Even as PT neocon regular RichardCranial tries to convince himself that President Bush was within the bounds of the law when he authorized electronic surveillance of US citizens ostensibly to enhance the national security, George Bush was preparing an announcement that he is committed to his felonious ways and is proud of it. But many in Congress aren’t so pompous, including Pennsylvania Republican Senator Arlen Specter, Chairman of the Senate Committee on the Judiciary, who characterized Bush’s actions as “inappropriate," and vowed to make the matter a top priority for a thorough investigation come January 2006. You've really gotta hand it to George; he certainly knows how to throw a GOParty to ring in the New Year, huh? So RichardCranial, if you can stomach the truth, read on.
President George W. Bush admitted on 17 Dec 05 that he personally authorized the National Security Agency (NSA) to conduct clandestine information collection on citizens of the United States who were determined by the NSA and the Justice Department to be “dangerous to US national security.” This story was made public in a New York Times article printed one year subsequent to reporters learning of the some 30 authorization to spy on approximately 500 US citizens, and consequent to Bush pleading with the reporters to snuff the truth. The President has made it clear that “no laws were broken.” Moreover, Bush is justifying his actions by claiming the eavesdropping go-ahead has “helped detect and prevent possible terrorist attacks in the United States and abroad,” and that publishing the NY Times article was irresponsible and has jeopardized his administration’s efforts to “fight the war on terror and safeguard national security.” The President went on to defend his actions in a Roosevelt Room speech on 18 Dec 05 stating that “the American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I'm the president of the United States." Critics from both ends of the political spectrum are asking “what laws.” I would argue that, despite the President’s claims to the contrary, it is clear he has violated the laws of the United States, namely the Foreign Intelligence Surveillance Act (FISA) of 1978, which is codified under Title 50, United States Code (USC), Chapter 36, and its codicils. Bush has also violated the Patriot Act.
BEFORE FISA
Let me be succinct; nobody is making an argument that our national leaders should sit idly by while would-be terrorists plot and execute nasty acts against the population and/or plan the violent overthrow of the US Government – that is simply a Bushite lie designed to divert attention and muddy the waters in an effort to exonerate the President. But we do expect them to follow the law. In fact, the courts and the Congress have consistently sided with the Executive Branch in its efforts to defend the nation against harm perpetrated domestically or otherwise, but within reason and within the parameters of the law. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that petitioner Katz was entitled to Fourth Amendment protection for his illegal telephone conversations even though the conversations were on a public pay phone and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. "The Fourth Amendment protects people, not places," wrote Justice Potter Stewart in delivering the opinion of the Court. The precedent in Katz is simple: The Government will not hide behind law enforcement to justify wonton invasion of privacy. In Berger v. New York, 388 U.S. 41, 50 (1967), the Court opined that "by its very nature eavesdropping involves an intrusion on privacy that is broad in scope," and that "few threats to liberty exist which are greater than those posed by the use of eavesdropping devices." In United States v. U.S. District Court, 407 U.S. 297 (1972), Justice Powell wrote that "waiving the Fourth Amendment probable cause requirement could lead the executive to yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech” and that “the inconvenience to the government is justified in a free society to protect constitutional values." Based on the High Court’s steadfast reluctance to allow the Government unbridled erosion of the Fourth Amendment, and upon the plethora of Nixon-era eavesdropping authorizations aimed at everything from the activities of Vietnam War demonstrators to the Democratic National Committee, Congress sought to temper the need to conduct intelligence gathering with the Constitutional guarantees of the Fourth Amendment. FISA is the fruit of that effort.
THE LAW: FISA AND THE PATRIOT ACT
The Legislature’s intention in FISA was not to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States, but was designed precisely to curb the kind of unfettered abuse of Fourth Amendment privilege President Bush arrogantly espouses and authorizes. Pursuant to FISA, the President and any of his subordinates must adhere to specific, well-defined guidelines when authorizing electronic espionage on foreign powers to collect Foreign Intelligence Information (FII) as defined in Subchapter I, §1801, Paragraph (a). The Government may engage in electronic surveillance to collect FII without a court order for periods up to one year as laid out in Subchapter I, §1802, at (a)(1)(B), however, there must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. Furthermore, FISA expressly states in Subchapter I, §1811 “notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” Since Congress did not declare war, §1811 is moot. Finally, there is the question of secrecy. FISA establishes “FISA Courts” with their own judges and jurisdiction to issue “secret” warrants for FII collection, the key word here being “FII.” There is no clause in FISA, implied or stated, that permits any government authority to conduct a warrantless search of a US citizen. Bush stipulates the efficacy of his war on domestic terrorism is contingent upon such warrantless searches. There is no doubt that domestic wiretapping may be a matter of national security; however, both FISA and the Patriot Act - THE LAW - require court ordered warrants for clandestine collection of electronic and physical evidence. FISA even permits a 72 hour "grace" period where the warrant can be obtained after-the-fact. Bush signed the Patriot Act into law - if he disagreed with any provision mandating third party scrutiny, he should have vetoed the bill - that's how the process works! It is important to remember the President vetos bills, not laws! Given Bush's record of thwarting legal precedence and thumbing his nose at the legal process, it is crystal clear that the President not only ignored the law when he ordered warrantless espionage on US citizens - he conspired to ignore the law. Congress and President Carter were mindful of how secrecy had been used to mask unlawful surveillance activity in the Nixon administration and mandated that every secret FISA warrant have as its primary purpose the collection of FII to frustrate those kinds of abuses. For example, a FISA judge cannot honor a Justice Department request to conduct clandestine surveillance on a potential beer heist at a local convenience store – that’s a matter of law enforcement, not national security. The FISA threshold is a high hurdle by design.
The Patriot Act does not change the requirement for a court ordered warrant for the Government to conduct covert surveillance operations on US citizens. The Patriot Act diminishes the level of justification the Government must bear to secure the warrant – from the Fourth Amendment requirement of “probable cause” to the less stringent “ex parte” context where a FISA judge may approve domestic wiretapping based solely upon the evidence presented by the Government -- the subject of the wiretap is not afforded the opportunity to rebut the request. This maintains the integrity of the secrecy requirement and provides civil rights protections. The right of the Government to secure ex parte orders heightens the potential for abuse, as the justification for issuance may rest upon scant suspicions rather than hard evidence; however, in striking a balance between Fourth Amendment probable cause precedent and the need to safeguard the nation from domestic terror, Congress chose to err on the side of caution and lower the evidentiary hurdle. What Bush needs to remember is that the 4th, 5th, and 14th Amendments are still intact and are still the law of the land despite his contention that the Constitution is "just a goddamn piece of paper." Neither FISA nor the Patriot Act negates those Amendments. President Bush’s authorization for spying on US Citizens clearly violates not only the applicable Constitutional protections, but flies against FISA and the Patriot Act as well. By circumventing the established process, Bush has clearly violated the law, and in a big way!
As to my point; FISA goes to great pains to delineate between foreign and domestic surveillance -- in a reverse psychology sort of way -- by NOT addressing domestic spying! And by not addressing how the Government may conduct espionage on US citizens, we can only surmise Congress was satisfied that existing law was adequate to prosecute cases against US citizens engaged in terrorism. We can’t assume our elected representatives didn’t include domestic spying in FISA because they forgot to or because they found the issue unimportant. In the aftermath of the 9/11 attacks, Congress and the President specifically addressed the topic of domestic terrorism by enacting the Patriot Act; however, even the Patriot Act, despite its tyrannical overtones, incorporated our revered system of checks and balances to curtail abuse. And as the Bush administration has demonstrated time and again, it is ready and willing to place itself above even the laws it pushed through Congress, and to violate the law by shamefully using fear to garner public support -- and then only after the illegal act is divulged in a widely read newspaper. This latest Bush-inspired pogrom on liberty begs the question - what other covert improprieties has the Bush administration championed in the name of national defense?
It would behoove our neocon friends to devote less time to apologizing and fabricating excuses for Bush's malfeasances and to stand down from their defensive postures and examine what we liberals see every day: A despotic, unprincipled President with no respect for national traditions, no respect for human dignity, and obviously not one iota of respect for the law. George Bush and his fascist milieu are dangerous people – they are dangerous to life, liberty, and the pursuit of happiness – they are a clear and present danger to democracy - and they delight in bringing fear, death, and destruction to all they touch. You neocons chide us liberals with "what is there not to like about what this President does?" Let us count the ways, but you'd better remove your shoes and socks - you're going to need those toes!
Vacreeper2003
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