Vyan

Friday, December 15

The Impeachment Case Against George W. Bush: Count 2 - Domestic Espionage

Musical Accompaniment for this post by John Lennon - "Nobody Told Me"!


As we look forward into the 110th Congress and beyond, it becomes more and more critical that we envision the country as would all, Democrat, Republican, Liberal, Conservative and Independent would like it to be.

Beyond this issue of party affiliation is the issue of our national character.

What is America?

Is it the land of the free, or the home of the scared? This will be the subject of Count 2 from my multipart series on Why George W. Bush must be Impeached.

The Impeachment Case Against George W. Bush - Count 2 : Domestic Espionage. President George W. Bush did, with malice aforethought, deceive the World and American people in to secretly conduct Espionage Against Millions of Americans, repeatedly violating their 1st and 4th Amendment Rights on as well as multiple Federal Laws.

This is a case which has been well discussed in the year since it was originally revealed that the Bush Administration had ordered the NSA to record tens of thousands of phone calls made by "known al-Qaeda affiliates" abroad to the U.S. all without a single warrant.

Before that became known one year ago the President when discussion the Patriot Act stated in April of 2004 that:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

To be fair, there is a difference between what has been authorized by the Congress via the Patriot act - and the authority the President Bush has claimed is inherently his in order to conduct this espionage.

The Patriot Act brought down the wall between law enforment and intelligence gathering. The importance of that wall and the distinction between how Law Enforment Agencies such as the FBI handle their cases and how the CIA and Spies handle counter-espionage and counter-terrorism is vital.

Law enforcement is one thing, Espionage is another. Rarely is Espionage or counter-espionage entirely lawful.

Most Americans would agree that the President has the authority and a duty to perform both counter-terrorism and counter-espionage, and that while doing so our own spies are likely to violate the laws of what ever country that may be in at the time - however when it comes to such actions within the U.S. itself the requirement has been that the President must also abide by the Laws of the U.S..

In this instance the law is very clear. Under FISA and 18 USC 2551, just as the President claimed in 2004, no wiretaps of U.S. citizens or residents may be performed without a court order.

It's too bad that even though the Patriot Act modified FISA to allow for the warrant to be issued three days after surveillance has already begun - Bush still hasn't abided by the law.

Unfortunately that isn't all. Not only has the President secretly authorized the illegal tapping of domestic phone calls, he has has also authorized the tracking of purely domestic calls and emails as part of an additional program to Datamine the personal contact information of tens of millions of Americans. This violates 18 USC 3121 which prohibits use of a "Pen and trap" devices without a warrant and 18 USC 2702 which prohibits companies such as AT&T from voluanteering customer information to the government without a warrant.

His authorization of Warrantless Electronic Surveillance has in due course has led to Warrantless Physical Searches, and based on the hints provided by NSA Whistle-blower Russel Tice - that is 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. ...

[Tice] 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."

So far the details of Tice's meeting with Congress - which incidentally took place on the same day a Gen Micheal Hayden's confirmation to become CIA Director - have not been revealed due to National Security Restrictions.

Still Sen Russ Feingold along with Congressman John Conyers have both called for Bush to be Censured for the NSA Program. Senator Jay Rockefeller, the incoming head of the powerful Intelligence Commitee wrote a letter to the Vice President about the program in 2003.

Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveiliance.

Without more information and the ability to draw on any independent legal or techical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller

Although selected members of Congress (The "Gang of Eight") were indeed briefed on this program, they were also required by Federal Law not to disclose or discuss it with anyone without the proper security clearances - including their own staff, other members of congress or lawyers who may have been able to give them a better understanding of the legal issues. And they certainly couldn't vote or to authorize or amend the program in an open hearing.

Since the writing of that letter a Federal Judge has ordered that the NSA program be shutdown immediately and ruled that it is both illegal and unconstitutional - a decision which is currently pending appeal.

Judge Taylor found that the program violated the Foreign Intelligence Surveillance Act (FISA), which was passed in the 1970s to curb executive abuses that included spying on civil rights leaders and Members of Congress. FISA requires a warrant before the executive can wiretap Americans. Judge Taylor also found that the program violated the separation of powers because it circumvented Congress’s power to regulate presidential authority, and that it violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. The government appealed the decision to the Sixth Circuit Court of Appeals, which granted a stay of the decision pending appeal.

In response Attorney General and Former White House Counsel Alberto Gonzales has argued that Judge Taylor's view of "Freedom" and "Upholding the Constitution" - "is one utterly divorced from civic responsibility - is superficial and is itself a grave threat to the liberty and security of the American people."

An investigation by the DOJ's Office of Personal responsibility was terminated earlier this year simply because the President refused to grant the neccesary security clearances, yet at the same time he did grant the clearances needed to defend against the ACLU's (so far successful) lawsuit.

I think most people would consider that action to be Obstruction of Justice!

Just as Gonzales words - which are quite a departure from their normal refusal to comment on "ongoing investigations" - would appear to be an attempt to influence and intimidate a Federal Judge. Not exactly the acts of innocent men.

Never-the-less a second investigation by the DOJ has recently been spawned, but not into the legallity of the program itself - the purpose of this one is to determine how the information mined by the NSA has been used.

From what we've already seen based on information divulged by the FBI to the New York Times, the answer to that question is "not very well"...

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

...

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism - case closed," said one former FBI 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."

The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. "There were no imminent plots - not inside the United States," the former F.B.I. official said.

Putting aside questions of the effectiveness and efficiency of this program - it is quite clear that it is illegal, yet Bush and his supporters continue to clamor that it should be retained argueing that Presidential authority in Wartime apparently trumps not just the Law, but also Congress and the Courts.

However, they rarely hesitate to cite Congress and Courts when it suits their purposes.

The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people
of the United States.

In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute has confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland.

...

The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad.

Even Lindsey Graham has found that one hard to swallow. "I don't know any legal basis" for Bush's secret spying program. So has Newt Gingrich - Bush's program "Can't be defended by Reasonable people".

Of course, whoever said that Gonzales and DOJ under Bush were "reasonable"? Their claim that "Congress by statute has confirmed and supplemented the President's recognized authority" comes from the passage of the 2001 Use of Force Resolution against al-Qaeda and Afghanistan.

Law Professor Jordon Praust on that interpretation of the AUMF.

George W. Bush and US Attorney General Alberto Gonzales claim that domestic spying in manifest violation of the Foreign Intelligence Surveillance Act (FISA) was authorized by Congress in broad language in the 2001 Authorization for Use of Military Force (AUMF) regarding persons responsible for the 9/11 attacks. Similar claims have been made in a December 22 letter from Assistant Attorney General William Moschella to the leaders of the House and Senate Intelligence Committees. The claims are patently false.

The DOJ claims that the Hamdi decision supports their view - however what was actually said in Hamdi over the issue of weather the AUMF authorized the President to indefinitely detain U.S. Citizens without Judicial review was...

JUSTICE O ’CONNOR,joined by THE CHIEF JUSTICE,JUSTICE KENNEDY,and JUSTICE BREYER,concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.Pp.14 –15.

A neutral decision maker - like the FISA Court perhaps? Harvard Law Professor Laurence Tribe concurs.

After all, the collection of "signals intelligence" about our enemies abroad is no less an accepted incident of war than detaining the captured enemy -- just as signals intelligence of foreign agents (including some going to and from the United States) has been accepted as an inherent power of the President even in the absence of war. Surely, then, now that Al Qaeda has launched a war against us, and now that Congress has responded with the functional equivalent of a declaration of war in the AUMF, even the entirely innocent American citizen in Chicago or Cleveland whose phone conversation with a member of an Al Qaeda-supportive organization happens to be ensnared by the eavesdropping being undertaken by the NSA cannot be heard to complain that no statute specifically authorized the Executive to capture her telephone communications and e-mails as such. Invasion of that citizen's privacy was, alas, but one of war's sad side effects -- a species of collateral damage.

The technical legal term for that, I believe, is poppycock.

The truth is that the NSA and President didn't abide by FISA because they knew they'd lose. Via Glenn Greenwald.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

Let me reinterate - not going to the FISA court and then doing the surveillance or other information gathering anyway - is a Crime.

The President has admitted to committing this crime - Millions of Times.

The endgame arguement for Bush's supporters is essentially the view that the Law does not apply during War. They note that historically this has been true, that Lincoln suspended Habeas Corpus during the Civil War (although this suspension was subsequently overturned). President Franklin Roosevelt order all overseas communications tapped during WWII (he also requested that U.S. Citizen be exempted from this surveillance). President Truman authorized the Wiretaps of people who "held radical views" during the Red Scare of the 50's.

None of these actions were ever challenged in court as they were kept from the public behind the veil of "National Security". But eventually they began to peak out in progrsm such as COINTELPRO.

[Attorney General John] Mitchell held that the Justice Department was free to tap without a warrant any political dissenters it deemed threats to national security. Given how many Americans were organizing to oppose various government policies in 1969, Mitchell's reading promised to sanction the surveillance of millions of people who agitated against the Vietnam War, championed black radicalism, or engaged in campus protests.

This action led to the warrentless wiretaps or Dr. Martin Luther King Jr and Malcolm X for their anti-war views, which eventually was followed by the 1967 Katz case where it was determined that "government taps did indeed constitute an unconstitutional search and seizure.

But it didn't stop there as increasing violence in the midst of the Civil Rights movement fostered the Omnibus Crime Control Act of 1968 which attempted to undermine Katz, which in turn led back to the Supreme Court and the "Keith case of 1972", where the Supreme Court ruled thusly.

MR. JUSTICE POWELL delivered the opinion of the Court.

The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, 1 without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion.

...

We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, 1, of the Constitution, to "preserve, protect and defend the Constitution of the United States." Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President - through the Attorney General - may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government. 9 The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946.

...

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.

Later President Nixon's paranoia and lust for power fomented the break-in at Democratic National Headquaters at the Watergate Hotel and the illegal taping of the psychiatrist of Daniel Ellsberg, a State Dept Official who had been the prime suspect for the leaking of the Pentagon Papers. This led to the Church Commission which in turn led to the creation of FISA Court to provide a judical check on the use of executive power regarding domestic surveillance.

In the wake of Watergate, Nixon resigned in disgrace to avoid Impeachment - by contrast President Bush with his Domestic Espionage Progarm has attempted to turn 40-years of Legal Jurisprudence on it's head, and has succeeded in leaving Nixon's Crimes in his dust.

What may be far worse than the pure criminal and unconstitutional actions of this President, may be the increased risk from actual foreign agents he has created with these programs.

  • Evidence gathered illegally is inadmissable in court, and so is any addition information which may have been discovered as the result of an illegal act. This is called the Fruits of the Poison Tree doctrine and U.S. Federal Prosecutors as well as Defense attorneys have already readied themselves for such challenges to battles over evidence. As a result the President has championed the implementation of Military Commission for the trial of terrorist subjects where classified evidence may be introduced while concealing the source and methods used to gather that evidence. A handy option to have if your methods happen to be completely illegal.

So not only does this program hinder our ability to catch real terrorists, we may not even be able to legally prosecute those we do catch. Nice.

History under the collective weight of Katz, Keith, FISA and Hamdi does not support the arguements put forth by President Bush and his supports, nor do the facts, or the Constitution.

Nixon was rightly run out of office on a rail for his attempts to attempt to destroy our freedom by unilaterally invading the privacy of anyone he wanted without just cause.
President Bush has done the same, and gone far further with the aid of Supercomputers, Satellites and Internet technology.

This is Watergate Time 10,000.

Just as the actions of President Roosevelt were escalated by Senate Joe McCarthy during President Truman's term, and again under Johnson, and again under Nixon - the unlawful and unconstitutional actions of this President will do nothing except escalate under the next President - and the next, and the next.

For that reason it must be stopped - now. President Bush must be held to account for his actions or else the very freedom that our society is ment to bring into reality will likely crumble and vanish. It not really a matter of whether Bush has grossly misused his authority, which in all likelyhood he has, the issue remains - how could such unlimited power be abused in the future?

President Bush may or may not have decided to use the resources of the NSA to perform social network analysis to indentify highly influential persons who oppose his policies, have the FBI investigate them and then shared the information with state and local agencies as well as selected "private concerns" where it could be used to target political activitists, journalist and members of congress for harrisment or political operations in the same way that he has used the Faith Based Initiatives to political manipulate our Churches - but we shouldn't even have to ask the question, should we?

As Justice Powell concluded in Keith.

Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values.

This isn't just a matter of what is or isn't technically legal as cases such as Keith did not specifically address this issue of the Presidents power's of Foreign Surveillance only surveillance of Americans - certainly that final question might not be resolved until Judge Taylor's decision eventually reaches the Supreme Court - however Impeachment is not a legal issue, it is a Consitutional one that asks and answers the question, "Has the person betrayed his oath of office and brought the fabric of our Democracy into peril?"

In the case of President George W. Bush - the answer is clearly "Yes, he has".

Vyan

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