One step back from the brink of Totalitarianism

In May I wrote that we are fast approaching a defining moment for the future of our nation.

The Unitary Executive Theory must be permenently quashed as a demented Constitutional aberration that dangerously tips the balance of power completely out of whack.

We are supposed to be a nation of laws, a nation of ideals which our bounded by the articles and amendments of our Constitution. Bush has turned our laws inside out and wiped his ass with the Constitution while this Republican Congress aided and abetted him. Genuflecting at his every abuse.

Ask any Republican friend of yours, if you still have any - would they "Want President Hillary Clinton or President Al Gore to have the kind of power that Bush is nowing claiming with the NSA and 750 signing statements directly contradicing Federal Law?"

If they answer the question honestly, I think they just might surprise even themselves. It's a defining question that goes beyond party affiliation, Red or Blue State, Left-Coast or Fly Over. The answer will determine exactly what kind of nation the United States will be for the next several generations.

It appears now that the very moment I spoke of, may have already occured.This week one of the most signficant events in slowing the steady slide of America toward Totalitarianism took place in a San Francisco courtroom.

SAN FRANCISCO (AP) -- A federal judge Thursday rejected a government request that he dismiss a lawsuit challenging the Bush administration's domestic spying program.

The lawsuit, brought by the Electronic Frontier Foundation, challenges President Bush's assertion that he can use his wartime powers to eavesdrop on Americans without a warrant.

The government had argued that the lawsuit should be thrown out because it threatens to reveal state secrets and jeopardize the war on terror.

The judge issued a 72 page ruling which took the Bush Adminstration to task for it's claims that "state secrets" could be divulged by the persuit of this suit by pointing out that the existence and many of the details of the NSA's warrantless spying program have already been confirmed by the government itself.

"the very subject matter of this action is hardly a secret. As described above, public disclosures by the government and AT&T indicate that A&T is assisting the government to implement some kind of surveillance program" . . . "significant amounts of information about the government's monitoring of communication content and AT&T's intelligence relationship with the government are arleady non-classified on in the public record."

Since 9-11, and in same cases even before, the Bush Administration has sought to gather as much power until itself as it can. Rejecting both the oversight of Congress as well as the iance of the courts in keeping an even balance between the various branches of our government.

We have to face the fact that Bush seeks TOTAL Power. He is a Totalitarian. He claims the ability to spy on anyone he chooses, without judicial review or congressional authorization. To detain them without an indictment, hearing or charges - including American citizens (Hamdi, Padilla) And yes, to torture them. The only thing missing is summary execution - but then again, after over 100 deaths in custody, that may only be a matter of semantics.

Just look at what former State Dept Chief of State Lawrence Wilkerson has said about Bush.

Wilkerson calls Bush an unsophisticated leader who has been easily swayed by "messianic" neoconservatives and power-hungry, secretive schemers in the administration. In a landmark speech in October, Wilkerson said: "What I saw was a cabal between the vice president of the United States, Richard Cheney, and the secretary of defense, Donald Rumsfeld, on critical issues that made decisions that the bureaucracy did not know were being made."

He is particularly appalled by U.S. treatment of enemy detainees, counting at least 100 deaths in custody during the course of the war on terrorism -- 27 of them ruled homicides. "Murder is torture," he says. "It's not torture lite."

But Bushco's aims have been increasing frustred by the courts. Following quickly on the drubbing the Bush Administration received with the Hamdan decision, this ruling has opened a wide crack in the door to the 36 various lawsuits against AT&T and the NSA for violations of privacy and the avoidance of the FISA court - and indicates that my own initial impressions of ramifications of Hamdan were right on the money.

If the AUMF didn't authorize Gitmo, torture or Military Tribunals, it didn't authorize the NSA Spying program either!

The judge makes this point by going not to Hamdan, but to the previous Gitmo detainee case Hamdi v Rumsfeld, where much of Bush's initial theory of executive power was first given a hard bitch-slap by the Supreme Court.

"Even the state secrets privilege has its limit. While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. See Hamdi v. Rumsfeld, 542 US 507, 536 (2004) (plurality opinion) ("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").

To defer to a blanket assertion of secrecy here would be to abdiate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

The issuance of this opinion is unfortunately not the end of the story. The government can still appeal the ruling with the 9th Circuit and yet again the Bush Administration could find itself again before the Supreme court on the issue of limits of it's own power. Also there is pending legislation authored by Arlen Specter which was effectively codify the current methods used by the NSA to avoid FISA, and also shift jurisdiction of all of these cases to that secret court and away from the 9th circuit.

It can not be doubted that the Administration will use every tool in it's arsenal to fight this. As confirmed by Alberto Gonzales, Bush has already denied clearances to members of the Justice department's Office of Personal Responsiblity and effectively shutdown thier investigation of the NSA program, while simultaneously allowing the DOJ's Civil division full access in order to fight suits such as this one.

Some commentary from Anonymous Liberal on this piont:

Imagine for a moment that Bill Clinton had pulled something like this. The Republicans would have gone absolutely batshit crazy. Every single conservative pundit and politician would have jumped all over this, and the shrieking would have been deafening—So repeat after me: "If what the President is doing is legal and proper, why is he so afraid to allow his own Justice Department to investigate? What does he have to hide?"…read on

The likelyhood of Bush prevailing on this issue before the Supreme Court that just released the Hamdan ruling are somewhere between razor thin and nonexistant. The ramifications are that the Administration will respond to any future revelations of illegal wrong-doing under the cover of National Security with abject denial and obfuscation. In fact this may already be occuring.

Just two weeks ago it was reported that Congressmen Pete Hoekstra (R), head of the House Intelligence subcommittee overseeing NSA had written a letter to the President on May 18 that:

"alleged Intelligence Community activities" not described to committee members in classified briefings. "If these allegations are true," he wrote to Bush, "they may represent a breach of responsibility by the Administration, a violation of law and . . . a direct affront to me and the Members of this committee."

These are apparently activities that go far beyond what has been revealed so far and have led to the suit against AT&T for cooperating with the NSA and granting them access to the phone calls and emails of tens of millions of Americans. Something so bad it made a Republican jump up and shout that Bush may have (again) broken the law.

The details of this program have not been revealed, and by law - the Congressmen who have now been briefed on these additional programs can not speak about them without violating national security. However, there may be a clue to what this is via other sources - namely former NSA member Russell Tice who testified before Senate staffers concerning various Special Access Programs (SAP) that he was involved in at NSA on May 17th - one day before Hoekstra letter to President Bush.

Before his testimony Tice stated that what we had heard about so far was only the tip of the iceberg.

A former intelligence officer for the National Security Agency said Thursday he plans to tell Senate staffers next week that unlawful activity occurred at the agency under the supervision of Gen. Michael Hayden beyond what has been publicly reported, while hinting that it might have involved the illegal use of space-based satellites and systems to spy on U.S. citizens. …

said he plans to tell the committee staffers the NSA conducted illegal and unconstitutional surveillance of U.S. citizens while he was there with the knowledge of Hayden. … “I think the people I talk to next week are going to be shocked when I tell them what I have to tell them. It’s pretty hard to believe,” Tice said. “I hope that they’ll clean up the abuses and have some oversight into these programs, which doesn’t exist right now.” …

Tice said his information is different from the Terrorist Surveillance Program that Bush acknowledged in December and from news accounts this week that the NSA has been secretly collecting phone call records of millions of Americans. “It’s an angle that you haven’t heard about yet,” he said. … He would not discuss with a reporter the details of his allegations, saying doing so would compromise classified information and put him at risk of going to jail. He said he “will not confirm or deny” if his allegations involve the illegal use of space systems and satellitesl

After his testimony Tice said This

"I am set to testify in closed session to the Senate Armed Services Committee about the SAP programs I was involved with at NSA and DoD on Wednesday, 17 May 2006. I am to meet with Senate staffers in the Russell Senate Office Building, in room 228, at 12:57pm EDT. From there, we will immediately be moving to a secure locations that is accredited for SAP level discussions. I apparently will not know where this location is until I am escorted to it on Wednesday."

Click here to read 2 letters penned by Tice on testifying.

Update: Tice email #2, sent out late yesterday: "Update on the Senate Armed Services Committee. I have been told today by the committee minority staff director that I will not be "testifying" to the committee, but rather talking to a few staff members that are cleared at the SAP level. Apparently no senators from the committee will be in attendance at this meeting."

Actually I have concerns that this itself may have been questionable legally. I held a SAR (Special Access Required) Clearance for over a dozen years while working for a Defense Contractor, and SAP level access is literally program specific. It goes beyond "Top Secret Clearance" and requires that a person be specifically cleared for each individual program. Just because someone holds a SAP clearance to one program doesn't mean that they can be given information about a different SAP program. These programs are compartmentalized from each other. I worked along side others who worked on programs I had no knowledge of, this is standard operating procedure, those without a specific "Need to Know" - don't. Although Tice testified under Federal Whistle-Blower protection, the ability of those who he briefed to share that information - even within Congress - is severely limited.

However, it should also be noted that on the very same day as Tice's testimony - Gen Michael Hayden also testified in closed session to the Senate Intelligence Commitee and others. Just look at this exchange with Senator Levin when Hayden was asked if the President has been honest with the American people concerning the scope of the "Terrorist Surveillance Program"?

LEVIN: Is that the whole program?

HAYDEN: Senator, I'm not at liberty to talk about that in open session

LEVIN: I'm not asking you what the program is, I'm just simply saying, is what the president described publicly the whole program.

HAYDEN: Senator, all I'm at liberty to say in this session is what I was talking about, and I literally, explicitly said this at the press club, I am talking about the program the president discussed in mid-December.

LEVIN: And you're not able to tell us whether what the president described is the whole program?

HAYDEN: No, sir, not in open session. I am delighted to go into great detail in closed session.

It still remains a question whether the new and even more illegal programs revealed by Tice (or Hayden) to Congress are the same programs that prompted Hoekstra's letter and his eventual briefing. I would suspect they are - but one wonders, what if they aren't and the truth is that there thing going on at NSA and DoD that are beyond both Tice and Hoekstra's current knowledge? Did Hayden really tell them everything?

Just how deep does the rabbit hole go, and even with this court decision - will we ever truly find out?

Vyan

Breaking reports indicate that former Rep Randy "Duke" Cunningham used the secrecy of "black world" budgets to hide his own illegal activities directing funds to various defense contractors within the House Intelligence Committee.

Cunningham's case has put a stark spotlight on the oversight of classified — or "black" — budgets. Unlike legislation dealing with social and economic issues, intelligence bills and parts of defense bills are written in private, in the name of national security.

That means it is up to members of Congress and select aides with security clearances to ensure that legislation is appropriate.

Stern has told the committee that Cunningham's efforts to steer business to friends and associates were far worse in the spending bills written by the House Appropriations Committee than those written by the House Intelligence Committee, congressional officials say. But the intelligence panel that draws up the blueprint for spending by the government's spy agencies was not immune to his misdeeds.

He and Harman are putting additional protections into the process of drafting legislation, although Hoekstra described Cunningham as a special case. "This guy bastardized the process the whole way through."

True enough, and he hasn't been the only one.

This also brings to mind another point, the Bush Adminstration has claimed that they couldn't allow Congress to create a law that would have legally authorized their Domestic Spying program because it would have made the program public and "revealed our playbook" -- but Congress has been handling intelligence legislation in secret for generations.

There is already a process in place for doing exactly that - for example my own SAR clearance came initially from working on the B2 Bomber project, one of the most expensive defense contracts in history and nobody really knew any details about until nearly a decade after it began - but that project was authorized and funded by Congress each and every year prior to that - in Secret.

This yet again shows that the Bush Administration is completley full of shit.

Vyan