Monday, January 29, 2007

Weighing the Consequences Of Telling Others the Truth

From today's issue of the The New York Times, in an article at page A12 National Report -- Adam Liptak: Sidebar --"Weighing the Consequences of telling others the truth"

In an argument in a grand ceremonial courtroom, nine judges were trying to figure out how to answer one of the great open questions in American constitutional law: When is it right to punish people for telling the truth about matters of public concern?

In threatening to prosecute reporters for publishing articles about surveillance programs and secret prisons, and in actually prosecuting two lobbyists for passing along information a government official had linked to them, the Bush Administration says the First Amendment offers no protection to people who did nothing beyond learning things and talking about them.

A Half Million Protest Against U.S. Bush Administration

With the Capitol as a backdrop, demonstrators listen to the speakers during a protest against the war in Iraq on the National Mall on Saturday, in Washington. (AP Photo/Kevin Wolf)

Below from:

On Saturday night, before reading any first-hand accounts of the DC protest, I wrote that, "In NY Times math 'tens of thousands' showed up, which means that anywhere from fifty to five-hundred thousand were there..."

According to a first-hand account from a close friend, the number was closer to 500,000.

Tikkun's Deb Kory wrote:

"The news media got this number from an unofficial, un-named police source..."

And that's the number they led with. Not the 400,000 estimate they received from UFPJ organizers quoted toward the bottom of the story. Not even a range. Not even an average. Kory continued: "We did not gather to protest the surge (though it was certainly one object of our protest); we gathered to protest the immorality of the Iraq War. We came to mourn the hundreds of thousands of lives lost to this meaningless war and to express our fears about being thrust against our will to the very brink of global chaos. We did not come to "march against Congress" as some of the media are claiming; we came to hold our elected officials accountable and to use the leverage we have in this so-called Democracy to try to correct for 5 years of political lunacy. We came to let our elected representatives know that if they press forward with their mandate to end the war, we will be here to support them. We came not only to protest, but to engage in dialogue with our elected officials (we will be "lobbying" on Capitol Hill on Monday). And, yes, we came to ask for a Presidential impeachment." [emphasis added]

Sunday, January 28, 2007

U.S. Senator Rockefeller Says He May Subpoena Documents on Spying (Update1)

A week has passed since U.S. Attorney General Alberto Gonzales told Senators that he would show them papers in a week detailing what is essentially the Bush-Gonzales Search Warrant on the General Public, or One Nation Under One Search Warrant.

From Bloomberg:

By Jeff Bliss

Jan. 26 (Bloomberg) -- Senate Intelligence Committee Chairman Jay Rockefeller said he may subpoena Bush administration documents on its controversial domestic surveillance program.

Rockefeller, a West Virginia Democrat, vowed he'll get details on a secret court's approvals of the program that targets suspected al-Qaeda members in the U.S.

``I don't trust what they're doing,'' Rockefeller said in an interview on ``Political Capital With Al Hunt'' airing this weekend on Bloomberg TV. ``If I can't get the information,'' he said, ``I will not shy away from subpoenaing'' it.

The Justice Department on Jan. 17 publicly reversed its opposition to letting the Foreign Intelligence Surveillance Court supervise the eavesdropping yet has declined to say how that oversight works.

Rockefeller said it's ``not acceptable'' if the court doesn't review each instance of the electronic surveillance carried out by the National Security Agency.

``In the end, every single wiretap has to have a warrant,'' he said. ``I can't trust'' what the administration says.

The Justice Department indicated Jan. 24 that it was reluctant to share the rulings.

``The executive branch does not publicly release classified information concerning methods, means and operational details of ongoing, clandestine surveillance activities,'' department lawyers wrote in court papers filed with the 6th U.S. Circuit Court of Appeals in Cincinnati. ``More to the point, the longstanding practice is that FISA Court orders remain classified and not subject to public dissemination,'' they wrote.

Revelations about the program in December 2005 caused a public furor over privacy rights and led to calls that the program be disbanded.

Provoking Iran

Rockefeller also said he suspects that Vice President Dick Cheney and other administration officials are trying to provoke a military conflict with Iran.

``I don't know that, but I assume that,'' he said.

The senator said he's skeptical that President George W. Bush's program to kill Iranian operatives in Iraq has uniform support within the administration.

``The president has given the order,'' Rockefeller said. ``I'm not sure that it's even clear within the administration that it's a justified policy.''

`We Will Stop Them'

Bush said today he's given the go-ahead for the military to stop suspected Iranian agents in Iraq from attacking civilians or American troops.

``If somebody is trying to harm our troops, or stop us from achieving our goal, or killing innocent citizens in Iraq, we will stop them,'' Bush told reporters after meeting with his top military commanders at the White House.

Bush backed the killings as a way of putting pressure on Iran to stop aiding Iraqi Shiite militias who are taking part in the country's sectarian fighting, according to a story in today's Washington Post. Some administration officials are concerned the program will prompt Iran to retaliate with similar actions against U.S. forces, the paper said.

Rockefeller saved some of his harshest criticism for Cheney, who he said tried to block the committee's efforts to get information on intelligence operations.

``He's doing everything possible to stop that,'' he said.

A spokeswoman for Cheney couldn't be reached immediately for comment.

Rockefeller said he hopes the next administration will be headed by someone who ``can do as good or better a job.''

While declining to make an endorsement, he said he wouldn't discount first-term Democratic Senator Barack Obama of Illinois, who said Jan. 16 that he's exploring a presidential bid.

``Experience is incredibly important,'' Rockefeller said. ``It also can be overrated.''

What's more important is a president ``who is very bright, somebody who in this town can so easily surround himself with incredibly thoughtful people who are wise,'' he said.

To contact the reporter on this story: Jeff Bliss in Washington at .

Last Updated: January 26, 2007 16:46 EST

Sunday, January 21, 2007

Sen. Leahy Slams Gonzalez Over Torture

Here's a video with U.S. Attorney General Alberto Gonzales being asked about sanctioning kidnapping and torture.

Senator Leahy (D) Vermont, blasted Alberto Gonzalez at todays briefing over the treatment of Maher Arar, a Canadian citizen who was detained and sent to Syria, where he was regularly tortured for almost a year before being released uncharged.

Gonzales has until next week to come up with answers; otherwise there should be another hearing.

Charlie Rose - Alberto Gonzales / Laurence Tribe

Here is an interesting video.

Segment 1: Attorney General Alberto Gonzales discusses the controversy surrounding the NSA wiretapping program.

Segment 2: Professor Laurence Tribe of Harvard University provides his perspective on the Constitutional issues involved in the NSA wiretapping program.

Saturday, January 20, 2007

Bush-Gonzales Thumping the GOP

People within Bush-Gonzales' Republican Party are seeing this show is making the GOP unpopular, and that whoa for them at the polls in 2008.

"When we are true to our core principles of lower taxes, limited government and individual responsibility, we win," said Mike Duncan, the RNC's new chairman. However, he added, Republicans lose ground when they stray from those priorities, as the GOP did last fall.

Republicans lost control of Congress, a handful of governorships and several state legislatures in what President Bush has called "a thumping." The stakes will be even higher in 2008, when the White House, as well as the House and Senate, are up for grabs.

In speech after somber speech, leading Republicans invoked the era of Ronald Reagan, saying the GOP must go back to a time of fiscal discipline and efficient government. It was a slap of sorts at Bush, a rejection of the status quo and an acknowledgment that the party has lost its way.

Party activists from across the country held a three-day meeting at a Washington hotel to elect new GOP leaders, formally name Minneapolis-St. Paul as the host city for the 2008 presidential convention and attend to routine party business.


How about dismantling USHS-IAO, and a definitely staged withdrawal from Iraq, with a open review of U.S. Military occupation administration to ensure that such does not serve to inflame rather then reduce the percentage of Iraq’s who see the U.S. military as the enemy?

We forget how the type of military administration varies from within a given country: just ask Eastern Europeans about the significant differences between being occupied by the German military in WWI versus WWII. (Many Jewish people in places as the Ukraine did not flee the Nazi troop in 1941 for not believing that German military would harm them, because of the good reputation of the German military occupation of 1915-1918.)

Should not this be of concern to the people of the United States of America who pride themselves about this being a better nation?

Are we to suppose that our nation's good reputation immunizes it from ever developing a bad reputation?

Amongst the elected officials, Ron Paul represents the best chance to save the GOP, and of so much more.

Bush-Gonzales Favor Roman Law Over British Law

From the Takoma Park List Serve:

Under the British-inspired legal system, you tend to have a right unless it is specifically taken away. Under the Roman type of legal system, you tend not to have rights unless they are granted to you. Interesting how a Harvard educated lawyer like that little toady Gonzales can apply the interpretation of the latter to the former.
I wonder if Scalia and Alito would concur (as for Thomas, as long it is authoritarian, it goes)

YES! Exactly, Alain. And since our system recognizes itself as beginning with the received law of Britain already established in the colonies (and this has been stated in Supreme Court decisions), you can understand why Spector was stammering with incredulity. We take the Magna Carta as part of our received law and that is the source of habeas corpus.

It's why our legal system is one evolved from the British common law and why we sometimes refer to it as Anglo-American law. We are not a civil law or Napoleonic code nation (excepting Louisiana), we are a common law system. Harvard Law School should be ashamed.

And this highlights an important difference between a bad Democratic lawyer and a bad Republican lawyer: the Democrat contests the meaning of "is" and the Republican questions the right of habeas corpus.


Friday, January 19, 2007

Bush-Gonzales: One Nation Under One Search Warrant?

Comments by U.S. Attorney Alberto Gonzales indicate that minds within the U.S. government are conspiring to obtain a broad rubber stamp search warrant for the general public.

From today's issue of The New York Times:

Senator Charles E. Schumer, Democrat of New York asked about the court’s approval of the surveillance orders.

“I’d like to know”, Mr. Schumer said, “if there is an intention to do this on an individual basis or on a case by case basis where 5, 6, 10, 20, 100 individuals are involved or is it a broader brush then that ? Because if it is very broad brush approval, again because it’s secret, we have no way of knowing, it does not do much good."

So we are supposed to trust a secret court. All under the guise of "national security," under an Attorney General that thinks that judges should never make such decisions. Just a day ago at the American Enterprise Institute, Gonzales said:

"A judge will never be in the position to know what is in the national security interest of the country…"

"I try to imagine myself being a judge," Gonzales said. "What do I know about what is going on in Afghanistan or Guantanamo?"

"How are judges supposed to gather up the information, the collective wisdom of the entire executive branch ... and make a determination as to what is in the national security interest of our country?" Gonzales asked. "They're not capable of doing that."

Note how Gonzales gives examples of foreign countries presumably alien to him to support his claim that judges should never be a position. Never means never. It does not mean never just for those places presumably alien to a judge.

Its sort of like the word trick where Gonzales and others use the term "terrorist" when they really mean "people".

Or when they say that the laws are to allow the government to go after the terrorist organization that flew plans into buildings on September 11, 2001- that is those groups that they have identified as such.

Bush-Gonzales Cut and Run

Yesterday morning in Washington, D.C. at the U.S. Senate Judiciary Committee, people heard the U.S. Attorney General Alberto Gonzales lay out some of his legal thinking to essentially cut out pieces of our U.S. Constitution, before the meeting itself was abruptly ended shortly after the break for lunch.

Some Highlights:

- That he does not know how many lawyers he fired because he’s fired so many for not agreeing with his new inquisition.

- That he simply wants federal judges to stop ruling on national security policies.

- There is “no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away”
... Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.

“You may be treading on your interdiction of violating common sense,” Specter said.
While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear also don’t exist because the Constitution often spells out those rights in the negative.

For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights.
Gonzales would nullify those constitutional liberties that are well recognized, by disregarding them much as amendments 8 and 9 are routinely nullified. Apparantly equal protection under the law is also an alien concept to him.

The meeting is reportedly cut short and not live televised by CNN.
The hearing ended very abruptly about a half hour after the lunch break. I thought there was either a bomb threat or the Senators were going to be arrested by bush. People on the Democratic Underground thread following the hearings were at a loss as to why the hearings ended so quickly. I don't think Gonzo was even asked for the number. No one is commenting on the very strange and abrupt end of this hearing.

CSPAN did not cover it LIVE as they are required to do under their charter to provide gavel to gavel coverage and one poster thought this was deliberate. Any further info on why Leahy adjourned so quickly would be appreciated. Has anyone seen our Congresspersons since the 2:38 pm adjournment of this hearing?

I hear that this site now has the hearings vid:

Posted by: share
Date: January 18, 2007 10:56 PM

Senate Committee
Justice Department Oversight
Washington, District of Columbia (United States)
ID: 196247 - 01/18/2007 - 3:35 - $240.00

Leahy, Patrick J.U.S. Senator, D-VT

Gonzales, Alberto R.Attorney General, Department of Justice

Attorney General Gonzales testified about Justice Department operations and answered questions on law enforcement and judicial policy. Among the issues he addressed were the recent decision by the Bush administration to submit domestic surveillance programs to federal court review despite earlier claims that to do so might endanger counter-terrorism operations. Members questioned him about the process agreed to by the foreign intelligence surveillance court, the nature of the requests being made for warrants, and the timing of the decision.

$240.00 Nice going CNN. That's some service.

And its a very bad sign about the lack of commitment of the mass media to do a proper job to educate the masses.

Thursday, January 18, 2007

Bush-Gonzales Dance Around U.S. Constitution

From today's New York Times lead editorial "A Spy Program in From the Cold"
"There are some big unanswered questions. For one thing, because the new warrant process is secret, we don't know whether the court has issued a blanket approval for wiretapping, which would undermine the intent of the law, or whether the administration agreed to seek individual warrants...

We strongly agree with John Rockefeller IV, the Democratic chairman of the Senate Intelligence Committee, that “the administration’s go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary” and that the White House should turn over documents on the creation of the wiretapping program. If the 1978 law needs to be updated, that should happen in public, not in a secret court.

This administration long ago forfeited the public trust on these issues."

Shall Congress ask about any instance of the mis-use of U.S. Homeland Security?

Or shall they pretend that the civil liberties threat is merely theoretical?

Comments from

If anyone really believes this will happen as stated then I have a bridge to sell you in Brooklyn. All the Bush administration will do is throw a few bones at this court and the rest of the activity will go underground. Consider that all the various activities we learn about these days, NSA wiretapping, opening mail, the military becoming involved in domestic spying of US citizens, and so forth, were originally all part of that not so long ago, and Congressionally forbidden, program called Total Information Awareness. All that happened when the budget was zeroed out was it was broken up into pieces and placed in various departments and taken into the secret code word world. I have very little confidence that Bush and crowd have relinquished anything.

Since the FISA ruling on this new way to spy on Americans only lasts 90 days, it begs the question, then what ? Back to business as usual , down and dirty ? Congress must press for a full disclosure tomorrow, and if they dont get it, they should issue a arrest warrant for Contempt of Congress. Gonzales could of course plead the 5th Amendment since if he does tell the whole truth, it seems obvious he has broken the laws of the USA.

Lets not roll over to this Soviet regime now that they have retreated an inch. What are they trying to hide is the question. Just like when the Senate was taken over by Demos and Bush et al suddenly changed their tune on Enron. We knew that they were attempting to hide the massive fraud and theft and lies related to Enron by an abrupt change in policy. Here we have the same. They have been spying on political opponents with this evil regime they call anyone who opposes them as aiding terrorists and now want to stop any investigation by the Senate by tossing the program to this unconstitutional star chamber that itself must be shut down as a violation of our constitution.

Things like this somehow never cease to disturb me. Todays administration has all the red flags of the Soviet republics... interesting to note that the name Gosbezopastnost also known as the KGB translates as Department of Homeland Security. What is with all this whispering and the addiction to classifying all information if nobody is doing anything wrong? Why does the government have to spy on everybody as if we were hunting for political convicts to stuff the Gulag?

People......Please Read John Ashcrofts Never Again.....According to him we are all potential terrorists......Just say NATIONAL SECURITY and anything goes........Douglas Willinger is correct...

Wednesday, January 17, 2007

Bush-Gonzales Illegal Wiretaps Grounds for Impeachment

Imagine an event that looks like that above where an official is to be asked about the use of U.S. Homeland Security resources being used to silence dissent.

We are tracking people for what?


Faced with reports that the Bush Administration, based solely upon George Bush’s personal authority, has been using the National Security Agency (NSA) to electronically eavesdrop on Americans within the United States in direct violation of the Foreign Intelligence Surveillance Act (FISA), Bush claims that his actions are perfectly legal because as President and commander in chief, he can violate the law at his discretion and still be acting legally. He can do as he pleases, will continue to do so, and neither Congress nor the courts have any say in the matter. In other words, it’s his royal prerogative.

Passed in 1978 after the US Senate’s Church Committee investigation into the Nixon administration’s widespread abuse of U.S. intelligence agencies to spy on the anti-Vietnam war movement and other political dissidents, FISA expressly made it a crime for government officials "acting under color of law" to engage in electronic eavesdropping "other than pursuant to statute."

Getting a warrant under FISA is so quick and easy it's virtually pro forma. Instead of having to apply to a federal court, intelligence officials can get a surveillance warrant from a FISA court judge in a totally secret proceeding. They need not show "probable cause" to believe a crime is being committed but only a "reason to believe" that there might be a threat to national security, and the judge has almost no authority to reject the government's request for a warrant unless the government's request are extraordinarily unrelated, even tenuously, to national security. The court can issue a warrant in minutes; it even allows the government to go ahead and start its wiretap, then seek a retroactive warrant up 72 hours later; even longer during wartime. Since it’s inception 1979, it has declined to issue warrants only four times out of the 18,747 times the government has sought one.

Why would the President deliberately circumvent such a compliant court that was already so eager to grant him domestic surveillance warrants? As FISA warrant applications and the results of his warrantless NSA spying are secret, we can only extrapolate from his other domestic spying activities with the FBI and the Pentagon.

Two years ago, the New York Times reported that the administration is using the FBI to "collect extensive information on the tactics, training and organization of antiwar demonstrators." Then, just a few months ago, the Times reported that the FBI "has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups." Since 9/11, the FBI has amassed 1,173 pages on the American Civil Liberties Union, the leading critic of the Bush administration's curtailment of Constitutionally protected civil liberties, and 2,383 pages on Greenpeace, a group that has vocally opposed the Bush administration's environmental policies. Other targets of the FBI have been the American Indian Movement of Colorado, Food Not Bombs, a group that provides free vegetarian food to hungry people and protests war and poverty, and United for Peace and Justice, a coalition of more than 1,000 antiwar groups.

A couple of weeks ago NBC News obtained a 400-page Pentagon document outlining the Bush administration's surveillance of anti-war peace groups. Two years ago, under the direction of Deputy Secretary of Defense Paul Wolfowitz, one of the architects of the Iraq War, the Department of Defense directed a little known agency, the Counterintelligence Field Activity (CIFA), to “establish and maintain a domestic law enforcement database that includes information related to potential terrorist threats directed against the Department of Defense.” CIFA in turn collects Threat and Local Observation Notice (TALON) reports; “non-validated domestic threat information” from military units throughout the United States that are collected and retained in a CIFA database. Among the highlights of the CIFA documents procured by NBC, in one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period, a Society of Friends meeting house in Lake Worth, Florida, where a small group of peace activists were planning a peaceful protest of military recruiting at local high schools, was infiltrated and labeled a “threat” by the U.S. military.

None of these organizations can even remotely be associated with Al Queda. Indeed, their only demonstrable commonality is their political opposition to the Bush administration. One can only conclude that George Bush evaded FISA because he was ordering surveillance operations that were so outrageous, and to put it in Constitutional terms, so "unreasonable" that even a FISA court would have rejected them; spying not on foreign terrorists to protect America from attack, but spying on American citizens lawfully exercising their Constitutional rights to freedom of speech, freedom to peaceably assemble, and freedom to petition their government for redress of grievances; Americans he considers his enemies.

Article 2 of the three Articles of Impeachment against Richard Nixon alleged that Nixon committed a crime “by directing or authorizing [intelligence] agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office.” There is now sufficient evidence that George Bush is doing precisely the same thing, for essentially the same reason. It’s well past time for Congress to act, and stop obsequiously abdicating its Constitutional authority and responsibility while it still has some to exercise.

"Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."
William Pitt, 1783

“They who would give up an essential liberty for temporary security, deserve neither liberty or security.”
Benjamin Franklin

"You don't get everything you want. A dictatorship would be a lot easier."
George Bush, Governing Magazine, July 1998

“If this were a dictatorship, it would be a heck of a lot easier, just so long as I'm the dictator."
George Bush, CNN, Dec. 18, 2000

Of course with this administration's secrecy, expect some serious stone walling!

Tuesday, January 16, 2007

Ron Paul on the 911 Commission

Our nation will be safer only when government does less, not more. Rather than asking ourselves what Congress or the president should be doing about terrorism, we ought to ask what government should stop doing. It should stop spending trillions of dollars on unconstitutional programs that detract from basic government functions like national defense and border security. It should stop meddling in the internal affairs of foreign nations, but instead demonstrate by example the superiority of freedom, capitalism, and an open society. It should stop engaging in nation-building, and stop trying to create democratic societies through military force. It should stop militarizing future enemies, as we did by supplying money and weapons to characters like Bin Laden and Saddam Hussein. It should stop entangling the American people in unholy alliances like the UN and NATO, and pledge that our armed forces will never serve under foreign command. It should stop committing American troops to useless, expensive, and troublesome assignments overseas, and instead commit the Department of Defense to actually defending America. It should stop interfering with the 2nd amendment rights of private citizens and businesses seeking to defend themselves.

More than anything, our federal government should stop deluding us that more government is the answer. We have far more to fear from an unaccountable government at home than from any foreign terrorist.

Excerpt from

Saturday, January 13, 2007

Ron Paul Elected President in 2008?

It's perhaps our best bet to reverse the dangerous erosions of Constitutional liberties of the new crusaders of the Bush Administration. Ron Paul was the Libertarian Party candidate for U.S. President in 1988. Now, twenty years later, he may seek to be the Republican Party candidate for U.S. President.

Ron Paul voted against the Patriot Act, opposes the draft, advocates the abolition of the income tax, urges the re-introduction of the gold standard, and stands against initiatives to strip the U.S. of its sovereignty such as CAFTA and the FTAA.

From reforming Marijuana laws to supporting an unregulated Internet, to supporting the 2nd amendment, Ron Paul hits home with keystone populist issues across the board.

During several appearances on The Alex Jones Show, Ron Paul has consistently upheld his commitment to civil liberties, slammed the militarized police state that Bush has created and also called for immediate impeachment proceedings to be brought against the current incumbent of the White House.

President Ron Paul could truly return America to the great nation it once was and his decision to run is an exciting development that we should all embrace and stand beside him in the fight to restore some form of dignity to the office of President that has been completely absent since the assassination of John F. Kennedy in 1963.

"Congressman Ron Paul is a dream candidate, a super patriot, a total Constitutionalist, an American hero."

"We must elect him President."
Alex Jones

http://www.prisonpl articles/ january2007/ 120107ronpaul. htm

Additional links:

Tuesday, January 09, 2007

U.S. 4th Amendment, the Bush Administration and the U.S. Congress

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The article that I got the above illustration at suggests that the Administration of George Walker Bush is most concerned about securing its effects from search by the U.S. Congress:

The Bush administration has been historic in its refusal to share information with Congress or the public. It has strong motivations to continue to conceal such information, such as avoiding humiliation, further public exposure, and probable criminal liability. It has sent strong signals it will indeed refuse to provide such information. As Time magazine wrote just before the election:

When it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist described as 'a cataclysmic fight to the death' over the balance between Congress and White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is 'going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation.

As a result, the U.S. is headed toward what Tom Engelhard has called "the mother of all Constitutional crises."

Indeed, that crisis has already begun. For example, just after the elections the Justice Department, in response to an ACLU suit, disclosed in court the existence of directives from the President and the CIA General Counsel that may have authorized torture and other illegal interrogation techniques. Sen. Patrick Leahy, incoming chair of the Senate Judiciary Committee, immediately wrote Attorney General Alberto Gonzales requesting the documents and related records. On January 2, Leahy released a letter from the Justice Department refusing to provide the documents on grounds of national security and executive privilege. Leahy decried the refusal and added, "I have advised the Attorney General that I plan to pursue this matter further at the Committee's first oversight hearing of the Department of Justice."

This is just the first of what are likely to be myriad such conflicts. Both sides are likely to maneuver to determine the issues over which the climactic struggles will arise. The Administration will probably maneuver for issues on which it can make a strong national security case. Congress will probably seek to steer confrontation to issues like war profiteering on which the Administration will appear to be withholding information for self-serving reasons, e.g. avoiding embarrassment or criminal culpability.

Constitutionalists, progressives, and the public should support the congressional assertion of the right to know, whatever subject emerges as the decisive bone of contention. However, they should ensure that this does not become a means for either side to take other important but more controversial issues (such as the origins of the war and the commission of war crimes) off the table.

The Administration has been preparing for this situation for a long time; news reports indicate that even prior to the elections it hired lawyers specifically to plan for such a contingency. It is likely to use a variety of delaying tactics, diversions, and pseudo-compliances to bring the issue to a head at a time most advantageous to it. It is also likely to engage in counter-attacks, such as the recent attempt by its prosecutors to use a grand jury subpoena to force the ACLU to turn over all copies of a classified document. (The revocation of its demand also shows the effectiveness of firm resistance to Administration intimidation.)

Notwithstanding Administration delays and diversions, Congressional access to Administration documents is likely to become a serious power struggle quite rapidly after the opening of the new Congress. A plausible scenario looks something like this:

· A congressional committee will request information.

· The Administration will stonewall.

· The committee will issue a subpoena.

· Amidst a sea of justifications and vilifications, the
Administration will fail or refuse to produce documents.

· The committee will pass a contempt citation.

· The Senate or House will pass a contempt citation.

· The contempt citation will be referred to the Justice Department.

· The Justice Department will fail or refuse to bring contempt charges.

At that point Congress will have several options:

It can make angry noises while in actuality accepting Administration intransigence.

It can pass legislation establishing a special prosecutor.

It can appeal to the courts by suing the Administration.

It can establish a select committee or otherwise threaten impeachment against whatever officials it decides to hold accountable, from the President and Vice-President through cabinet members and other top officials.

What choice Congress makes will depend largely on public perception of and response to the situation. For example, in the Watergate scandal, public outrage at the "Saturday Night Massacre" tipped the balance toward congressional impeachment hearings. On the other hand, public disapproval of the attempt to impeach President Clinton actually contributed to a Democratic victory at the next elections.

Constitutionalists and progressives need to start planning proactively to prepare the public to respond appropriately and effectively to this impending confrontation.

First, that requires an on-going interpretation to people of what is happening and what it means.

Second, it involves defining venues for action in which large numbers of people can participate. Rep. John Conyers' mobilization of popular support for demanding information about the Downing Street memos represents on a small scale what will need to be done on a larger scale.

Third, it requires creating some kind of infrastructure or rapid-response network with the capacity to support such a mobilization.

Fourth, it calls for a broad coalition that reaches far beyond progressives to include conservatives committed to the rule of law and a broad public concerned about the abuse of presidential power and the preservation of democracy. Such a coalition already exists in nascent form, for example in the Constitution Project, which has brought together such improbably allies as Al Gore and Bob Barr to articulate concern about Bush administration abuse of presidential power.

The power and willingness of Congress to affect Bush's Iraq policies depends on utilizing the vulnerability of the Administration and its Republican supporters to severe loss of effective power, criminal investigation, and/or impeachment. That vulnerability is likely to be greatest, in turn, where the Administration can be shown to engage in Nixonian abuse of government power to suppress information in its own interest.

A defeat of the Bush administration on the right of Congress and the public to know what the government is doing can be the starting point of a broader effort to establish institutional and cultural vehicles for controlling executive power -- in short, for a transition to democracy.


Tagged as: constitution, crisis, documents, congress, white house, democrats

Jeremy Brecher is a historian and co-editor with Brendan Smith and Jill Cutler, "In the Name of Democracy: American War Crimes in Iraq and Beyond" (Metropolitan/Holt). and is a co-founder of Brendan Smith is a legal analyst and currently co-director of Global Labor Strategies and UCLA Law School's Globalization and Labor Standards Project.

With all of what been written about the Administration of George Bush’s expansion of U.S. Presidential authority to surveillance and to imprison people, I can’t avoid wondering if he had some role in the chain of commands leading to my August 5, 2006 ambush, given my writings against that Nationals Ballpark in Washington, D.C. along South Capitol Street

His web site clearly indicates his pride in his accomplishment of throwing that first ball at the Washington Nationals 1st season in 2005 at R.F.K. Stadium.

Of course with this administration's secrecy, as written into the so-called "PATRIOT" act, how can his role, and that of his successors (or bosses) in such affairs, ever be known?

Monday, January 08, 2007

Data Rape of the Masses

Anything electronic, thanks to the technological feasibilities and the government’s clear desire to use

The U.S. government does this in clear violation of the US Constitution’s 4th Amendment’s prohibition against searches without warrants upon probable cause from a judge.

The U.S. government does this without any stated specific need. Rather, they make generalized statements about “national security”, as if it were a great secret that anything electronic can be easily tapped, and such realities as cell phones being useable as real time tracking devices.

Though spying domestically through such government entities as the FBI (Federal Bureau of Investigation, the NSA (National Security Agency), and the CIA (Central Intelligence Agency), and routinely doing so by going through the proper legal channels to obtain search warrants through intelligence courts which generally grants such search warrant requests. the U.S. government now seeks to eliminate the warrant requirement.

NSA warrantless surveillance controversy

Main article: NSA electronic surveillance program

Soon after the September 11, 2001 attacks (or perhaps earlier[9]), U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls of a person in the United States without obtaining a warrant from a FISA court either before or after the surveillance. The complete details of this authorization are not known, but it is believed to cover telephone calls involving a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates and with one party to the call outside the United States. The legality and extent of this authorization is the core of the controversy. That the NSA maintained electronic surveillance on communications between persons in the United States and suspected terrorists outside the United States without obtaining a warrant was affirmed by President Bush after it was revealed in the press. On May 22, 2006, it was reported by Seymour Hersh and Wired News that under this authority, the NSA had installed monitoring and interception supercomputers within the routing hubs of almost all major US telecoms companies capable of intercepting and monitoring a large proportion of all domestic and international telephone and Internet connections, and had used this to perform mass eavesdropping and order police investigations of tens of thousands of ordinary Americans without judicial warrants.[10][11]

Public knowledge of this program promptly led to a major national controversy over such issues as:

· Legality of warrantless electronic surveillance of U.S. persons and on citizens' right to privacy.

· Legality of mass surveillance in the United States.

· Constitutional issues concerning the separation of powers.

· The effectiveness[12] and scope[13] of the program.

· The legality of the leaking and publication of classified information.

· Implications for U.S. national security arising from the disclosure.

· The Unitary theory of executive power that can allegedly supersede statutes such as FISA passed by Congress

The Administration's position is that President Bush's authority to ignore FISA and approve such surveillance programs personally, stems from two sources:

· the September 18, 2001 Congressional Joint Authorization for the Use of Military Force, and/or

· his inherent powers as described in Article Two of the United States Constitution, Section Two.

The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures,[citation needed] although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities.[citation needed] The President had said prior to this, that Americans' civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.[10] However, it seems necessary to take such statements cautiously, given that the Administration considers its current program also to be conducted pursuant to applicable law; the meaning that might be attributed to such a statement is not necessarily the meaning that would be attributed in the light of more detailed information.

According to one source, historically (prior to the above mass expansion):

"[O]fficials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials." [11]

History of wartime warrantless surveillence in the USA

Main article: Warrantless searches in the United States

The administration has compared the NSA warrantless surveillance program with historical wartime warrantless searches in the United States, going back to George Washington.[14] Critics have pointed out that Washington's surveillance occurred before the existence of the U.S. Constitution, and the other historical precedents cited by the administration were before the passage of FISA, and therefore did not directly contravene federal law. [15] Abuses of electronic surveillance by the federal government led to reform legislation in the 1970's.[16] Advancing technology began to present questions not directly addressed by the legislation as early as 1985.[17]

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA. [18] [19] These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorized his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

Legal issues

The debate surrounding President Bush's authorization of warrantless surveillance is principally about checks and balances and separation of powers. Some lawyers believe the ultimate issue of legality is largely unknowable until the full details of the NSA surveillance operation are known; others, like Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, point out that FISA clearly makes the wiretapping illegal[20], and that the president's own admissions already constitute sufficient evidence of a violation of the Constitution and the criminal penalties of FISA, without requiring further factual evidence; and still others, like John Schmidt, former Associate Attorney General, [21] Douglas Kmiec, chair of Pepperdine Law School, and John Eastman, Chapman Law Professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, claim either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war (although FISA explicitly states that it applies in a modified form in wartime); see "Third party legal analysis" below. The American Bar Association, of which more than half of all lawyers in the nation are members, expressly condemns the program as a blatant violation of the law.

As a general rule, the Supreme Court has consistently held since Katz v. United States (1967), that the monitoring and recording of private conversations constitutes an "unreasonable search and seizure" barred by the Fourth Amendment.

There are five main areas of legal issue: FISA and FISA oversight issues, constitutionality issues, the extent of authority created by the Authorization of Use of Military Force (AUMF) by Congress, issues relating to the program's classified nature, and admissibility of evidence obtained from the program.

FISA issues

The 1978 Foreign Intelligence Surveillance Act defines the Justice Department's authority to conduct physical and electronic surveillance for "foreign intelligence information". FISA provides two mechanisms to perform searches. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". 50 U.S.C. §1802(a)(1). [22] FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law but not authorized by statute. FISA defines a "foreign power" as a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. FISA limits its use against US persons who are citizens, foreign resident aliens of US corporations. Finally, FISA applies to surveillance whose significant purpose must be for gathering foreign intelligence information, which is information necessary to protect against actual or potential grave attack, sabotage or international terrorism.

Sufficiency of FISA

On the December 19, 2005, U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:

As explained above. the President determined that it was that was very necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

Fourteen constitutional scholars and former government officials[23] wrote a response dated January 9, 2006 to the Department of Justice letter, and transmitted it to Chairs and Ranking Members of the House and Senate concluding that "the Bush administration's National Security Agency domestic spying program... appears on its face to violate existing law." [12]

An excerpt from their letter:

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.

Wiretapping without warrants and FISA emergency authorizations

On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrant less domestic surveillance of United States citizens." An excerpt of the proposed Leahy-Kennedy resolution follows: [24] [25]

Whereas Congress created the FISA court to review wiretapping applications for domestic electronic surveillance to be conducted by any Federal agency;

Whereas the Foreign Intelligence Surveillance Act of 1978 provides specific exceptions that allow the President to authorize warrantless electronic surveillance for foreign intelligence purposes (1) in emergency situations, provided an application for judicial approval from a FISA court is made within 72 hours; and (2) within 15 calendar days following a declaration of war by Congress;

Whereas the Foreign Intelligence Surveillance Act of 1978 makes criminal any electronic surveillance not authorized by statute;

Whereas the Foreign Intelligence Surveillance Act of 1978 has been amended over time by Congress since the September 11, 2001, attacks on the United States;

Whereas President George W. Bush has confirmed that his administration engages in warrantless electronic surveillance of Americans inside the United States and that he has authorized such warrant less surveillance more than 30 times since September 11, 2001;

On January 27, in response to growing criticism, the Department of Justice released an informal four page document titled The NSA Program to Detect and Prevent Terrorist Attacks - Myth vs Reality defending the NSA program. It argued that "[t]he NSA activities described by the President are consistent with FISA" on the grounds that:

· FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute.

· The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President’s well-recognized, inherent constitutional authority. FISA can and should be read to avoid this.

Separation of Powers and Unitary Executive theory

See also: Separation of powers, Unitary Executive theory

However, the authorization granted by President Bush to the NSA apparently uses neither FISC approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power was granted by the Constitution and by a statutory exemption, as is advocated by the Unitary Executive theory using the interpretation of John Yoo et al. He argues that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Article II of the Constitution of the United States of America makes the President "Commander in Chief of the Army and Navy of the United States," and also mandates that he "shall take Care that the Laws be faithfully executed", where "the Laws" refer to federal statutes passed by Congress. Article I vests Congress with the sole authority "To make Rules for the Government and Regulation of the land and naval Forces" and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The president is an officer of the government of the United States, so is subject to Congress's sole authority to make all laws for carrying the powers of the president into execution, while the president is specifically charged with the duty to take care that those laws be faithfully executed.

One court has said that the President's Commander-in-Chief authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations apply to foreign intelligence has been examined by few courts. It is also uncertain whether the allegation that surveillance involves foreign parties suffices to extend law governing the president's military and foreign affairs powers to cover domestic activities. The Supreme Court voiced this concern in Hamdi v. Rumsfeld, ruling that "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens."

The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed report on January 5, 2006 regarding the NSA electronic surveillance of communications, titled "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" and concluding that[26][27][28]

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information.

So what shall Congress do?

Shall "Democrat" control of the U.S. Congress lead to a meaningful rolling back of the Bush Administration's assault on domestic privacy?

Or ...?