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Banned
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It's Time !
In December, 2005, John Dean wrote that a sitting president had admitted committing an "impeachable offense". Today., a three judge appellate confirms that Dean was correct. The first news report to "hit" Google news, spun the court ruling in the opposite way....but Judge Batchelor's opinion in the Sixth District's ruling today, is quite clear.
Could it be more clear that the ruling states that Bush violated the FISA law? Did Bush publicly admit to doing so? Is this a serious enough violation, especially considering Bush's open admission, and the clear examples to back Judge Batchelor's majority decision, to begin hearings to impeach Bush for breaking the FISA law.
I think that it is. It is also a test for this congress. This is the highest court ruling that they can expect to receive, on a matter of open and admitted lawbreaking at the felony level, by president Bush.
Quote:
http://alaskareport.com/news/z46324_wiretapping.htm
Bush appointed appeals court tosses domestic spying lawsuit
July 6, 2007
Washington, DC - A Republican slanted federal appeals court on Friday ordered the dismissal of a pending ACLU lawsuit challenging President Bush's domestic spying program, saying the plaintiffs had no standing to sue.
A Republican slanted federal appeals court on Friday ordered the dismissal of a pending ACLU lawsuit challenging President Bush's domestic spying program, saying the plaintiffs had no standing to sue.
In a 2-1 vote, two Bush appointees of the 6th U.S. Circuit Court of Appeals in Cincinnati concluded a coalition of journalists, scholars, and legal advocates had no legal "standing" to pursue their claims, since they have not been able to show they may have been personally targeted by the National Security Agency's (NSA) warrantless spying program, which was designed to monitor domestic terrorist activity.
A Democratic appointee judge disagreed, saying it was clear to him that the post-9/11 warrantless surveillance program aimed at uncovering terrorist activity violated the Foreign Intelligence Surveillance Act of 1978.
The Justice Department argued it had constitutional protection under the state secrets privilege.
"The plaintiffs have not shown that they were actually the target of, or subject to, the NSA's surveillance," wrote Judge Alice Batchelder. "They cannot establish they are 'aggrieved persons.'"
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Quote:
http://www.tpmmuckraker.com/archives/003615.php
Breaking: Judge Finds Warrantless Surveillance Illegal -- But Still Sides With Gov't
By Spencer Ackerman - July 6, 2007, 11:03 AM
So much for the ACLU's suit against the National Security Agency over the NSA's warrantless surveillance program. Last year, Judge Anna Diggs Taylor of the Eastern District of Michigan ordered an injunction against the NSA program, an action crucial to the Justice Department's January announcement that the Bush administration would get out of the warrantless wiretapping business. This morning, Judge Alice Batchelder of the Sixth Circuit Court of Appeals vacated Taylor's injunction based on the plaintiffs' (a group of journalists, academics, and lawyers who regularly communicate with individuals located overseas) lack of standing.
Yet Batchelder, who was appointed by the president's father, agrees with Taylor that the program itself is illegal:
"Without expressing an opinion concerning the analysis of the district court, I would affirm its judgment because <h3>I conclude that the TSP violates FISA and Title III and that the President does not have the inherent authority to act in disregard of those statutes.</h3> The clearest ground for deciding the merits of this appeal is the plaintiffs’ statutory claim, just as the clearest argument for standing is presented by the attorney-plaintiffs. This is not to say that the plaintiffs’ other causes of action lack merit, but simply that this case can, and therefore should, be decided on the narrowest grounds possible."
More soon.
Update: The judge was equally clear in her conclusion:
"The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier. Mootness is not a problem because of <h3>the government’s position that it retains the right to opt out of the FISA regime whenever it chooses. Its AUMF and inherent-authority arguments are weak in light of existing precedent and the rules of statutory construction. Finally, when faced with the clear wording of FISA and Title III that these statutes provide the “exclusive means” for the government to engage in electronic surveillance within the United States for foreign intelligence purposes, the conclusion becomes inescapable that the TSP was unlawful.</h3> I would therefore affirm the judgment of the district court."
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Quote:
http://writ.news.findlaw.com/dean/20051230.html
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George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably;
Both Claimed That a President May Violate Congress' Laws to Protect National Security
By JOHN W. DEAN
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Friday, Dec. 30, 2005
On Friday, December 16, the New York Times published a major scoop by James Risen and Eric Lichtblau: They reported that Bush authorized the National Security Agency (NSA) to spy on Americans without warrants, ignoring the procedures of the Foreign Intelligence Surveillance Act (FISA).
It was a long story loaded with astonishing information of lawbreaking at the White House. It reported that sometime in 2002, Bush issued an executive order authorizing NSA to track and intercept international telephone and/or email exchanges coming into, or out of, the U.S. - when one party was believed to have direct or indirect ties with al Qaeda.
Initially, Bush and the White House stonewalled, neither confirming nor denying the president had ignored the law. Bush refused to discuss it in his interview with Jim Lehrer.
<h3>Then, on Saturday, December 17, in his radio broadcast, Bush admitted that the New York Times was correct - and thus conceded he had committed an impeachable offense.</h3>
There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons.
These parallel violations underscore the continuing, disturbing parallels between this Administration and the Nixon Administration - parallels I also discussed in a prior column.
Indeed, here, Bush may have outdone Nixon: Nixon's illegal surveillance was limited; Bush's, it is developing, may be extraordinarily broad in scope. First reports indicated that NSA was only monitoring foreign calls, originating either in the USA or abroad, and that no more than 500 calls were being covered at any given time. But later reports have suggested that NSA is "data mining" literally millions of calls - and has been given access by the telecommunications companies to "switching" stations through which foreign communications traffic flows.
In sum, this is big-time, Big Brother electronic surveillance.
Given the national security implications of the story, the Times said they had been sitting on it for a year. And now that it has broken, Bush has ordered a criminal investigation into the source of the leak. He suggests that those who might have felt confidence they would not be spied on, now can have no such confidence, so they may find other methods of communicating. Other than encryption and code, it is difficult to envision how.
Column continues below ↓
Such a criminal investigation is rather ironic - for the leak's effect was to reveal Bush's own offense. Having been ferreted out as a criminal, Bush now will try to ferret out the leakers who revealed him.
Nixon's Wiretapping - and the Congressional Action that Followed
Through the FBI, Nixon had wiretapped five members of his national security staff, two newsmen, and a staffer at the Department of Defense. These people were targeted because Nixon's plans for dealing with Vietnam -- we were at war at the time -- were ending up on the front page of the New York Times.
Nixon had a plausible national security justification for the wiretaps: To stop the leaks, which had meant that not only the public, but America's enemies, were privy to its plans. But the use of the information from the wiretaps went far beyond that justification: A few juicy tidbits were used for political purposes. Accordingly, Congress believed the wiretapping, combined with the misuse of the information it had gathered, to be an impeachable offense.
Following Nixon's resignation, Senator Frank Church chaired a committee that investigated the uses and abuses of the intelligence derived from the wiretaps. From his report on electronic surveillance, emerged the proposal to create the Foreign Intelligence Surveillance Act (FISA). The Act both set limits on electronic surveillance, and created a secret court within the Department of Justice - the FISA Court -- that could, within these limits, grant law enforcement's requests to engage in electronic surveillance.
The legislative history of FISA makes it very clear that Congress sought to create laws to govern the uses of warrantless wiretaps. Thus, Bush's authorization of wiretapping without any application to the FISA Court violated the law.
Whether to Allow Such Wiretaps, Was Congress' Call to Make
No one questions the ends here. No one doubts another terror attack is coming; it is only a question of when. No one questions the preeminent importance of detecting and preventing such an attack.
What is at issue here, instead, is Bush's means of achieving his ends: his decision not only to bypass Congress, but to violate the law it had already established in this area.
Congress is Republican-controlled. Polling shows that a large majority of Americans are willing to give up their civil liberties to prevent another terror attack. The USA Patriot Act passed with overwhelming support. So why didn't the President simply ask Congress for the authority he thought he needed?
The answer seems to be, quite simply, that Vice President Dick Cheney has never recovered from being President Ford's chief of staff when Congress placed checks on the presidency. And Cheney wanted to make the point that he thought it was within a president's power to ignore Congress' laws relating to the exercise of executive power. Bush has gone along with all such Cheney plans.
No president before Bush has taken as aggressive a posture -- the position that his powers as commander-in-chief, under Article II of the Constitution, license any action he may take in the name of national security - although Richard Nixon, my former boss, took a similar position.
Presidential Powers Regarding National Security: A Nixonian View
Nixon famously claimed, after resigning from office, that when the president undertook an action in the name of national security, even if he broke the law, it was not illegal.
Nixon's thinking (and he was learned in the law) relied on the precedent established by Abraham Lincoln during the Civil War. Nixon, quoting Lincoln, said in an interview, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."
David Frost, the interviewer, immediately countered by pointing out that the anti-war demonstrators upon whom Nixon focused illegal surveillance, were hardly the equivalent of the rebel South. Nixon responded, "This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president." It was a weak rejoinder, but the best he had.
Nixon took the same stance when he responded to interrogatories proffered by the Senate Select Committee on Government Operations To Study Intelligence Operations (best know as the "Church Committee," after its chairman Senator Frank Church). In particular, he told the committee, "In 1969, during my Administration, warrantless wiretapping, even by the government, was unlawful, but if undertaken because of a presidential determination that it was in the interest of national security was lawful. Support for the legality of such action is found, for example, in the concurring opinion of Justice White in Katz v. United States." (Katz is the opinion that established that a wiretap constitutes a "search and seizure" under the Fourth Amendment, just as surely as a search of one's living room does - and thus that the Fourth Amendment's warrant requirements apply to wiretapping.)
Nixon rather presciently anticipated - and provided a rationalization for - Bush: He wrote, "there have been -- and will be in the future -- circumstances in which presidents may lawfully authorize actions in the interest of security of this country, which if undertaken by other persons, even by the president under different circumstances, would be illegal."
Even if we accept Nixon's logic for purposes of argument, were the circumstances that faced Bush the kind of "circumstances" that justify warrantless wiretapping? I believe the answer is no.
Is Bush's Unauthorized Surveillance Action Justified? Not Persuasively.
Had Bush issued his Executive Order on September 12, 2001, as a temporary measure - pending his seeking Congress approval - those circumstances might have supported his call.
Or, had a particularly serious threat of attack compelled Bush to authorize warrantless wiretapping in a particular investigation, before he had time to go to Congress, that too might have been justifiable.
But several years have passed since the broad 2002 Executive Order, and in all that time, Bush has refused to seek legal authority for his action. Yet he can hardly miss the fact that Congress has clearly set rules for presidents in the very situation in which he insists on defying the law.
Bush has given one legal explanation for his actions which borders on the laughable: He claims that implicit in Congress' authorization of his use of force against the Taliban in Afghanistan, following the 9/11 attack, was an exemption from FISA.
No sane member of Congress believes that the Authorization of Military Force provided such an authorization. No first year law student would mistakenly make such a claim. It is not merely a stretch; it is ludicrous.
But the core of Bush's defense is to rely on the very argument made by Nixon: that the president is merely exercising his "commander-in-chief" power under Article II of the Constitution. This, too, is a dubious argument. Its author, John Yoo, is a bright, but inexperienced and highly partisan young professor at Boalt Law School, who has been in and out of government service.
To see the holes and fallacies in Yoo's work - embodied in a recently published book -- one need only consult the analysis of Georgetown University School of Law professor David Cole in the New York Review of Books. Cole has been plowing this field of the law for many years, and digs much deeper than Yoo.
Since I find Professor Yoo's legal thinking bordering on fantasy, I was delighted that Professor Cole closed his real-world analysis on a very realistic note: "Michael Ignatieff has written that 'it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does.' Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing."
To which I can only add, and recommend, the troubling report by Daniel Benjamin and Steven Simon, who are experts in terrorism and former members of President Clinton's National Security Council. They write in their new book The Next Attack: The Failure of the War on Terror and a Strategy for Getting It Right, that the Bush Administration has utterly failed to close the venerable loopholes available to terrorist to wreak havoc. The war in Iraq is not addressing terrorism; rather, it is creating terrorists, and diverting money from the protection of American interests.
Bush's unauthorized surveillance, in particular, seems very likely to be ineffective. According to experts with whom I have spoken, Bush's approach is like hunting for the proverbial needle in the haystack. As sophisticated as NSA's data mining equipment may be, it cannot, for example, crack codes it does not recognize. So the terrorist communicating in code may escape detection, even if data mining does reach him.
In short, Bush is hoping to get lucky. Such a gamble seems a slim pretext for acting in such blatant violation of Congress' law. In acting here without Congressional approval, Bush has underlined that his Presidency is unchecked - in his and his attorneys' view, utterly beyond the law. Now that he has turned the truly awesome powers of the NSA on Americans, what asserted powers will Bush use next? And when - if ever - will we - and Congress -- discover that he is using them?
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the president's Dec. 17, 2005 radio address, and the opening of the NY Times reporting, from the day before....:
Quote:
http://www.whitehouse.gov/news/relea.../20051217.html
For Immediate Release
Office of the Press Secretary
December 17, 2005
President's Radio Address
....To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I'm also using constitutional authority vested in me as Commander-in-Chief.
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.
This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. <h3>Yesterday the existence of this secret program was revealed in media reports</h3>, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country. ....
.....The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities. The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.
The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and <b>I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.</b>
The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.
Quote:
http://www.nytimes.com/2005/12/16/po...gewanted=print
Bush Lets U.S. Spy on Callers Without Courts
By JAMES RISEN and ERIC LICHTBLAU
Correction Appended
WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
<b>"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."</b>
Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times <h3>because of their concerns about the operation's legality and oversight.......</h3>
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<h2>Update !!!</h2>
Quote:
http://www.tpmmuckraker.com/archives/003615.php
Breaking: Judge Sides With Gov't In Warrantless Surveillance Case
By Spencer Ackerman - July 6, 2007, 11:03 AM
So much for the ACLU's suit against the National Security Agency over the NSA's warrantless surveillance program. Last year, Judge Anna Diggs Taylor of the Eastern District of Michigan ordered an injunction against the NSA program, an action crucial to the Justice Department's January announcement that the Bush administration would get out of the warrantless wiretapping business. This morning, Judge Alice Batchelder of the Sixth Circuit Court of Appeals vacated Taylor's injunction based on the plaintiffs' (a group of journalists, academics, and lawyers who regularly communicate with individuals located overseas) lack of standing.
<h3>Update: This post initially attributed dissenting views on the legality of the warrantless surveillance program to Batchelder's majority opinion. We deeply regret the error.</h3>
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.....so, it turns out that the republican appointees to the sixth district court appellate panel ruled on the narrow, procedural grounds of plaintiff standing only....this leaves us with just one of thress judges on that panel, and Judge Anna Diggs Taylor of the Eastern District of Michigan....saying publicly that the president's actions are illegal. IMO, this leaves the obligation to determine whether the president is breaking the Fisa law, in the hands of house and senate judiciary committees.....
Last edited by host; 07-06-2007 at 09:25 AM..
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