Report Rebuts Bush on Spying - Domestic Action's Legality Challenged

[DealMonkey]

This is exactly what I've been saying all along -- Bush and his team of lawyers pushing of the legal envelope and attempted expansion of executive power rests on shaky ground. If the domestic spying as authorized by Bush is found to be illegal based on current law, Bush will find himself in a world of hurt.

No one in this country is above the law, including the President.

Report Rebuts Bush on Spying
Domestic Action's Legality Challenged

By Carol D. Leonnig
Washington Post Staff Writer
Saturday, January 7, 2006; Page A01

A report by Congress's research arm concluded yesterday that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments.

The Congressional Research Service's report rebuts the central assertions made recently by Bush and Attorney General Alberto R. Gonzales about the president's authority to order secret intercepts of telephone and e-mail exchanges between people inside the United States and their contacts abroad.

The findings, the first nonpartisan assessment of the program's legality to date, prompted Democratic lawmakers and civil liberties advocates to repeat calls yesterday for Congress to conduct hearings on the monitoring program and attempt to halt it.

The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.

The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

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

Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, has pledged to hold hearings on the program, which was first revealed in news accounts last month, and the judges of the FISA court have demanded a classified briefing about the program, which is scheduled for Monday.

"This report contradicts the president's claim that his spying on Americans was legal," said Sen. Frank Lautenberg (D-N.J.), 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."

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. A spokesman for the National Security Agency was not available for a comment yesterday.

Other administration officials, who spoke on the condition of anonymity, said the CRS reached some erroneous legal conclusions, erring on the side of a narrow interpretation of what constitutes military force and when the president can exercise his war powers.

Bush has said that he has broad powers in times of war and must exercise them to target not only "enemies across the world" but also "terrorists here at home." The administration has argued, starting in 2002 briefs to the FISA court, that the "war on terror" is global and indefinite, effectively removing the limits of wartime authority -- traditionally the times and places of imminent or actual battle.

Some law professors have been skeptical of the president's assertions, and several said yesterday that the report's conclusions were expected. "Ultimately, the administration's position is not persuasive," said Carl W. Tobias, a University of Richmond law professor and an expert on constitutional law. "Congress has made it pretty clear it has legislated pretty comprehensively on this issue with FISA," he said, referring to the Foreign Intelligence Surveillance Act. "And there begins to be a pattern of unilateral executive decision making. Time and again, there's the executive acting alone without consulting the courts or Congress."

Marc Rotenberg, executive director of the Electronic Privacy Information Center, said the report makes it clear that Congress has exerted power over domestic surveillance. He urged Congress to address what he called the president's abuse of citizens' privacy rights and the larger issue of presidential power.

"These are absolutely central questions in American government: What exactly are the authorities vested in the president, and is he complying with the law?" Rotenberg said.

The report includes 1970s-era quotations from congressional committees that were then uncovering years of domestic spying abuses by J. Edgar Hoover's FBI against those suspected of communist sympathies, American Indians, Black Panthers and other activists. Lawmakers were very disturbed at how routinely FBI agents had listened in on U.S. citizens' phone calls without following any formal procedures. 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.

"This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties," they wrote. The lawmakers noted that Congress's intelligence committees could provide some checks and balances to protect privacy rights but that their power was limited in the face of an administration arguing that intelligence decisions must remain top secret.

Linkage

 

[Hayabusa Rider]

Question.

Who would arrest Bush if he doesn't want to be arrested?

It isn't a stretch of the imagination to see him issuing an executive order making himself immune to arrest for actions carried out during times of war.

 

[Darkhawk28]

Originally posted by: Hayabusa Rider
Question.

Who would arrest Bush if he doesn't want to be arrested?

It isn't a stretch of the imagination to see him issuing an executive order making himself immune to arrest for actions carried out during times of war.

Someone spot me a plane ticket.

 

[catnap1972]

Originally posted by: Hayabusa Rider
Question.

Who would arrest Bush if he doesn't want to be arrested?

It isn't a stretch of the imagination to see him issuing an executive order making himself immune to arrest for actions carried out during times of war.

Can he legally appoint himself permanent president?

 

[conjur]

Repost
http://forums.anandtech.com/messageview...atid=52&threadid=1775051&enterthread=y

 

[arsbanned]

Originally posted by: catnap1972

Originally posted by: Hayabusa Rider
Question.

Who would arrest Bush if he doesn't want to be arrested?

It isn't a stretch of the imagination to see him issuing an executive order making himself immune to arrest for actions carried out during times of war.

Can he legally appoint himself permanent president?

I fully expect some sort of move in this direction. People just don't seem to comprehend how dangerous these people are.

 

[Ordy]

I think some of you may have watched the Star Wars Episode III DVD you got for Christmas a bit too much. Next I'll hear about GWB shooting blue lightning out of his fingertips. I don't like the current administration either but this post is getting a little scary.

 

[Meuge]

Originally posted by: Ordy
I think some of you may have watched the Star Wars Episode III DVD you got for Christmas a bit too much. Next I'll hear about GWB shooting blue lightning out of his fingertips. I don't like the current administration either but this post is getting a little scary.

It's only a slippery slope all the way until you hit the bottom.

 

[BBond]

Originally posted by: conjur
Repost
http://forums.anandtech.com/messageview...atid=52&threadid=1775051&enterthread=y

Repost of a repost.

http://forums.anandtech.com/messageview...did=1758968&STARTPAGE=29&enterthread=y

01/07/2006 02:30 AM
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BBond
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The first of what will hopefully be many Congressional investigations into the illegal clandestine totalitarian USSR-like Bush/NSA spy scandal is in and it is NOT good for Bush boy.

It's high time these people are stopped while we still have a democracy left to save.

Basis for Spying in U.S. Is Doubted

By ERIC LICHTBLAU and SCOTT SHANE

quote:
WASHINGTON, Jan. 6 - President Bush's rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a Congressional analysis released Friday.

The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Mr. Bush act within the law when he ordered the National Security Agency, the country's most secretive spy agency, to eavesdrop on some Americans?

The report, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous doubts about the power to bypass Congress in ordering such operations, saying the legal rationale "does not seem to be as well grounded" as the administration's lawyers have argued.

The administration quickly disputed several conclusions in the report.

The report was particularly critical of a central administration justification for the program, that Congress had effectively approved such eavesdropping soon after the Sept. 11, 2001, attacks by authorizing "all necessary and appropriate force" against the terrorist groups responsible. Congress "does not appear to have authorized or acquiesced in such surveillance," the report said, adding that the administration reading of some provisions of federal wiretap law could render them "meaningless."

The president acknowledged last month that he had given the security agency the power to eavesdrop on the international telephone and e-mail communications of Americans and others in the United States without a warrant if they were suspected of ties to Al Qaeda.

The Justice Department is investigating the disclosure of the program, first reported in The New York Times. With Congressional hearings expected this month, the Congressional research report intensified debate on the program. Administration lawyers quickly responded that Mr. Bush had acted within his constitutional and statutory powers.

"The president has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks," said Brian Roehrkasse, a Justice Department spokesman, adding that the program represented "a critical tool in the war on terror that saves lives and protects civil liberties at the same time."

Many Democrats and some Republicans pointed to the findings as perhaps the strongest indication that Mr. Bush might have exceeded his authority in fighting terrorism.

Representative George Miller, Democrat of California, who leads the House Democratic Policy Committee, said the report "raises serious questions about the president's legal authority to conduct domestic spying."

Mr. Miller said the justifications for the program were unacceptable.

Senator Dianne Feinstein, Democrat of California, said the report made "absolutely clear that the legal authorities advanced by the president in justifying domestic surveillance are on very shaky ground."

Thomas H. Kean, a Republican who was chairman of the Sept. 11 commission, weighed in for the first time in the debate. Mr. Kean said he counted himself among those who doubted the legality of the program. He said in an interview that the administration did not inform his commission about the program and that he wished it had.

The Foreign Intelligence Surveillance Act, which Congress passed in 1978 after widespread abuses by intelligence agencies, created a system for court-ordered wiretaps for terrorism and espionage suspects. That system "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," Mr. Kean said.

"We live by a system of checks and balances," he said. "And I think we ought to continue to live by a system of checks and balances."

One reason the administration has cited for not seeking to change the intelligence law and obtain specific approvals for eavesdropping was that it might "tip off" terrorists to the program. The Congressional research service found that unconvincing.

"No legal precedent appears to have been presented," the study said, "that would support the president's authority to bypass the statutory route when legislation is required" simply because of secrecy.

Opinions on domestic spying have largely broken down, though not exclusively, along partisan lines, causing splits between the top Republicans and Democrats on the House and Senate Intelligence Committees.

The analyses of the Congressional Research Service, part of the Library of Congress created in 1914, are generally seen as objective and without partisan taint, said Eleanor Hill, staff director of the Congressional inquiry on the Sept. 11 attacks.

Because of its importance, the report was repeatedly reviewed by senior staff members at the research service for accuracy and bias before its release, officials there said.

Some Democrats say the administration bypassed the authority of Congress in ordering the eavesdropping. One congressman said he was actively misled. In a letter released Friday, Representative Rush D. Holt, a New Jersey Democrat on the Intelligence Committee, complained to the N.S.A. over what he described as deception by its director, Lt. Gen. Keith B. Alexander of the Army.

Mr. Holt, a physicist who has worked as an arms control specialist at the State Department, visited the agency on Dec. 6 for a briefing by General Alexander and agency lawyers about protecting Americans' privacy. The officials assured him, Mr. Holt said, that the agency singled out Americans for eavesdropping only under warrants from the Foreign Intelligence Surveillance Court.

After the program was disclosed, Mr. Holt wrote a blistering letter to General Alexander, expressing "considerable anger" over being misled. An agency spokesman, Don Weber, declined to comment on the letter.

 

[Rainsford]

Originally posted by: Ordy
I think some of you may have watched the Star Wars Episode III DVD you got for Christmas a bit too much. Next I'll hear about GWB shooting blue lightning out of his fingertips. I don't like the current administration either but this post is getting a little scary.

I'm not into conspiracy theories and imaginary modern day Emperors...but remember, that kind of thing HAS happened in real life, and it always starts somewhere. You don't just suddenly wake up one day and find you're living in a dictatorial police state, it happens so slowly you don't notice it.

Now of course that doesn't mean we need to start looking for the Death Star plans any time soon, I'm just saying that things like that aren't beyond the realm of possibility.

 

[trenchfoot]

i don't think bush despises the intent of the laws he's breaking. moreso, he despises the idea that if he follows the law he can't keep what he and his crew is doing a secret from anyone outside his inner circle.
my guess is if he had corrupted the FISA court to his liking like he's done to other agencies, he'd definetly use that to his advantage and all would be well in this regard.

*edit*-grammar

 

[shira]

Originally posted by: arsbanned

Originally posted by: catnap1972

Originally posted by: Hayabusa Rider
Question.

Who would arrest Bush if he doesn't want to be arrested?

It isn't a stretch of the imagination to see him issuing an executive order making himself immune to arrest for actions carried out during times of war.

Can he legally appoint himself permanent president?

I fully expect some sort of move in this direction. People just don't seem to comprehend how dangerous these people are.

According to John Woo's Justice Department memos (which the Administration accepts as gospel), the President - in his role as Commander in Chief - cannot be controlled by Congress, the courts, or even the Constitution. Woo claims that the President has the power to suspend sections of the Constitution, presumably including those that define the terms for electing a President every four years. Thus, Bush could effectively annoint himself President for life (or for however long he deemed a state of emergency to exist).

And he could do this with impunity, since he could also suspend the Constitutional provisions for impeachment. Failing that, facing widespread rebellion in Congress (and more importantly, within the military establishment), would-be King Bush could give himself and all his cronies pardons for all of their gross violations of the law.

 

[BBond]

Here's a column from a conservative editorial writer from New Jersey's Star-Ledger that makes some very salient points about Bush and his idea of what being a "conservative" and "Repulican" really are.

Please keep in mind, the writer has been a conservative from birth.

Bush a conservative? No way, Jose!

Sunday, January 08, 2006

There's an old joke about a guy at a party who asks a woman, "Would you go to bed with me for a million dollars?"

"I suppose so," the woman replies.

"Well, would you go to bed with me for 50 dollars?" the guy asks.

"Certainly not," she says. "What kind of woman do you take me for?"

"We've already established that," says the wag. "We're just negotiating the price."

That in a nutshell represents the attitude of conservatives toward government. We've already established that it will do all sorts of ghastly and unspeakable deeds. The question is how easily it may be provoked.

I thought of that joke last week when I was talking with Andrew Napolitano. Napolitano is part of a triumvirate of great Italian-American legal minds from New Jersey, the other two being Supreme Court Justice Antonin Scalia and soon-to-be Supreme Court Justice (one hopes) Samuel Alito.

Napolitano occupies a slightly less lofty perch. He is the legal analyst for Fox News. In that position he has always shown a great skepticism toward the power of government, particularly the federal government.

Such skepticism was always seen as the essence of conservatism in the Clinton era. But now some misguided souls perceive any criticism of the federal government as liberal.

Among them are the editorial writers of the Wall Street Journal, perhaps the leading exponents of the neoconservative heresy. The Journal weighed in last week on the case of Jose Padilla, an American citizen who was held in military detention since 2002 before finally being turned over to civilian authorities and charged with a crime last week.

"Over the past three and a half years, Padilla has become a liberal icon -- an 'innocent' man who has been held 'illegally,'" they wrote.

I found this curious in that the most outspoken critic of the government's handling of the Padilla case has been none other than Napolitano, who has been a right- winger since the days of disco.

My brother, who was pals with him at Notre Dame Law School, recalls Napolitano espousing beliefs that were considered almost incredible in that ultra-liberal era. He's pro-gun, pro-life and a church- going Catholic.

"Padilla is not a liberal icon. He is a constitutional icon," said Napolitano when I got him on the phone last week. "He has come to stand for the lawlessness with which the current administration will fight the war on terror."

There's nothing liberal about contending Padilla is innocent, Napolitano notes. We're all innocent until proven guilty.

Napolitano told me he has great fun debating these issues with the other Fox TV personalities.

"I said to Bill O'Reilly that the same theory could be used by a president John Kerry to lock up Bill O'Reilly," he said.

True enough. Though Padilla does indeed seem to be a scoundrel of the worst order, once we establish the principle that the president can grab a citizen and hold him incommunicado indefinitely, we have to ponder what some Democrat might do with that power.

"I tell these people, 'You guys are so happy to give all this power to George Bush. Would you give it to his successor if she has the same name as his predecessor?'"

Hillary without habeas corpus? Yikes!

The idea of the PATRIOT Act in liberal hands is equally frightening. How long before the warrantless searches and wiretaps of gun owners and anti-abortion groups begin?

"The thesis of the Bush administration is, 'Give us our freedoms and we will make you safer,'" Napolitano said. "That has never worked in history."

Napolitano developed his extreme skepticism about government during eight years as a superior court judge in Bergen County. In his book "Constitutional Chaos" he describes how he watched as prosecutors and police continually fudged key aspects of cases to win convictions.

"They spent all their time arguing why the constitution should be avoided and debated rather than observed," he said.

We're now seeing that same debate on the national scale as President Bush and Co. seek ever-expanding powers.

"This crowd are not conservatives," Napolitano said. "They're just big-government Republicans. They are prepared to crush the individual to exalt the state. They don't believe freedom comes from the individual. They believe freedom comes from the government."

This may derive from the fact that one gets a better grounding in the classics by studying hard at Catholic school as opposed to, say, cheerleading at Andover. Napolitano said his views on limited government derive from the theory of natural law as developed by Thomas Aquinas. Government cannot provide rights but it sure can take them away in a hurry.

The typical inside-the-Beltway Republican, meanwhile, can barely be said to have a theory of rights at all.

If Bush were to declare tomorrow that all his critics needed to be hauled off to the hoosegow as part of the war on terror, the talking heads of Fox News would nod in approval. The Wall Street Journal would declare it good for the stock market.

Napolitano, at least, would say, "I told you so."

Paul Mulshine is a Star-Ledger columnist.