaliation that could unravel the already shaky cease-fire.

The aerial missions also came a day after Israeli commandos launched a lightning raid in Lebanon's Bekaa Valley, sparking angry protests by the Lebanese government.

With bitter memories of their country's ill-fated 1982 invasion of Lebanon seared into their collective memory, the Israelis are now wondering if Lebanon will become their Vietnam. The fact that Hezbollah was able to withstand the Israeli barrage with its leadership -- and pride -- intact was a tremendous psychological boost to Islamic militants around the world.

And it poses the very real danger that the world is one step closer to its third truly global war.

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Volume I, Number 38
Copyright 2006, Skeeter Sanders. All rights reserved.


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