http://writ.findlaw.com/lazarus/20051222.html

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Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts


By EDWARD LAZARUS
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Thursday, Dec. 22, 2005

Not so long ago, the debate over the constitutional doctrine of separation of powers in this country was a matter of fine distinctions.

In 1989, for instance, some worried that Congress' decision to have the executive put a few members of the judicial branch on the U.S. Sentencing Commission raised a separation of powers issue. These executive-appointed judges, after all, would arguably act as legislators - in that the Commission drafts the U.S. Sentencing Guidelines, for Congress' approval.



The Supreme Court, in Mistretta v. United States, approved the arrangement despite the separation-of-powers objection. But critics still worried. Yale Law Professor Stephen Carter eloquently explained why: Although permitting a few judicial officers to accept executive appointment to a non-judicial commission might not look too ominous, the Constitution's separation of powers was the nation's primary defense against tyranny. And tyranny, Carter concluded in an oft-quoted line, does not overwhelm a nation in an instant. No, he wrote, "tyranny creeps."

Lately, though, tyranny runs like a cheetah. How quaint concerns such as those of Mistretta's critics seem after the events of the last few years.

How quaint they seem, especially, after last's week revelation that President Bush has spent the last four years authorizing and re-authorizing the warrantless wiretapping of domestically originating phone calls made by American citizens, even though Congress appears to have made such wiretapping a criminal offense when it passed the Foreign Intelligence Surveillance Act (FISA) in the 1970s.

How a Bloated Executive Has Sapped Power From Congress and The Federal Courts

Over the past four years, the executive has repeatedly tried to make sure the federal courts and the legislative branch have no oversight at all as to whom it detains, on what ground, for how long, and under what conditions -- including conditions of extreme torture such as waterboarding.

The Bush Administration took power from the courts by spuriously arguing that Guantanamo detainees had no access to the Great Writ of habeas corpus - a contention that the Supreme Court handily rejected, but that kept the issue tied up in litigation for years. It would have been more honest for the Administration to suspend habeas corpus for these prisoners, and accept the brunt of public criticism for doing so.


The Bush Administration has also tried to moot cases before courts can rule on crucial issues of detention -- allowing the supposedly dangerous American citizen Yaser Hamdi to go live in Saudi Arabia, and indicting American citizen Jose Padilla on charges very different from the "dirty bomb" allegations that supposedly justified detaining him for years.

And the Bush Administration took power from Congress by acting as if the Congressionally-ratified Geneva Convention does not apply. Meanwhile, its CIA has reportedly administered a network of secret foreign prisons -- unbeknownst to the courts and, it seems, to Congress (or much of it).

Now, once again, the President has bypassed the federal courts and Congress entirely - with the Executive refusing even to avail itself of the separate, secret FISA court convened by Congress as the only entity with the power to authorize clandestine surveillance of espionage or terrorism suspects.

Importantly, the question now before the country is not some marginal blurring of lines between the three departments of government. The question is whether the Executive department will overwhelmingly dominate the other two - and, especially, the federal courts. President Bush claims Congressional leaders, at least, knew of his warrantless wiretapping, but no court was told.

The Bush Administration has taken the position that it has inherent constitutional authority to exempt itself from all legal constraint when the President invokes his commander-in-chief authority to respond to external national security threats. Surely, this position is wrong.


The Executive's Tactics: "Paper," Conceal, Trot Out the Paper

The Administration's M.O. in all such initiatives seems to be consistent. Within the Executive Branch, it uses the Department of Justice's Office of Legal Counsel - which used to serve as a neutral arbiter on questions of Executive power - as a veritable department of justification: a place where Executive Branch ideologues concoct defenses, no matter how one-sided or incomplete, for every act the President would like to undertake. It is from OLC, for instance, that the notorious torture memos came - and now, the justification for warrantless wiretaps.

In this way, the President can always claim that he was acting within his legal authority as the Justice Department itself defined it. But as the attorneys currently staffing OLC are not inclined to see any constitutional constraint on Presidential power at all, it is absurd to rely on their supposedly drawing the boundaries of the authority within which the President can operate.

In their view, there are no such boundaries. Yet they have produced lengthy analyses to "paper" this simple, incredible view, which might have been expressed in a single naked, unpersuasive sentence.

Next, the Administration shrouds its conduct in a thick veil of secrecy so that not only us ordinary folk, but even high-ranking Congressional officials will have no idea what power the President is actually exercising. And of course, the Administration has terrified potential whistleblowers through threats of investigation and prosecution. That means two more potential groups who might have argued for, or set, boundaries are silenced: Members of Congress, and the small group of those last few conscientious persons within the Administration who still believe it ought to comply with the Constitution, and are willing to say so.

Then, when the Administration's actions finally come to light, its officials trot out whatever legal justifications its lawyers have cooked up. In the past, these justifications have either been rejected by the courts (as when the Supreme Court emphatically rejected the Administration's view of its authority over enemy combatants) or exposed as astonishingly weak (as with the notorious "torture memos"). But OLC did, at least, give the Administration some paper to wave around, with lawyers' names on top.

These "legal" explanations are also invariably accompanied by an insistence that everything the Administration is doing is a necessary component of the amorphous war on terror, and that the American people can and should trust their President to do the right thing. But this argument simply can't justify the Executive's usurpation of power: After all, America has faced crises before without deciding to revert to monarchy.


The Wiretapping: Different Issue, Same Modus Operandi

This latest episode - of warrantless wiretapping - exhibits the same m.o. The Administration is not yet releasing its internal legal analysis for why the President could flout Congress's scheme for authorizing secret surveillance of terrorism suspects. But the contours of this analysis are becoming clearer.

As a first line of defense, the Administration is claiming that Congress, when it enacted its Authorization of the Use of Military Force (AUMF) in the immediate aftermath of 9/11, gave the President a free pass to end-run the FISA court.

This argument is risible. As a general matter, the law strongly disfavors such implied repeals of existing statutes: If a law is meant to decimate prior law, it ought to say that's what it's doing, and generally, it does. And especially when the prior law relates to constitutional rights - here, Fourth Amendment rights - its repeal ought to be crystal clear, so that repeal can immediately be challenged in court.

In addition, nothing in the debate over AUMF suggests that Congress had anything like the NSA surveillance program in mind when it gave Bush the go-ahead to attack Al Qaeda in Afghanistan. After all, that decision was a no-brainer, at the time. What Congressperson was gaming out what would happen years ahead? And again, where in the silence is authorization found?

By this logic, the Administration could invoke the AUMF to override pretty much any federal statute. And that's surely wrong.

Moreover, on a more specific level, Congress purposefully limited the AUMF to the use of force against persons directly connected to Al Qaeda. From what has emerged, the Administration's secret wiretapping program appears to cover a multitude of persons who would not qualify as targets under the AUMF - and, thus, the AUMF rationale falls of its own weight.

The President's real argument, however, is not based on the AUMF, but - once again -- on what he claims is his inherent constitutional powers as commander-in-chief. Here, the President's claim seems breathtaking in scope. He appears to be claiming that the President may disregard every law as he - in his own discretion - deems necessary, to fight a war on terror that has no clearly defined scope, nor any clearly defined foe, nor any knowable end point.

Furthermore, under this theory, it would appear that Congress has no power to curb the President's authority -- because the President alone has the power to define the terrorist threat and the means necessary to combat it.

This is not a constitutional design I recognize. Wasn't one of the Framers' primary concerns to avoid the concentration of such power in a king-like chief executive? Didn't the Framers believe that such a concentration of power was deeply corrupting? And hasn't history only reinforced those lessons?

Revision of the Law May Be Necessary, but Ignoring and Circumventing It Was Not

This issue, it's important to note, is not a political one, and should not be divisive. It may be that this country needs to revise its laws to respond effectively to terrorist threats - and that is the policy issue on which right and left will predictably differ, just as they have on the USA Patriot Act.

But what we all should be able to agree on, is that the Executive's simply opting to act illegally -- without even asking its own same-party Congress to change the law - is wrong.

Perhaps FISA needs to be revamped. Notably, it already contains exceptions for emergencies and the FISA court has a long history of working cooperatively with the intelligence agencies, But some say that the kind of "data mining" the government absolutely must do won't pass muster under current FISA court standards, and that therefore, FISA must be amended.

I don't know whether these claims are true; I'm willing to hear arguments on both sides. It's the missing debate on this, that is the national shame here.

Unilateral Executive Power Is Tyranny, Plain and Simple

I might even accept, for the purposes of argument, that, in the panicky aftermath of 9/11, it was understandable for the President to act unilaterally to protect against a potential second-wave attack, regardless of constitutional limits.

But over four years have passed, and there has been copious time for deliberation and, if necessary, Congressional action. In this context, it simply cannot be that the President, acting alone, has the permanent authority he now claims to override a carefully-wrought congressional scheme for fighting terrorism, and enact his own set of secret rules.

Naturally, such a scheme implicates civil liberties, as enshrined in our Constitution. It is not the President's job, alone, to make the nation's trade-offs between security and privacy. Congress ought to legislate, and if it goes too far, the Supreme Court ought to make sure its legislation stays within constitutional bounds.

But even worse, such a scheme threatens basic democratic principles. This Administration wants virtually unlimited power with essentially no accountability. I might almost be able to stomach Bush's "just trust me" claims of Executive power, if the President could be made truly accountable for his decisions down the road. But Bush wants the power with no public debate and a minimum of public disclosure.

I wouldn't trust any Administration with such a blank check. And this isn't just any Administration. It's an Administration with a deeply troubling history of mistakes and obfuscation, an Administration that seems to expand its definition of terrorism however it finds convenient, an Administration that brooks none of the internal dissent that might check authoritarian impulses.

Against that backdrop, the new revelations of warrantless wiretapping, and the Administration's latest set of explanations, sound less like a plan to fight terror than like tyranny's engines, raring to go.
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Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

I wanted to start a thread dedicated to this subject because in Jan. '06 the Senate Intelligence and Judiciarary Commitees are going to be holding investigations and hearings.

The hearings will be contentious, I'm sure, but with all the conservative lawyers and Constitutional scholars already saying the President broke the law, I think we may be in for a wild ride.

The Fitzgerald investigation, the Delay indictment, the Ken Lay trial, the Abramoff cooperation with the proscecution leading to many indictments, the spies in the Pentagon, all should come to a head in the beginning of the year. We may see an implosion of the GOP in DC and in a few states. Ohio is one for sure.

I'd like to hear any justfications from the wingers here for warrantless wiretaps and searches, if there are any.

Crypto man

After reporting on America's spying operations for 25 years, James Bamford is speaking out against Bush's FISA runaround. He says the wiretapping is illegal.

By Michael Scherer

Dec. 23, 2005 | Not many journalists get their calls returned from the National Security Agency, the world's largest and most secret spy shop. Even fewer get private campus tours of Crypto City, the NSA's sprawling campus in Maryland where the computer systems are measured not by the megabyte, but by the acre. And almost no one outside the military-intelligence complex gets invited to the home of former NSA head Gen. Michael V. Hayden to have a family dinner.

But then James Bamford is not just any reporter when it comes to the NSA. He is the journalist who introduced the agency to the world with his explosive 1982 NSA history, "The Puzzle Palace." With obscure but public information, he bargained his way into the secret core of the U.S. intelligence establishment and revealed the scope of its reach, from its listening posts in the Turkish highlands to its omniscient relay satellites.

By 2001, when he published the second book on the agency, "Body of Secrets," the NSA brass appeared to have accepted him as a sort of unofficial ambassador to the general public. "The irony is that they tried putting me in jail after 'Puzzle Palace,' and they had a book-signing for me after 'Body of Secrets' came out," says the author, a balding, soft-spoken 59-year-old who wears his mustache neatly trimmed.

That comity faces new strain now that President Bush has admitted to ordering warrantless NSA wiretaps of American citizens, an admission that blindsided Bamford just as it shocked many in Congress. While politicians bicker over legal shades of gray, Bamford believes the president clearly broke the law, and he has called for a special prosecutor to investigate. "What you have here is the administration going around the only protection the public has from the NSA, and doing it on their own," Bamford told CNN during a marathon of interviews for MSNBC, NPR, C-SPAN, CBS News and NBC News. "That's how Richard Nixon got in trouble, and one of the reasons he left office."

For Bamford, there is only black and white when it comes to the Foreign Intelligence Surveillance Act, a 1978 law that specifically requires warrants for any NSA wiretapping of U.S. citizens. "If you want to eavesdrop on U.S. citizens, you go to court. If you don't, you go to jail," Bamford says. "If you want to change the law, you go to Congress."

Bamford's outrage stems, in part, from having been misled by agency officials. For years, he says, his contacts at the NSA repeatedly assured him that the agency was strictly following the letter of the law, even after Sept. 11. At the same time, President Bush assured the American people that "nothing has changed." "When we're talking about chasing down terrorists," Bush said in one speech, "we're talking about getting a court order before we do so." Hayden, who became the deputy director of national intelligence, also reassured Congress, calling NSA "the most aggressive agency in the intelligence community when it comes to protecting U.S. privacy."

"I interviewed a lot of people at NSA, including the director a number of times. The impression I always got was they were keeping as far from the edge as they could in terms of what the law is," Bamford says. It was a message he believed and put in his books. "I went out of my way to defend NSA," he says. "I said they were not going back to the bad old days."

Those bad old days, when Nixon spied on his enemies and J. Edgar Hoover ordered illegal break-ins, drew Bamford's attention to the agency in the first place. During the 1960s and '70s, the NSA launched vast spying operations on American citizens over domestic concerns. One program, called Minaret, monitored the communications of Vietnam War protesters like Joan Baez and Jane Fonda. Another program, called Shamrock, monitored American cables sent overseas. After the Watergate scandal, Congress passed the FISA Act and ordered other reforms to end such abuses. "Back then there wasn't a law. The NSA saw itself as alegal -- it was under the law," says Bamford. "Now there is certainly a law. The FISA statute is as absolute as you can get."

The son of an insurance executive from Natick, Mass., Bamford first worked with intelligence during the Vietnam War, as a Navy analyst stationed in Hawaii. After leaving the military, he went to college and law school on the G.I. Bill, before returning to Washington, D.C., where he heard rumors of a secret investigation of the NSA by the Justice Department. On a hunch, he filed a request under the Freedom of Information Act regarding the Justice Department's investigation, and about a year later he got a windfall of documents, including a summary of the NSA investigation and a report on the Central Intelligence Agency's electronic surveillance abilities. He decided to write a book. "I hadn't written a thing in my life except legal briefs in law school," Bamford says.

When the NSA found out, the agency's brass demanded that he return the documents, but he refused, going so far as to sneak away from a meeting with NSA officials and his lawyer. He found more documents at the George C. Marshall research library in Lexington, Va. -- documents the agency later stripped from the shelves. Meanwhile, the NSA opened a file on him, under the code name Esquire, a fact he discovered through another FOIA request. He negotiated for a tour of the agency's secret campus by promising not to use the most sensitive documents he had acquired.

His first book, when it finally came out, was a bombshell, exposing in a single narrative an agency that the government had long tried to conceal. "In terms of NSA's organizations and activities, that really was a groundbreaking book," says Jeffrey Richelson, a senior fellow at the National Security Archive, a nonprofit research institution. "That has made, certainly, things easier for other people."

At the time, the NSA was little more than an obscure footnote in history books and a blip in congressional investigations. A few months after the book came out, Bamford remembers meeting Bill Bradley, then a U.S. senator from New Jersey, on a car ride to a television studio. When Bamford mentioned the NSA, Bradley looked confused. "He said, "What's that?'" Bamford remembers. Once the camera's started rolling, Bamford joked on camera that the NSA was so secretive, even Bradley didn't know about it. "It really pissed him off. He took a separate car back to the hotel," Bamford says.

Over the coming decades, he became a magazine freelancer and later a top investigative producer for ABC's "World News Tonight." He broke news of the investigation into Cold War spy Felix Bloch, a State Department employee, and wrote a New York Times Magazine cover story about his friendship with Robert Hanssen, the CIA agent who fed secrets to the Soviet KGB. His 2001 book, "Body of Secrets," was less well received than the first by intelligence experts, in part because of the high expectations Bamford had established.

"I'm sorry that he hasn't made greater headway," says Bill Arkin, a national security writer, who blogs for the Washington Post, noting that intelligence reporting is extraordinary difficult. The New Yorker's Seymour Hersh, another of the small cabal of reporters who report on top-secret "black programs," says he too was a fan of "Puzzle Palace," but disagreed with some of the theories in the later book. But "would I hire him if I owned a newspaper?" Hersh quips. "Sure."

Over 25 years, Bamford has tracked the dramatic evolution of NSA's technological abilities. He says that such advances both increase the civil liberties danger and the likely pressures to skirt the FISA process. When the FISA warrants were first established, computers were still in their infancy and much of communication was analog. "I could very easily see that they would say that we have a new advance in data mining, and we need to speed up the process, the FISA court is too slow," Bamford says. Still, he won't accept that as an excuse. "There is a law there," he says. "If you just read the law, it's very clear."

The law also has a purpose. Twenty-three years after publishing "Puzzle Palace," Bamford still likes to quote Sen. Frank Church of Idaho, who warned in 1975 of the vast powers of NSA's signal intelligence operation. "That capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversation, telegrams, it doesn't matter," Church declared then. "There would be no place to hide."

Felony.

If one takes the rather startling revelations (to most) of Bamford’s books, the Puzzle Place and Body of Secrets plus whatever else they can ferret out of the public record in regard to NSA they will not still fathom the formidable abilities of that agency. It is, IMO, a necessary agency in today’s world and far less abusive than the CIA has proven over the years to be; but It MUST adhere to Constitutional proscriptions on privacy/ civil liberties or we are all going to be in trouble in future.

HMMM.. a reasonable response. Have you gone soft for Christmas?

The Issue is Globalization and Technology, unlike the 'borrowed' 900 FBI files in Hillary Clinton's quarters.

Bush wiretapping involved some U.S. calls

WASHINGTON, Dec. 21 (UPI) -- U.S. security officials say some of the wiretaps authorized by President George Bush without warrants accidentally monitored domestic telephone calls.

The Bush administration is under scrutiny for the practice of the National Security Agency circumventing the judiciary in ordering anti-terror wiretaps of international calls.

However, officials who asked not to be named told The New York Times in several cases, someone using an international cell phone was thought to be outside the United States when in fact both people in the conversation were in the country.

Telecommunications experts say the issue illustrates troubling logistical questions, as communications networks are increasingly globalized, and it is sometimes difficult even for the NSA to determine whether someone is inside or outside the United States when making a cell phone call or sending an e-mail message.

Breaking News

More on the NSA Wiretaps
Dale Franks December 21, 2005

I note today that the reasoning in my previous post on the NSA wiretaps is receiving some support from unexpected quarters, from people who I don’t think can be considered shills for the Bush Administration. John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. U of Chicago Law Professor Cass Sunstein is one of the country’s premier liberal law professors. In both cases, they reason similarly to me in analyzing the issue.

In a Chicago Tribune op/ed today, Mr. Schmidt writes that, in his opinion, which was, by the way, the opinion of the Clinton justice department, the president has the inherent authority to conduct such wiretaps—or even searches.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, Deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

And, of course, as we learned today, both President Clinton and President Carter authorized their administrations to undertake warrantless wiretaps, with President Clinton actually authorizing warrantless physical searches of property as well, for foreign intelligence gathering purposes.

Meanwhile, today, Prof. Sunstein,writing at the University of Chicago's faculty blog, states that Attorney General Gonzalez's position that the Authorization for the Use of Military Force (AUMF) against Al-Qaeda provides the requisite statutory authority for the NSA surveillance is entirely plausible, especially in light of the Hamdi ruling.

According to CNN, Attorney General Gonzales recently said, "There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in" this kind of "signal intelligence of our enemy." The Attorney General added, "We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11, constituted additional authorization for the president to engage in this kind of signal intelligence."
I want to suggest here that this last statement is more plausible than it might seem at first glance. If the statement is indeed correct, some legal questions certainly remain, but at least we will have made progress.

The authorization for the use of military force (AUMF) says, "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants—notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.

The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates—as indeed he has said—then the Attorney General's argument is entirely plausible.


The president is the constitutional Commander in Chief (CINC) of the armed forces. The specific powers of the CINC are not explicitly enumerated in the Constitution, so we are left to fend for ourselves in determining what those powers are. But it is certainly possible to draw up a list of powers that, especially in wartime, the president must logically be said to have. One of those powers, and one that is certainly an integral part of the president's ability to direct the course of the war, is to collect military intelligence about the enemy, his capabilities, intentions, movements, etc.

More.....

Bart--- what are you doing? Giving Sherry Visions of Sugar Plums dancing in her head for Christmas?

DREAM ON!!

I posted this yesterday but the same bogus crap keeps being posted.



"A column in this morning’s Chicago Tribune by John Schmidt argues that Bush’s secret domestic surveillance program was legal. (Byron York posted a portion of the piece on the National Review website under the title “READ THIS IMPORTANT ARTICLE“) It features this selectively edited excerpt from a 2002 decision by the FISA appeals court:

“All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence…We take for granted that the president does have that authority.”

Actually, the quote doesn’t begin with the word “all”; it begins “The Truong court, as did all the other courts…” The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, “Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute.

This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, “where the president is acting contrary to congressional authority…the president’s authority is at its lowest ebb.”

The article also conveniently omits the two sentences after the excerpt:


It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse…

All the court is saying here is that whether FISA imposes limits on the President’s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, “[T]he question before us is the reverse.”

The Bush defenders have no defense except to selectively edit what they want articles to show. They are lying.

HI ODA.

Welcome to no spam.

Read at your own risk.

Cheers.

Just another little slip to get to getting to people of US, if they don't like what you say or do, they will get to you. If they get by with this, they will do it with something else, this country is beginning to be run like Putaun or ever how you spell it. Amercians had better start pulling together so our soldiers will not be fighting for nothing. While they are fighting for Iraq's freedom which will never happen, our country is going under dictatorship.

Hi, i'm beginning to get this thing worked out, i've missed c-span group, we've certainly got a lot to talk about and thanks for the welcome.

Hi Oda... welcome aboard. :~)

HI ODA.

Welcome to no spam.

Read at your own risk.

Cheers.

Oopps; double clicked.

HI ODA!!

Welcome back! So nice to have you here! We really needed another really nice person, so many jerks so few nice, WELCOME!

Posted on Fri, Dec. 23, 2005



Some fear eavesdropping could undermine work of spy agency

BY WARREN P. STROBEL AND JONATHAN S. LANDAY
Knight Ridder Newspapers

WASHINGTON - The White House decision to order surveillance of international phone calls by U.S. citizens without a warrant violated longstanding practices and could undermine a key U.S. intelligence agency that's critical in the struggle against terrorists, former senior intelligence officials and other experts said this week.

The super-secret National Security Agency, which eavesdropped on the Soviet Union's leaders and scored other intelligence coups during the Cold War, has spent three decades recovering from domestic spying scandals in the 1970s.

Now, with its electronic ears and vast computer banks turned primarily to intercepting suspecting terrorists, the officials said they fear that the NSA once again will bear the brunt of congressional scrutiny and public outrage, complicating its mission.

"The damage it's done to NSA's reputation is almost irreversible in my view," said a longtime top intelligence official with intimate knowledge of the agency's workings.

Those concerns are part of a broader backlash in the intelligence community against some of the Bush administration's tactics in the war on terror.

Bush, Vice President Dick Cheney and others argued that the president has wartime powers to establish military tribunals, hold detainees, use harsh interrogation techniques and conduct domestic surveillance.

But a growing number of current and former intelligence officers argue that these tactics have backfired and left the nation's spy agencies troubled and vulnerable to charges of abuse.

The officials said that morale in the CIA's Operations Directorate, the spy service, is plummeting and that some senior officials are leaving or planning to leave and others have declined to take assignments.

Some clandestine service officers, they said, are especially concerned that a political and public backlash against a secret White House directive that authorized the CIA to apprehend suspected terrorists in foreign countries and jail them in secret overseas prisons or send them to third countries for interrogation could damage the agency in much the same way that the spy scandals of the 1970s did.

"There's a lot of discomfort about the renditions," as the practice is called, said one of the officials. "History shows that we pay the price for doing what the White House tells us to do." The official and others quoted in this story spoke on condition of anonymity because they fear reprisal for criticism.

The NSA, based in Fort Meade, Md., is the nation's largest intelligence agency, with more money and people than the CIA. Part of the Defense Department, it intercepts, decodes and analyzes phone calls, e-mails, faxes and other communications, searching for terrorist plots, weapons deals, drug trafficking and other threats. It also supports combat operations in wartime.

Counterterrorism officials said it's played an invaluable role in battling al-Qaida and related groups, because intercepting their communications is often the only way to pre-empt them.

In the public - and Hollywood's - mind, the agency is often seen as an ominous Big Brother, an image best epitomized by the 1998 Will Smith movie "Enemy of the State."

The reality, former officials and NSA experts said, is far different. Under a 1978 law called the Foreign Intelligence Surveillance Act, elaborate procedures were put in place to ensure that the agency doesn't routinely spy on Americans.

In April, then-NSA Director Gen. Michael V. Hayden assured the Senate Intelligence Committee that the NSA is "the most aggressive agency in the intelligence community when it comes to protecting privacy."

Hayden, now the deputy director of national intelligence, defended Bush's warrant-less monitoring order during a White House briefing Monday. He was unavailable for further comment, his spokeswoman said. The NSA also declined comment.

But the former top officials said the recently revealed program, which sidestepped a secret court, violated longtime agency practices. Those were established after the revelation of the NSA's earlier abuses in operations code-named Minaret and Shamrock.

After the 1978 law was passed, the NSA issued an internal directive known as U.S. Signals Intelligence Directive 18, barring agency employees from eavesdropping on Americans in the United States, with few exceptions.

NSA employees are required to re-read the document every six months and sign a form stating that they've done so.

"As a Signals Intelligence (SIGINT) officer, it is continually drilled into us that the very first law chiseled in the SIGINT equivalent of the Ten Commandments is that `Thou shall not spy on American persons without a court order from FISA,'" said former NSA analyst Russell Tice.

If the NSA inadvertently intercepts the communications of a U.S. citizen or communications that mention a U.S. citizen, they are supposed to be destroyed. There are a handful of exceptions.

Intercepts of U.S. citizens that aren't destroyed go into a special database - code-named "Body Surf" - and the real names are masked, available only to a handful of people.

Bush, Hayden and Attorney General Alberto Gonzales have defended the program to eavesdrop on calls without warrants, saying it involves only individuals suspected of associating with terrorist groups, lasts for a short time and is regularly reviewed.

The former officials and experts said that while the revelations so far come nowhere near the abuse of a generation ago, they fear that the public taint will be the same.

Former NSA Director Bobby Ray Inman, who helped push through the 1978 FISA law, said he worried that the agency is being unfairly tarred, with a "huge" impact on morale.

"They only act in accordance with law, and an executive order is law," Inman said, referring to the order Bush signed permitting warrant-less domestic surveillance. But he added: "Frankly, my experience over the years is that politicians don't worry about" the impact of their actions on intelligence agencies' morale.

"I've talked to a number of people over there since this came out ... and there is none of them that are happy about this and many who are upset," said author James Bamford, whose book "Puzzle Palace" was the first in-depth look at the NSA.

The revelations have hurt the NSA's morale because "this is an extremely deceptive program," Bamford said.

"Only a few people were told about it," he said. "Everyone else in the agency went around telling people that they don't spy on Americans. Around their back, they find out that the director has authorized that."

---

© 2005, Knight Ridder/Tribune Information Services.


--------------------------------------------------------------------------------
John Walcott contributed.

I'm not sure about Hayden but I know for sure that no one can trust either Bush or Gonzalez to do what's right or legal. They have proven beyond a shadow of a doubt that they cannot be trusted. They have - 0 - repect for law and they will use anything for political gain.

The way Bushco retaliates against ANYONE who disagrees with whatever decisions made makes me think the reason for NO warrant is because they don't want a paper trail on WHO is being listened to. ala Nixon.

This is an excerpt from an editorial in Barron's magazine, the site is pay for view so I can only offer this excerpt:

Barron’s: Congress Should Consider Impeachment…


Barron's | THOMAS G. DONLAN | December 24, 2005 at 11:33 AM



From barrons.com

[...] Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law. ...



http://www.huffingtonpost.com/thenewswire/#a012841

I found a link to the entire Barron's editorial. (owned by Wall St. Journal)

EDITORIAL COMMENTARY

Unwarranted Executive Power

The pursuit of terrorism does not authorize the president to make up new laws
By THOMAS G. DONLAN

Unnatural Disaster

AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers.

It was not a shock to learn that shortly after the Sept. 11 attacks, President Bush authorized the National Security Agency to conduct intercepts of international phone calls to and from the United States. The 1978 Foreign Intelligence Surveillance Act permits the government to gather the foreign communications of people in the U.S. -- without a warrant if quick action is important. But the law requires that, within 72 hours, investigators must go to a special secret court for a retroactive warrant.

The USA Patriot Act permits some exceptions to its general rules about warrants for wiretaps and searches, including a 15-day exception for searches in time of war. And there may be a controlling legal authority in the Sept. 14, 2001, congressional resolution that authorized the president to go after terrorists and use all necessary and appropriate force. It was not a declaration of war in a constitutional sense, but it may have been close enough for government work.

Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn't last four years.

In that time, Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed.

Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA Patriot Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him.

"We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity," said Attorney General Alberto Gonzales. The Department of Justice made a similar assertion as far back as 2002, saying in a legal brief: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that Constitutional authority." Gonzales last week declined to declassify relevant legal reviews made by the Department of Justice.

Perhaps they were researched in a Star Chamber? Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.

Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.

Some ancillary responsibility, however, must be attached to those members of the House and Senate who were informed, inadequately, about the wiretapping and did nothing to regulate it. Sen. John D. Rockefeller IV, Democrat of West Virginia, told Vice President Dick Cheney in 2003 that he was "unable to fully evaluate, much less endorse these activities." But the senator was so respectful of the administration's injunction of secrecy that he wrote it out in longhand rather than give it to someone to type. Only last week, after the cat was out of the bag, did he do what he should have done in 2003 -- make his misgivings public and demand more information.

Published reports quote sources saying that 14 members of Congress were notified of the wiretapping. If some had misgivings, apparently they were scared of being called names, as the president did last week when he said: "It was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

Wrong. If we don't discuss the program and the lack of authority for it, we are meeting the enemy -- in the mirror."

http://online.barrons.com/article_email/SB...NDMyODQ0Wj.html


Impeachment is being called for by more than just Lefties now.

Any one who can trust this adm. must not lisiten to what that adm has pulled in the last yrs. They are putting fear out there so people will grab that bunch of malarky. Spying on Amercian people is against (their way of saying) the rule of law anyone remember those words. How do we. The terriosts have already won weather we want to admit it or not. They have put fear in US. and sucking the life out of the economy, this adm. is saving no one but the rich, if you think those min wage jobs they say they have gotten(calling new jobs) are going to pay the taxes to keep this country going, and illegals they let come across the boarder to take even lower wages then min jobs, think again.

what he said.

When President Bush came into offfice one of his goals was to reinstate some of the Presidential Powers given to the office by the Constitution that had been reduced by the liberal wing of the democrats when they were in power or through the activist courts.

Remember the democrats cannot get all their programs passed into law through legislation; there are not enough libs to get the vote numbers sufficient to do their bidding. They, when a democrat was in the executive office, deminished the powers of the Presidency and then they got control of the Judiciary and pushed their programs through activist judges who wish to make law from the bench rather than explicate law!

So the President is merely restoring those powers that were removed by the democrats! The first responsibility of the President is to PROTECT the USA from our foreign and domestic enemies!!!

I listened to General Powell's statement today on a replay on C=Span and he agreed with the President on doing what he did and only had one suggestion in that he said it would not "have hurt" to have given more backup reports - but than again that is catering to the liberal dems and allowing them to think they have the upper hand!

Bush's 'imperial' drift could take at
least short-term political toll

Agence France Presse, by Staff

12/25/2005 7:54:15 PM


President George W. Bush's administration has hit political turbulence that has shed light on its long-term drive to bolster presidential powers, and now is being checked by a stronger Congress. On the heels of revelations that Bush signed a secret order in 2002 enabling the National Security Agency to capture US citizens' international telephone calls and electronic mail without a court order, Bush has come under fire...

I lost a lot of respect for Powell when he held up that vial of "anthrax".

I really don't care if he thinks it's ok for the president to violate the law. It's not his decision to make.

LP... do you think that the President is above the law, or subject to it?

- On Powell we agree. Most people did respect that man and he could of resigned rather then go to the UN and held that vial up. I lost all respect for him. This president nor anyone is abouve the law and he should not be allowed to get by with it. Probably a lot more secret stuff going on that none of would even think about.

I rest better knowing that the President is trying to PROTECT the USA from our foreign and domestic enemies!

This President has done more to endanger Americans than protect us....take a look at the terrorist recruitment statistics since he ordered the invasion of Iraq.

There's no doubt about that, imo. There's more skullduggery going on than even Bush is aware of...Cheney, Rumsfeld, & the rest are pure slime.

We never should have retaliated against the Japanese after Pearl Harbor. After America entered the war Kamikaze recruitment statistics sky rocketed.

P

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LOGIC

What has he done to endanger Americans? I would rather the war be taken to the terrorist than them bring it here in our cities to us. Where do you find terrorist recruitment statistics? I would be interested in seeing them.

What has he done? He invaded Iraq, & took over the country..killing thousands & thousands of Iraqi citizens based upon a pack of lies! That, in turn, has caused the recruitment of Muslims into terrorist organizations intent upon killing Americans to literally skyrocket!

Do I need remind you that Iraq had nothing to do with 9/11? Nothing...zero...no connection. Now, thanks to Bush, Iraq is the leading terrorist state in the Middle East....that's not just my opinion...that's a fact!

His reckless actions will have violent repercussions for years & years to come. The man has put us in more danger than we were ever in before....

http://www.publiceye.org/frontpage/911/repercussions.html

http://www.anotheramerica.org/terrorist_recruitment.htm

http://pages.zdnet.com/trimb/id61.html

Japan attacked us...IRAQ DIDN'T!!!! Capice? See a difference there?

My 9 year old nephew understands the difference...pity you can't.

THe pathetic logic is trying to compare WWII with Bush's War on Terror.

you got that right.

Keeping us safer? Ha ha, what a joke.

I think the enemy for us is here in US. Seems we have to watch our own back. Remember we bombed Iraq for nothing, just on a whim. Not for 9/11.

Yes sir.

oda, how did you find the forum? Were you at the old cspan site?

Either way, welcome.

Yes i was at old c-span and loved it at the time.

A little hard to find credibility with your website. They list their biases!

Views we Oppose:

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Conspiracist Views

International Far Right Views (compiled by Searchlight)

Antiwar--but not our allies

Welcome aboard, Chris

Usually the New York Times is their bible and Dan Rather their prophet.