Tuesday, January 17

Reflections on MLK, Freedom, Gore & Gonzales

Yesterday was the 20th Anniversay the Martin Luther King Jr. Holiday. A holiday that wouldn't have even come into existence if our current Vice-President Darth Dick Cheney had his way.

On that day Bill O'Reilly spent time debating whether any of our current black leaders have been able to live up to the legacy of Dr. King. He claimed that "Farrakan is a hater...Jessie Jackson is a scammer...and Al Sharpton.... is Al Sharpton". But I think a better question is -- "Is anyone living up to the example set by Dr. King"? And I think the answer to that question is "No" - with on possible exception. Al Gore.

Al delivered a blistering speach yesterday on the subject of Freedom, which was introduced by former Rep. Bob Barr - one of the most rabid partisan Republicans during the Clinton administration - who has since become a member of the ACLU and is fighting heavily against the encrouchments on Civil Liberties he sees coming from the Bush Administration.

As we begin this new year, the Executive Branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress to prevent such abuses. [Ed. Specifically 18. USC § 2511. Interception and disclosure of wire, oral, or electronic communications prohibited]

It is imperative that respect for the rule of law be restored.

It is appropriate that we make this appeal on the day our nation has set aside to honor the life and legacy of Dr. Martin Luther King, Jr., who challenged America to breathe new life into our oldest values by extending its promise to all our people.

On this particular Martin Luther King Day, it is especially important to recall that for the last several years of his life, Dr. King was illegally wiretapped-one of hundreds of thousands of Americans whose private communications were intercepted by the U.S. government during this period.

The FBI privately called King the "most dangerous and effective negro leader in the country" and vowed to "take him off his pedestal." The government even attempted to destroy his marriage and blackmail him into committing suicide.

This campaign continued until Dr. King's murder. The discovery that the FBI conducted a long-running and extensive campaign of secret electronic surveillance designed to infiltrate the inner workings of the Southern Christian Leadership Conference, and to learn the most intimate details of Dr. King's life, helped to convince Congress to enact restrictions on wiretapping.

Yet, just one month ago, Americans awoke to the shocking news that in spite of this long settled law, the Executive Branch has been secretly spying on large numbers of Americans for the last four years and eavesdropping on "large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States." The New York Times reported that the President decided to launch this massive eavesdropping program "without search warrants or any new laws that would permit such domestic intelligence collection."

A more recent New York Times report indicates that far from being a "limited" program - the NSA domestic spying has led to a massive influxing of information being fed to the FBI - enough to overwhelm and drown them into stagnation on their anti-terrorism efforts.
WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of phone and Internet traffic. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mr. Mueller asked senior administration officials about "whether the program had a proper legal foundation," but deferred to Justice Department legal opinions, the official said.

President Bush has characterized the eavesdropping program as a "vital tool" against terrorism; Vice President Dick Cheney has said it has saved "thousands of lives."

But the results of the program look very different to some officials charged with tracking terrorism in the United States. More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.

"We'd chase a number, find it's a schoolteacher with no indication they've ever been involved in international terrorism - case closed," said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

In response to the F.B.I. complaints, the N.S.A. eventually began ranking its tips on a three-point scale, with 3 being the highest priority and 1 the lowest, the officials said. Some tips were considered so hot that they were carried by hand to top F.B.I. officials. But in bureau field offices, the N.S.A. material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more "calls to Pizza Hut," one official, who supervised field agents, said.

So not only are we not just looking at people with "al-Qaeda" links, it appears that the NSA information is being used to spark the tapping of completely domestic calls of completely innocent people. Following Gore's speech, Attorney General Alberto Gonzales appeared on both Hannity & colmes as well as Larry King to perform a bit of CPR on the Administrations legitamacy.

ALBERT GONZALES, ATTORNEY GENERAL OF THE UNITED STATES: Well, I didn't see the speech of the former vice president. What I can say is that this program from its inception has been carefully reviewed by lawyers throughout the administration, people who are experienced in this area of the law, experienced regarding this technology and we believe the president does have legal authorities to authorize this program.

I would say that with respect to comments by the former vice president it's my understanding that during the Clinton administration there was activity regarding the physical searches without warrants, Aldrich Ames as an example.

Here Gonzales admits he doesn't even know what Gore said - but continues to claim what the President is doing is legal, while at the same time attempting to undermine Gore's credibility by claiming "they did it too". But that is false. Clinton did not violate FISA, as phyisical searches were not included under the FISA law at the time, but they are now as a result of President Clinton's urging 1995 - and even they weren't, Bush isn't accused of doing warrantless phyisical searches in the first place. This is apples and pomagranites.

On the issue of the legality of the NSA program, Gonzales may not have listened to Gore - but it appears that Gore has been listening to Gonzales.

The President's men have minced words about America's laws. The Attorney General openly conceded that the "kind of surveillance" we now know they have been conducting requires a court order unless authorized by statute. The Foreign Intelligence Surveillance Act self-evidently does not authorize what the NSA has been doing, and no one inside or outside the Administration claims that it does. Incredibly, the Administration claims instead that the surveillance was implicitly authorized when Congress voted to use force against those who attacked us on September 11th.
This argument just does not hold any water. Without getting into the legal intricacies, it faces a number of embarrassing facts. First, another admission by the Attorney General: he concedes that the Administration knew that the NSA project was prohibited by existing law and that they consulted with some members of Congress about changing the statute. Gonzalez says that they were told this probably would not be possible. So how can they now argue that the Authorization for the Use of Military Force somehow implicitly authorized it all along? Second, when the Authorization was being debated, the Administration did in fact seek to have language inserted in it that would have authorized them to use military force domestically - and the Congress did not agree. Senator Ted Stevens and Representative Jim McGovern, among others, made statements during the Authorization debate clearly restating that that Authorization did not operate domestically.

When President Bush failed to convince Congress to give him all the power he wanted when they passed the AUMF, he secretly assumed that power anyway, as if congressional authorization was a useless bother. But as Justice Frankfurter once wrote: "To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress."

This is precisely the "disrespect" for the law that the Supreme Court struck down in the steel seizure [Youngstown Co. V Sawyer] case.

In Youngstown, President Truman argued that his Article II Commander-in-Chief powers allowed him to seize control of the steel mills during the Korean War to avoid a worker strike -- the Supreme Court found otherwise, yet Alberto Gonzales and the Justice Department have ignored this fact in order to give justification to President Bush's bypass of the FISA court. The court found in Youngstown that...

2. The Executive Order [to seize the mills] was not authorized by the Constitution or laws of the United States; and it cannot stand. Pp. 585-589.

(a) There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here. Pp. 585-586.

(b) In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. P. 586.

(c) Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution. Pp. 587-589.

(d) The Order cannot properly be sustained as an exercise of the President's military power as commander in Chief of the Armed Forces. P. 587.

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "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."

Gore continues...

Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?

The Dean of Yale Law School, Harold Koh, said after analyzing the Executive Branch's claims of these previously unrecognized powers: "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution."

For example, after appearing to support legislation sponsored by John McCain to stop the continuation of torture, the President declared in the act of signing the bill that he reserved the right not to comply with it.

Similarly, the Executive Branch claimed that it could unilaterally imprison American citizens without giving them access to review by any tribunal. The Supreme Court disagreed [Hamdi v. Rumsfeld], but the President engaged in legal maneuvers designed to prevent the Court from providing meaningful content to the rights of its citizens.

In the end Gore called for an immediate Special Counsel to look into violations of law by President Bush, yet Gonzales argued that "many attorney's" with the Justice looked over the FISA issue, but it appears that not all of them agreed.
With Mr. Ashcroft recuperating from gall bladder surgery in March 2004, his deputy, James B. Comey, who was then acting as attorney general, was unwilling to give his certification to crucial aspects of the classified program, as required under the procedures set up by the White House. . .
With Gonzales as AG, it is quite unlikely that a true investigation of the NSA wiretaping will take place, but that doesn't mean the story is over.

Rep. John Conyers (a black leader who has followed very much in the path of Dr. King) has called for a Congressional investigation [one which is unlikely with the Congress remains corrupt under Republican Control], but there is hope that the issue will be addressed - eventually - by the Padilla case. In the meanwhile, we need to focus on the TRUTH of what Gore has stated, and continue to pound home these issues - we must continue to speak out, and demand that our elected representatives - both Republican and Democrat - speak the truth, or else face being unelected. Dr. King spoke of having a dream, I believe that dream is still alive - we can not afford to let it die.

But Dr. King did not accomplish his goals alone - his primary role was in awakening the simple common decency of those who were witnesses to him. He was not perfect, he was not without flaw -- but he did inspire us to at least try to do better, and to be more than we were at the time. We can still be more, we can still do better - and we don't need to sit around and wait for Dr. King Mark II to arrive -- we need to stand up and do it own our own, just as he did.

Now, if we can just get past Diebold...


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