On Randi: It (FISA) is the Law, Stupid!

On my second time calling in and speaking with Air America host Randi Rhodes, I had a chance to discuss a critical flaw in the Gonzales arguments defending the NSA program. Through all the various legal jousting, ducking and dodging - there is one issue on which Gonzales is completely, flatly wrong. It's an issue that sits like a lynchpin in their arguments, and once pulled causes the NSA program to collapse on itself like a house of cards.

That lynchpin is called Hamdi v Rumsfeld.

On Randi's show - I yanked on that lynchpin like lawnmower chain. All you need is two steps - two facts - and Gonzales goes down like a sack of potatoes.

Step One - Hamdi!

At his recent Press Conferrences as well as during yesterdays testimony, Gonzales has repeatedly asserted that the Domestic Wiretap Program is legal and constitutional because of the Supreme Court decision made in Hamdi.

Let me take you back to a case that the Supreme Court reviewed this past -- in 2004, the Hamdi decision. As you remember, in that case, Mr. Hamdi was a U.S. citizen who was contesting his detention by the United States government. What he said was that there is a statute, he said, that specifically prohibits the detention of American citizens without permission, an act by Congress -- and he's right, 18 USC 4001a requires that the United States government cannot detain an American citizen except by an act of Congress.

We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." And the Supreme Court, a plurality written by Justice O'Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder -- the duration of the hostilities. So even though the authorization to use force did not mention the word, "detention," she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, "authorize the President to use all necessary and appropriate force."

For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance

Now he sort of runs around the barn a couple times here, but basically he's claiming that since the Supreme Court allowed the AUMF to override an existing law which previously prohibited American citizens from being designated as "Enemy Combatants" [18 USC 4001], it simply follows logically that the same AUMF would also override FISA concerning domestic surveillance.

This arguement seems reasonable, it seem logical, makes sense - but unfortunately is completely and totally wrong because Gonzales is in fact mistating Hamdi with a half-truth.

It's true that Supreme Court override 18 USC 4001, but it is not true that their decisions would allow for the FISA Court to be bypassed. In fact, we all may have even heard Gonzales and various Senators during the hearings quote Justice O'Connors "No Blank Check" statement on the Hamdi decision - but almost none of them have continued to the next portion of the decision which is where Gonzales argument falls apart.

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation ’s citizens. Youngstown Sheet &Tube ,343 U.S.,at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict,it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v.United States, 488 U.S.361,380 (1989)(it was “the central judgment of the Framers of the Constitution that,within our political scheme,the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty ”);Home Building &Loan Assn.v.Blaisdell,290 U.S.398,426 (1934)(The war power “is a power to wage war successfully,and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation.But even the war power does not remove constitutional limitations safeguarding essential liberties ”).Likewise,we have made clear that,unless Congress acts to suspend it,the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance,serving as an important judicial check on the Executive ’s discretion in the realm of detentions.

Under Hamd the Supremes established that judicial review would be neccesary before the executive branch could override 18 USC 4001, and declare a U.S. Citizen as an enemy combatant.

Folks, this is simple - since you still need judicial review under Hamdi and the post 9-11 Authorization to Use Military Force, you still need judicial review for domestic signal intelligence and FISA is still applicable.

That one fact knocks out two legs from Gonzales chair and he only has one left, the arguement that "President has long assumed this authority". It's true that many of them have, but nearly all of that - George Washington reading telegrams, Lincoln, Wilson and Roosevelt listening in to wire communications - were prior to establishment of FISA in 1978.

FISA is the law, Stupid.

In this statement Gonzales is clearly admitting that the President violated the law, and is using a flawed understanding and mis-statement of Hamdi as an excuse. Also there's the fact that the Hamdi decision didn't even occur until the program had already been in operation for a full year - so exactly what made the it legal prior to Hamdi?

Gonzales gave us nothing that would allow the President to violate FISA. Nada. Zip.

Step Two - Congress has the Power!

There are some members of the extreme far right-wing like Professor Robert Turner, an NSA expert from the Reagan Administration who appeared with Glenn Greenwald on C-Span's Washington Journal the morning of the hearings, who claim that FISA is itself unconstitutional.
[Although Gonzales himself hasn't made such a claim, his arguements come quite close to it when stating that "President's have always had this power"] From Turner's Op-Ed in The Wall St. Journal

For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.

Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line. . . .

Well, I have plenty of space to debunk Turner's claims and it requires is once sentence from Article I Section 8 Paragraph 14 of the Constitution, which grants to the Congress the power...

To make Rules for the Government and Regulation of the land and naval Forces;

It may be true that foreign matters of state are the exclusive province of the executive, but this clause makes it clear that the Rules and Regulations regarding the armed forces - which would include FISA since the NSA are a part of the DoD - are under the province of Congress. For that matter so are the War Powers. Congress declares War, not the President. Congress establishes the rules of engagement for the armed forces, not the President. Congress has the option - during War - to suspend Habeas Corpus, not the President. Congress makes the laws and the President abides by them.

Urm...not this President.

Before talking to Randi, I called the Senate during the hearings to try and make this point clear, hoping to slip it under the door. "Gonzales is misstating Hamdi, it required judicial review! Somebody needs to catch him on that." All we need is one Senator - even one Op-Ed to point this fact out, and the President if busted - big time.

The Toll Free Line to Congress: (888) 355-3588.

The Congressional operator will re-route your call to any Senator. [Once forwarded it appears they can't get your area code via "Caller ID" so they usually don't ask you to confirm that you're a constituant - they just take the call] So far, I've brought this up with Leahy, Kennedy, Feinstein and Feingold. I've even brought it up with Lindsey Graham.

We need to hammer this home people.

Vyan