The Fastest Way to End the Iraq War

...is not through Impeachment.

Don't get me wrong, George Bush absolutely needs to be Impeached for reasons that both Kagro X and thereisnospoon have most eloquently put.

But that isn't the best and fastest way to end the war.

This post is an expansion on a comment I made to post by kos where he stated.

What Democrats in Congress will have to do (and already plan on doing) is use their bully pulpit to amplify the overwhelming public opposition to the war. Bush isn't up for reelection, so he doesn't give a damn about himself. But if he sees that in political terms the war could cost his party dearly in 2008, that may be the one thing that could pull him back from the precipice.

It's clear that lots of Republicans are already panicking about their 2008 chances, and it won't be long before most of the Republican senators up for reelection in 2008 are fervent war opponents, as well as any House Republican who won her or his reelection battle by single digits.

But it won't save them, just like it didn't save Lincoln Chafee.

This is the Republicans' war. They bought it. They broke it. They own it. And they will suffer the brunt of it.

And the more Bush and McCain escalate the war, the deeper the consequences will be.

So don't fret that Congressional Dems can't unilaterally get us out of that mess. That power is vested in the president. But the bigger the mess Republicans make of the war, the bigger our victories in 2008. And if we make those big gains in Congress and the White House, ending this war will be tops on our 2009 agenda.

Although I agree that Congress absolutely needs to use the bully pulpit and hearings to help underscore the point that this war must be stopped - I contend that it isn't true that Congress can't get us out of this mess and can only rearrange the funding on the deck of this Titanic.

The Fastest way to end the Iraq War is for Congress to simply repeal HJ 141, the Iraq Force Resolution, and de-authorize the War. If the Power to declare War belongs to the Congress, so does the power to end it, if they have the will to do so. At this point in time all major objectives sought by that resolution required Saddam to abide by various and sundrie UN Resolutions have been met.

Not to mention those which were just plain bullshit.

Whereas after the liberation of Kuwait in 1991, Iraq entered into a United Nations sponsored cease-fire agreement pursuant to which Iraq unequivocally agreed, among other things, to eliminate its nuclear, biological, and chemical weapons programs and the means to deliver and develop them, and to end its support for international terrorism;

Whereas the efforts of international weapons inspectors, United States intelligence agencies, and Iraqi defectors led to the discovery that Iraq had large stockpiles of chemical weapons and a large scale biological weapons program, and that Iraq had an advanced nuclear weapons development program that was much closer to producing a nuclear weapon than intelligence reporting had previously indicated;

Whereas Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations;

Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;

An ABC Survey has revealed that if the IFR were put to a vote today - it would fail.

In Oct. 2003, 77 senators voted to give President Bush authorization to go to war in Iraq. Just 23 senators voted against it.

But according to a new ABC News survey, 33 out of the original 77 senators “indicated they would vote differently knowing then what they know now.” Five senators — including three Republicans — said that in retrospect, the intelligence was so wrong that the matter should never have even been brought to a vote. These results would mean that a vote to authorize war in Iraq today would be 43-57, and the resolution would fail. (Full list of senators here.)

There may not yet be enough support to sustain a veto override - YET - but after sustained and thorough hearings on how this war was falsely justified and how it has been totally mis-handled - that hill will be much easier to hurdle than either Impeachment or any attempt to repeal the War Powers Act.

Saddam is dead (and now Official a Martyr) His regime is destroyed. We've had our oppurtunity to rebuild the country and have completely blown it, we tried to help them establish a new goverment and new army and have blown that too. Although it pains many of us to say it - It's time to go, period.

This campaign is a total failure and staying only delays the inevitable.

We have to finally understand that the fate of Iraq is out of our hands, it's in the hands of the Iraqis.

If the Saudi's want to come in and grapple with al-Sadr and his Militia - while they roast the shrivelled cojones of al-Maliki on a spit - maybe we should let them.

A resolution for a phased troop withdrawal is simply not enough - the various "Unitary Executive/Command-in-Chief" powers that Bush has claimed unto himself also need to be addressed. Repeatedly he has issued signing statments and executive orders for Extreme Rendition, Secret Prisons, Torture, Domestic Spying on our Phone Calls, E-mail, Websites and even opening our U.S. Mail in direct defiance of the law under color of the Authority to Use Force given to him by the Congress and his role as "C-in-C".

It's time to bring that abuse of power to heal.

By the way - A Resolution to do exactly this was originally introduced to the House by Sheila Jackson Lee in 2003 as House Concurrent Resolution 2, before the Iraq War even began.

Whereas the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243; 116 Stat. 1498), enacted into law on October 16, 2002, authorizes the President to use United States Armed Forces against Iraq to defend the national security of the United States against the continuing threat posed by Iraq and to enforce all relevant United Nations Security Council resolutions regarding Iraq;

Whereas since the enactment of Public Law 107-243, Iraq has allowed international weapons inspectors to re-enter Iraq in order to identify and destroy Iraq's weapons of mass destruction stockpiles and development capabilities;

Whereas since the enactment of Public Law 107-243, actions by North Korea relating to its nuclear weapons capabilities pose a more immediate threat to its neighbors and to the United States; and

Whereas in light of these circumstances, Congress should reexamine the threat posed by Iraq, including by allowing time to review fully and accurately the findings of the international weapons inspectors: Now, therefore, be it

Cosponsors at that time were:

Rep Conyers, John, Jr. - 2/4/2003 [MI-14]

Rep Davis, Danny K. - 1/7/2003 [IL-7]
Rep Filner, Bob - 2/4/2003 [CA-51]
Rep Jackson, Jesse L., Jr. - 2/4/2003 [IL-2]
Rep Kleczka, Gerald D. - 2/4/2003 [WI-4]
Rep Kucinich, Dennis J. - 1/7/2003 [OH-10]
Rep Lee, Barbara - 1/7/2003 [CA-9]
Rep Oberstar, James L. - 2/4/2003 [MN-8]
Rep Schakowsky, Janice D. - 2/4/2003 [IL-9]
Rep Waters, Maxine - 2/4/2003 [CA-35]
Rep Watson, Diane E. - 1/7/2003 [CA-33]

I think we could find a few more co-sponsors this time around, considering how badly the War has gone since then.

Vyan

Dems find that Bush Broke 26 Statutes

rom TPM Muckracker

The Bush administration may have broken over two dozen federal laws and regulations -- some of them multiple times -- according to an unreleased report from the House Judiciary Committee Democrats.

"The misconduct I have found is not only serious, but widespread," reads a draft summary of the report by Ranking Member John Conyers (D-MI):

From the Report:

The laws implicated by the Administration's actions include federal laws against making false statements to congress [sic]; federal laws and international treaties prohibiting torture and cruel, inhuman, and degrading treatment; federal laws concerning retaliating against witnesses and other government employees; Executive Orders concerning leaking and other misuse of intelligence; federal regulations and ethical requirements governing conflicts of interest; the Foreign Intelligence Surveillance Act; communications privacy laws; the National Security Act; and the Fourth Amendment.

TPM goes on to point out that a report of this type may have been ignored in the past, but with the rising probability of a Democratic take over of the House this November - accusations such as this coming from a report generated by the ranking member of the House Judiciary Committee (aka the Impeachment Committee) could mean a great deal of trouble for the end of the Bush Presidency.

It is fair to note that although Rep. John Conyers (D-MI) has called for the hearings on the Mahar Torture Case, for the GAO to investigate Bush's prepackaged propoganda news, asked Patrick Fitzgerald to subpeona Jeff Gannon/Guckert's notes on Valerie Plame's ID and sought a full investigation of the Downing Street Minutes, but he has not yet called for the impeachment of George W. Bush

Some may feel that making the statement that Bush may have broken over 26 Federal Laws, but not calling for his immediate impeachment is a mistake.

But there are certainly realities we need to face not just as Democrats, but as Americans. The last thing we can afford to do, is to create the feeling of a purely partisan witch-hunt against at sitting President. I believe strongly that the many and numerous illegal activities of this administration - from 750 quasi-legal signing statements to War Crimes - need to be addressed forcifully and seriously or else the likelyhood of future Presidents repeating or even surpassing the totalitarian bent of this Admnistration will remain a sword dangling precariously over the tender vulerable neck of our Democracy.

Something has to be done - soon - but it has to be handled in the correct manner. Republicans and Conservatives - even some of the 23 Percenters - may have to be brought kicking and screaming back into the Reality Based World, but there's no other way to begin truly healing this nation from the damage George W. Bush has wrought unless it is done in a bi-partisan manner.

Now is not the time to call for Impeachment formally, now is the time to gather the documentation, gather the evidence -- but that time coming, and it won't be long now.

Vyan

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

Score Three for Liberty

In the last few days the Supreme Court has issued a pair of decisions which - coupled with a third from 2002 - have been significant blows to BushCo.

In 2002 while Justice Sandra Day O'Connor was still on the Court, the SCOTUS ruled in Hamdi V Rumsfeld that the President does not have unlimited war powers.

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.

This decision was one of the first major SCOTUS defeats by the Bush Administration, and many felt that with the retiring of Justice O'Connor and the appointment of Samuel Alito for her seat, things would begin to swing Bush's way -- but apparently not.

This week the Texas Gerrymandering by Tom Delay was found Unconstitutional. From Democratic Underground.

This case is significant, because it is one of the few instances in which the Voting Rights Act has been enforced in this country since W. took office. The Department of Justice under John Ashcroft and then Al Gonzales has chosen to pretend that the Voting Rights Act does not exist. Ashcroft did not prosecute Katherine Harris for using a felon's list in Florida which contained the names of tens of thousands of people entitles to vote (even though she was informed that the list was flawed in this way--a violation of the Act). He did not prosecute the thugs who crossed state lines to threaten and intimidate poll workers into stopping a lawful vote recount, even though that is clearly against the law. He did not step in when Diebold inserted an illegal patch called "rob.georgia.zip" into the softwear of of its voting machines in 2002, resulting in surprise upset victories over Democratic incumbents who had double digit leads in the polls.

It's not by coincidence that the House has recently chosen not to vote on reauthorization of the Voting Rights Act. Voter Suppression is their bread and butter, and so is authoritarian brutality.

Today the SCOTUS ruled in Hamdan v Rumsfeld against the use of both Military Tribunals for detainees as well as upheld the requirements to uphold the Geneva Conventions as a addendem to U.S. Law. Frontpaged on Kos.

In a 5-3 decision this morning (Hamdan v. Rumsfeld), the United States Supreme Court ruled that neither Congress's post-9/11 Authorization for the Use of Military Force, the Uniform Code of Military Justice (UCMJ), nor the inherent powers of the President gave the President the authority to establish military tribunals on Guantanamo Bay to try and convict alleged enemy combatants in the war on terror. The Court found the commissions illegal under both military justice law and the Geneva Convention.

Justice Stevens wrote the majority opinion, supported in its entirety by Justices Breyer, Ginsburg and Souter. In a separate opinion, Justice Kennedy joined enough of it to count. Justices Alito, Scalia and Thomas all dissented, with the Chief Justice sitting out because he ruled in this case when it was previously heard by the D.C. Circuit.

The core of this decision indicates that before setting up his own private personal kingdom of terror on Cuba, the President would have to first gain the approval of Congress. He can't just make shit up on the fly.

From Scotusblog

As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"--including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes). If I'm right about this, it's enormously significant.

The downside is that further suits of this nature are unlikely to further clarify exactly what should be done with the estimated 400 detainees at Guantanemo who the government has shown no intention of charging with a crime (Not to mention the unknown number of "Ghost Detainees" still unaccounted for). The Levin-Graham Amendment of the McCain "anti-torture" ban included a prohibition for detainees - like Hamdi and Hamdan - to sue in civil courts over over their status or even if they were tortured.

Does this recent SCOTUS decision make that ridiculous amendment a moot point? We'll have to wait and see.

In addition to Levin-Graham the Justice Dept has previously claimed that the McCain doesn't even apply to Gitmo. From the Washington Post:

U.S. Cites Exception in Torture Ban
McCain Law May Not Apply to Cuba Prison

By Josh White and Carol D. Leonnig
Washington Post Staff Writers
Friday, March 3, 2006; A04

Bush administration lawyers, fighting a claim of torture by a Guantanamo Bay detainee, yesterday argued that the new law that bans cruel, inhuman or degrading treatment of detainees in U.S. custody does not apply to people held at the military prison.

In federal court yesterday and in legal filings, Justice Department lawyers contended that a detainee at Guantanamo Bay, Cuba, cannot use legislation drafted by Sen. John McCain (R-Ariz.) to challenge treatment that the detainee's lawyers described as "systematic torture."

Government lawyers have argued that another portion of that same law, the Detainee Treatment Act of 2005, removes general access to U.S. courts for all Guantanamo Bay captives. Therefore, they said, Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the anti-torture provisions.

If the McCain bill wasn't trying to prevent torture at Gitmo - where was it supposed to prevent torture, Scranton New Jersey? Will they now then claim that the SCOTUS doesn't apply to Gitmo either, even though this decision was specifically about Gitmo?

The one shining light in this tunnel is the fact that a increasing number of legal scholars are finding umbrage with BushCo in general, and their use of Signing Statments in particular.

In a hearing today, the Senate Judiciary Committee heard testimony on presidential signing statements, which Ranking Member Leahy called "a grave threat to our constitutional system of checks and balances." Recent reports have highlighted how Bush has issued these orders in record numbers and exercised unprecedented overreach by giving himself the authority to ignore certain parts of the laws he signs.

Because of the extralegal nature of the signing statements, there is nothing for Congress or the Supreme Court to actually overrule. Nevertheless, the statements are binding for policy implementation.

Bruce Fein, attorney and renowned legal scholar, told the committee that Bush has essentially given himself a line item veto power by declaring portions of new laws unconstitutional and offering his own revisions.

The Supreme Court has previously struck down the Actual Line-Item Veto power that was granted under President Clinton as extra-constitutional. There is little likelyhood that the Bush Administration could survive a direct challenge to his use of this authority before the SCOTUS, even with the presence of Samuel Alito on the court. If such a decision falls along lines similar to this one - it would still by 5-4 against the President.

His only hope of maintaining the power he has grabbed, is for Bush to push for a Line-Item Veto Amendment - which he's been doing vigorously. But since his re-election Bush hasn't been able to get a single one of his agenda items pushed through, other than the confirmation of Alito, and that was brutal dogfight. His chances of having a Line-Item Veto passed are somewhere south of slim and nil.

I'm sure the Bill O's of the world will claim that the "Far Left" and Activist Courts are undermining the Presidents ability to fight the War on Terror (tm)- and that we'll 'lose" if they had their way. I would argue that if we blithely toss aside who we are, if we ignore the true promise that this nation holds by shredding our own Constitution (particularly the 8th Amendment which clearly bans "Cruel and Unusual Treatment"), if we have to start using Saddam's Tactics -- even if we defeat the terrorist, we've still lost the war. We will have become them, which is exactly what they've been accusing us of being all along.

I think we need to take a more noble and principled path. Yes, it may be more difficult, but it will be well worth it.

As far as Bush goes it's going to take a common citizen or citizens group to look at some of the 750 signing statements the President has made and directly challenge them in court. Make him justify his attempts to circumvent the law and the Constitution, because the truth is - he can't, but he'll go down in flames trying just like he has on Hamdi and Hamdan.

I plan to bring marshmellows.

Vyan

Update: Oh, and by the way -- if the AUMF didn't authorize Gitmo, torture or Military Tribunals, it didn't authorize the NSA Spying program either! Tee hee.

Update 2 Glenn Greenwald strongly agrees that this decision effectively demolishes BushCo justifications for the NSA Programs as being authorized by the AUMF, but points out that all it would take is for Congress to Change the Law to allow this type of action to continue. To invalidate Geneva, they would have to void the treaty - which is less likely, but we are talking about the "Rubber Stamp Congress" here. Just abot any wingbat bullshit is possible for them to try after Gay Marriage and Flag Burning - decertifying Geneva could be next before they get their asses handed to them in November.

Nov 06: We're gonna need a bigger boat...

As you get up occasionally and walk away from the computer screen and interact with the non-online world (the supposedly "real" one), do you ever get an odd feeling of disconnection? Like you're living a parrellel existence that the "real person" on the street simply isn't quite getting, almost as if were living in a horror movie - but some of us just don't know it yet?

Like you're Nancy (Heather Langenkamp) from the Original Nightmare on Elm Street, fighting desperately to stay awake and explain to your dad (John Saxon) that this monster named "Freddie" is killing all your friends, including your boyfriend (Johnny Depp) by invading their dreams...

Well, that Nightmare is real, you are trapped in a terrifying dream - only "Freddie" is the Bush Administration and their Corporate Overlords - and you aren't going to be waking up anytime soon...

Or worse yet, you're Chief Brody on Amity Island in the middle of summer vacation season and you know in you're gut that there's a big f-ing shark out there in the water, but nobody else - especially not the city council who only care about making a profit on tourist season - will believe it until they start seeing bodies floating in with the tide. Maybe not even then.

Well, the bodies are starting to show up as I look at the results of tuesday's election results and I think we're gonna need a bigget boat.

We here on this site and elsewhere understand the gravity of the situation that America finds itself in, like being trapped in a pit of quicksand infested with rapid neo-conservative leaches - the values and ideals that this nation were founded upon have been ever-so-slowy, inch by inch, sinking into oblivion as our life (our blood, treasure and freedom) are sucked out of us.

It's a surprisingly peaceful process, as enzymes from the big business parasites who fuel the Bush Administration and now that cover nearly every portion of our extremeties extrete a steady stream of anesthesia (Gay Marriage, Immigration, Zarqawi) to numb the pain.

We have to keep focused on The Important Stuff (Froomkin).

President Bush is running around the country this week talking about immigration, and on Monday he gave a much-hyped speech on gay marriage. In neither case has he said anything remotely new, and yet the press coverage is intense.

But what about the stuff the White House doesn't want us talking about.

You know, the important stuff.

High on that very long list: The war in Iraq -- and particularly the atrocities allegedly committed by U.S. troops; also, the continued expansion of executive power -- including the administration's warrantless domestic spying.

People - not us of course, all those other people out there - don't yet take the important stuff seriously. They don't yet know how these things affect them in thier lives, in the real world. They don't yet feel the pain (except at the pump).

This is why we couldn't even win the vacant Republican seat left by criminal scum like Randy "Duke" Cunningham. Not only that but the three upstart challengers who called themselves the Impeach Team (Marcy Winograd CA-36, Charles Coleman, Jr. CA-28 and Bob McCloskey CA-29) all lost to their entrenched Democratic incumbents.

We're like Nancy and Chief Brody screaming - "Don't go back to sleep" and "Get out of the water" - and we know that to some of those we're trying to save, we sound like fucking lunatics, but we're still here - and we're gonna keep on screaming about the things that are gradually killing America.

• 750+ Signing Statements
  
• Warrentless Spying on Americans
  
• Haditha
  
• White Phosphorous and Napalm at Fallujah
  
• Torture at Abu Ghraib, Gitmo and Bagram.
  
• Secret Prisons
  
• Insufficient Armor, Helmets and Healthcare for our troops,
  
• The Niger Forgeries that put at War with the Wrong Country (and may have been created as "black propaganda" by U.S. intelligence)
  
• Callous Incompetence that has left post-Katrina NOLA largely a wasteland.
  
• Still No FEMA Director as Hurricane Season '06 Starts
  
• Rampant Election Fraud
• Faked News Reports
• The Exploding Budget and Trade Defecits

And the Flaccid Do Nothing Congress that continues to let all this go on - unabbatted and unregulated.

Freddie and Bruce (The Shark) - under the guise of the neo-Conservative Cabal that has seeped it's way into both our government (Bushco) and top positions at many of our major corporations (Enron, Tyco, Global Crossing) - are still out there, circling, waiting for their next oppurtunity to strike.

Even though we suffered a series of defeats tuesday, we still have Jon Tester and Ned Lamont in the running. We still have an oppurtunity to show long term Faux-mocrats like Jane Harmon that it's not too late to grow a spine. Not yet.

We have to remember what's at stake.

The monster of neo-conservatism has been gathering steam for thirty years, it won't go down easily.

All we need is bigger boat...and a scuba tank, and one lucky shot...

(Although, having Ann Coulter display once again just how batshit crazy she is on National TV doesn't hurt. The truth is - she's far from alone in her viciousness.)

Vyan

November 06: A Re-Defining Moment

2006 is looking to be a watershed year. The year when Democrats once again reemerge on the political stage, not as the red-headed step child to be soundly batted on the ear -- but as a serious force in our national government. Or will they?

From Today's Washington Post.

Some veterans of the 1994 GOP takeover of Congress see worrisome parallels between then and now, in the way once-safe districts are turning into potential problems. Incumbents' poll numbers have softened. Margins against their Democratic opponents have narrowed. Republican voters appear disenchanted. The Bush effect now amounts to a drag of five percentage points or more in many districts.

The changes don't guarantee a Democratic takeover by any means, but they are creating an increasingly asymmetrical battlefield for the fall elections: The number of vulnerable Democratic districts has remained relatively constant while the number of potentially competitive Republican districts continues to climb.

Despite the somewhat rosey projections of the WaPo, Democrats have no reason get get cocky, according to thereisnospoon they have completely failed to take a stand.

Some Democratic leaders have been bold (Conyers, Feingold, Boxer, Jackson-Lee and occasionally Kerry), others of the squishy DLC bent are far more cautious - akwardly straddling the middle -(Clinton), while a small minoritity have been little more than Republican-Lite (Leiberman).

But unlike the Lock-step manuever Republicans have perfected since the Attack of the Rowdy Gingrichites in '94, moving the Democratic Caucus in a single direction has frequently been like herding cats. Republicans are precise and clear on what they want. Lower Taxes. A Strong Military (In spending if not in actual practice). More Abortion Restrictions (But little effort for Pre-natal, Foster care or Adoption). Lower Taxes. More Acknowledgement of Faith in the public sphere. Fewer Gay Rights (If not fewer Gays, period). English First (And Only). Fewer illegals workers (but nice low prices for fruit and textiles products). Bigger Business. (Lower wages) Bigger Jails. More Oil (Less Breathable Air). Did I mention Taxes?

Even on sites such as this or DU, finding consensus on specific policy initiatives is not always easy.

Democratic thought is not monolithic, so when the question comes "What do Democrats want..." they invariably fumble it. When John Stewart asked Howard Dean this very question he showed him a door-hanger. A DOOR-HANGER (for voluanteers to leave behind as they canvas the neighborhood) with a list of the (Secret) Democratic Agenda. Which, in case you're wondering, can be found here at http://www.democrats.org/...

It contains six bullet points.

Honest Leadership and Open Government We will end the Republican culture of curruptions and restore a government as good as the people it serves

Real Security We will protect Americans at home and lead the world by telling the truth to our troops, our citizens and our allies

Energy Independance We Will create a cleaner stronger America by reducing our dependance on foreign oil.

Economic Prosperity and Educational Excellence We will create jobs that will stay in America by restoring oppurtunity and driving innovation.

A Health Care System that works for Everyone We will join 36 other industrialized nations by making sure that everyone has access to affordable healthcare.

Retirement Security We will ensure that a retirement with dignity is the right and expectation of every single American.

Not exactly earth shattering stuff.

If you ask the RNC, they seem to know exactly what the Dems want -- to "Impeach George Bush and raise your taxes". Here's Brit Hume of Faux Gnus on the Dems taking Control.

Michigan Congressman John Conyers, who would head up the House Judiciary Committee should the Democrats retake the house, has already held a mock hearing on impeaching President Bush.

This "blistering" attack has already forced Conyers to back-peddle in the WaPo.

As Republicans have become increasingly nervous about whether they will be able to maintain control of the House in the midterm elections, they have resorted to the straw-man strategy of identifying a parade of horrors to come if Democrats gain the majority. Among these is the assertion that I, as the new chairman of the House Judiciary Committee, would immediately begin impeachment proceedings against President Bush.

I will not do that.

Instead, Conyers promises to setup a bipartisan commission to study and investigate the various failures of the Administration. Again, not exactly earth shattering.

I think we as a nation have a right to expect more. Much more.

Should George W. Bush and Dick Cheney be impeached for gross malfeasance before, during and after 9-11, the Iraq War, the CIA Leak Scandal, Extra-odinary Rendition, Secret Prisons, Indefinate Detention, Torture, Hurricane Katrina, the growing NSA espionage scandal and pissing on 750 laws?

If you ask that question to most Democrats (not on Capital hill, actual Rank and File Democrats) the answer would be a resounding "HELL YES!"

Still, I think Conyers approach to this may be dead on target. If Democrats come screaming into Congress with pay-back for the last 6 years on their mind - they are destined to fail.

I'm not saying that they might not successfully Impeach and possibly even Remove President Bush from office -- I'm saying that if they do this without first successfully making the case to all the American people, Democrat and Republican alike, that this Administration and the Republican Caucas have become a veritable Criminal Enterprise intent on amassing power while raiding our treasury, and exploiting the blood and spirit of our military in the process - the entire effort will ultimately be for naught.

THIS. ADMINISTRATION. MUST. BE. STOPPED.

But we don't need to stage a partisan witch-hunt (ala the Starr/Clinton fiasco).

They must be stopped not because of what they've already done, they must be stopped because of the danger the precedent they've set. The checks and balances of our government must be repaired and restored simply because future administrations (Yes, possibly even Democratic ones) weilding the kind of power that Bush has claimed could destroy the very fabric 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.

If Democrats take over Congress - they've have to put this question to the nation. They'll have to create a Re-defining moment where the country makes a decision about where we are going to go from here -- are we going to continue to excuse and cover-up incompetence and malfeasance by the executive simply because he is the "Commander-in-Chief" and must be honored in a time (endless) of war? Or are we going to insist on something greater, something more noble - that our leaders actually be worthy of their role and duties, and that if they fail they are held accountable in order to protect the nation and the world from the chaos created by their incompetence and mendacity?

I think we can ask, no - demend, for nothing less. Our duty as citizens requires it.

That Re-defining Moment is not yet upon us. Democrats do not need to declare yet whether they are pro or against impeachment and removal - only that they support "Accountability" and restoring our Constitutional checks and balances.

But it's coming - and soon.

Vyan

It's too bad Patrick Kennedy didn't just shoot a lawyer in the face

From Democratic Underground

Because if he had, I don't think MSM would be so obsessed with the possibility that "preferential treatment" might have occurred at the time of the accident. If he had only shot a lawyer in the face, we wouldn't hear any discussion on TV about the possibility that he might have been drunk at the time of the accident. No discussion of how suspicious that no blood test was taken at the time of the accident.

No, if he had only blasted his hunting buddy's face off, we would have more time to spend on Patrick Fitzgerald meeting with Judge Walton on the Plame case. We might see top of the hour coverage on Porter Goss' resignation and the suspicious timing of it in connection with the intelligence link to the Watergate hooker scandal. Because it's not as if MSM would dare employ a double standard. Right?

I think we've all known for quite some time that there's a double-standard in the corporate media. Conservatives have been complaining, well - whining really, for decades about the "Liberal Media Bias". Exactly what that so-called bias ever entailed other than a failure to parrot some of their more psychotic double-speak like "cutting taxes raises revenue" and "providing poor people with food is bad for them" was never made clear.

But those days are long gone.

Now we have Paula Zhan on what used to be known as the Clinton News Network asking Ray McGovern what his "axe to grind" with Secretary Rumsfeld is? Stephen Colbert wasn't fall down on the floor funny - he was Rude, accoring to Richard Cohen. And we have Katie Couric practically frothing at the mouth when DNC Chairman Howard Dean (accurately) told her that the Jack Abramoff situation is "A Republican Scandal".

Sometimes the greatest media lapses are in what they don't ask, rather than in what they do. As noted by the DU poster, they were very quick to ask "why didn't Patrick Kennedy get a sobriety test?" but never did they really ask "why didn't Dick Cheney get a sobriety test - and why did he evade the police for 14 hours after shooting a man in the face?" Or better yet, why hasn't Dick Cheney recognized his obvious problem, as has Kennedy who admits he couldn't even recall the events of the previous night, and immediately checked himself into Whittington's Annonymous?

Any man who isn't satisfied after he shoots the first 50 pen-raised Quayle - then mistakes a 6-foot tall 70 year-old man for an 18-inch bird - clearly has a problem. The first step to recovery is admitting it.

I think we all understand that this kind of bias is the case, that progressive issues are rarely going to get a fair shake on Network or Cable News except on Olbermann, Daily Show or through the Colbert looking-glass. That's the deal, we know it.

We understand that the Washington Post hired, then very quickly fired a right-wing plagarist for "balance" and their so-called "Ombudsman" Deborah Howell still doesn't get it - so why should we be surprised when the News went Patrick Kennedy Mushuggah the other day?

Porter Goss retires as CIA director after less than two years amid indications and rumors that he's connected to Hookergate? Only to be replaced by Gen. Michael I-can-tap-you-if-I-want-to Hayden?

Ah, but none of that is a real story - because a KENNEDY got into a FENDER-BENDER!!!! See - his headlight is cracked, that's NEWS Baybee!

It's long past time we realized qualifies as News in this country.

Britney Spears barefoot in a Gas Station Restroom? News!!

Abortions and unwanted pregnancies rising among poor women due to lack of access to contraception? NOT News.

Is Tom Cruise about to jump on another couch and bitch-slap Matt Laurer again? Film at 11!

Jack Abramoff connected to Saipan Sweatshops? NOT News.

Anna Nicole Smith at the Supreme Court - Anna Nicole Smith at the Supreme Court!! News

Is Karl Rove about to be Indicted? NOT News.

American Idol!! News!

The President decides to ignore over 750 laws as he signs them? NOT News.

See it's easy, once you know the rules. The only odd thing is even with this incredibly lame reporting going on -- the President's approval ratings are in the toilet and circling the bowl. [Ap - 33%, CBS - 33%, USA Today - 34%, Fox - 38%?!]

Just imagine where the Republican Congress and President would be if the media was actually doing their jobs?

Most likely Answer: Out of a job and soon to be Impeached as of November.

What's your fantasy of how the Press should be behaving these days?

Vyan

Why I love David Gregory (MSNBC)

Crossposted on Dailykos

In yesterday's White House press gaggle, David Gregory (MSNBC) just stepped up and Cleaned-Scotty's-Clock and it was a wonderful thing to witness - and it should be remembered, therefore I am presenting it here as well as my own appropriately snarky commentary and background info.

First the Party-line From The White House

MR. McCLELLAN: We've already talked about the FISA court. That is a very important tool, as well, and we make very good use of the FISA tool. But FISA was created in a different time period for longer-term monitoring. This program is for a shorter period of time aimed at detection and prevention. And so that's what it's focus is.

And I think we have to step back and remember that -- and I think the Attorney General talked about this in his remarks yesterday -- there is a longtime tradition in war of engaging in surveillance of the enemy.

Overseas? Yes. Domestically, well yes too if you include COINTELPRO, but I wouldn't recommend using that as your example, Scotty.

That's what this is. We are a nation at war, and there is an enemy that is deadly and determined to strike us again and inflict even greater damage. And we saw the problem highlighted in the 9/11 Commission report when we learned too late about communications that were taking place from two hijackers that were in the United States talking to people outside the United States.

But the problem there wasn't that the couldn't pick up the communications - they did. The problem with some of the most daming communictions was that they didn't translate them soon enough. The 9/11 Commission Report also said this...

In May 2001, the drumbeat of reporting grew louder with reports to top officials that "Bin Ladin public profile may presage attack" and "Bin Ladin network's plans advancing." In early May, a walk-in to the FBI claimed there was a plan to launch attacks on London, Boston, and New York. Attorney General John Ashcroft was briefed by the CIA on May 15 regarding al Qaeda generally and the current threat reporting specifically. The next day brought a report that a phone call to a U.S. embassy had warned that Bin Ladin supporters were planning an attack in the United States using "high explosives." On May 17, based on the previous day's report, the first item on the CSG's agenda was "UBL: Operation Planned in U.S."9 The anonymous caller's tip could not be corroborated.

Why do you need to tap the phones of Americans without a warrant when you have people calling you direcly, and walking in the front door telling you "Osama Bin Ladin is going to attack" - and you don't listen?

Ok, Rant over....back to Scotty.

MCCLENNAN: That's the kind of problem this is designed to detect, and then be able to act and prevent attacks. It's about connecting the dots. That's what the 9/11 Commission said we need to do.

So the President not only had the authority to do what he's doing, but he has the responsibility to do what he is doing, because it's about saving lives. It's about preventing attacks. It's very limited in nature, and it's focused on international communications involving al Qaeda members or affiliated terrorist organizations from either communicating inside the United States to someone outside, or communicating from outside the United States to someone inside. And I think the American people expect us to do everything within our lawful power to protect them. And the President made it very clear that as long as he is President, he will continue acting to do everything he can within his powers and within the law to protect the American people.

But we work very closely with Congress. We have briefed members of Congress on this vital tool over the course of the law few years, and we'll continue to work closely with Congress.

So they've prevented attacks, eh? Which attacks? Who whom? Where? During his Presidency the Clinton Administration prevented attacks on LAX, the UN, the Holland Tunnel, the Lincoln Tunnel, CIA Headquarters and 11 simultaneuos airliner bombs over the pacific. Just what you done for us lately Scotty?

This is where David steps up to the plate.

DAVID GREGORY Q I think that -- I mean, the way I read this question, he's asking, will you ask the FISA court for approval of this program -- not specific instances, but will you ask the FISA court if this is -- if this program, the overall program, is sanctioned under the law. And that's the -- MR. McCLELLAN: Well, if the FISA court wants to talk any more about any communications that they have had with administration officials, that's up to them. It is a highly classified court, for good reasons.

Q They won't talk about it.

MR. McCLELLAN: Well, that's why I leave it up to them. If there's anything more they want to say, then I would leave it up to them.

So basically, the court can't talk about it for security reasons and the President, Attorney General and General Hayden are talking about it, but Scotty won't answer questions about whether they've considered amending the law? Huh?

Q Can I just follow on this point, because let's be clear about a couple of things. First of all, the President argues, asserts, that he has the power to unilaterally authorize this wiretapping, okay? It's not -- he doesn't have the monopoly on the truth of how --

MR. McCLELLAN: The courts have upheld it and previous administrations have asserted it, as well.

Q Well, that was different, and that is, again -- this is your position --

MR. McCLELLAN: Same authority. Same authority, David.

Q -- that's in dispute.

MR. McCLELLAN: No, that's not -- hang on -- that's not in dispute. And look at the Associate Attorney General under the Clinton administration. The courts have upheld this authority in the past. Look at the federal courts. The President talked about it and we provided it in a document. So that's wrong.

Q No, I don't think that's wrong, and we can go into that, but I don't -- our time is not best spent doing that.

No, Scotty it's not the same authority and it's not wrong.. McClellan it would appear is referring to the congressional testimony made in 1993 by Clinton Admin official Jamie Gorelick during the Aldrige Ames case where his home was physically searched without a warrant. At that time, the FISA Law didn't cover physical searches - but was amended to do so in 1995. The Clinton Administration assertion that they had an inherent right to warrantless physical searches of foreign intelligence did not violate FISA. Bush's warrantless electronic surveillance does.

MR. McCLELLAN: That the courts haven't upheld it.

No, the courts have not upheld this authority in the past. The "document" that Scotty is referring too is certainly the 40-page DOJ defense of the extra-FISA program. That document notes the Hamdi case where the court found that an American Citizen could be held as an "Enemy Combatant". It said nothing about surveillance, and further the court insisted on judicial review of the case prior to the designation being assigned to that prisoner. Transfering the rules in Hamdi to the NSA situation would clearly indicate that judicial review and a warrant are still required before subjecting American citizens to the same treatment as foreign terrorist targets.

One of the other cases mentioned by the DOJ, Youngstown v Sawyer involved President Truman taking control of the nations steel mills in order to prevent a strikes in the midst of the Korean War. The court held that the President did not have that power under Article II of the Constitution and his "Command in Chief" duties. The DOJ, bizarrely, argues the reverse. I'm a layman, not a lawyer and I could figure this out, as apparently has David Gregory, what's Scotty's excuse?

Q My question is, instead of spending time trying to fine-tune the rhetoric over what you want to call this program for political purposes, why not seek to amend FISA so that it can better suit your purposes, which is another thing the previous administration did when it wasn't considered to be agile enough? So why not, if you want the program to be more responsive, to be more agile, why not seek to amend FISA?

Seems a perfectly reasonable question to me. If you need this authority, why not ask for it? What was the Patriot Act all about anyway?

MR. McCLELLAN: Let's look at a practical example. Do you expect our commanders, in a time of war, to go to a court while they're trying to surveil the enemy? I don't think so. This is a time of war. This is about wartime surveillance of the enemy. That's what this is about. And we don't ask our commanders to go to the court and ask for approval while they're trying to gain intelligence on the enemy. So I think that's a real practical term to look at it in when you're talking about this issue, because that's what this is about.

Well, gee - do you expect that the "enemy" just might sometimes include the American people? If yes, and you assert that we are now doing law enforcement via the Military you have a problem with the Posse Comitatus Act now don't you? (NSA is a part of DOD btw)

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."

The PCA generally prohibits U.S. military personnel from direct participation in law enforcement activities. Some of those law enforcement activities would include interdicting vehicles, vessels, and aircraft; conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities. Prohibiting direct military involvement in law enforcement is in keeping with long-standing U.S. law and policy limiting the military's role in domestic affairs.

And if the Military is not doing law enforcement, then basically - we are under Martial Law. But then that's exactly what these guys are really thinking isn't it - with their Signing Statements and all. It doesn't matter what the law is if the President simply chooses to ignore the law and make up a quasi-Constitutional Justification that is in direct contradiction to "previous administrations and the courts".

Q There's no way to amend --

MR. McCLELLAN: Well, no, let me back up, because I talked about this the last couple days. I mean, it's a very good question and an important question. FISA is an important tool. We use it. General Hayden talked about that. When we were briefing members of Congress over the course of the last few years -

No, you briefed the "Gang of Eight" and they had no advisory capacity nor could they share the information with anyone else, including their own staff due to security. The Congressional Research Service has noted that failing to notify all of Congress (not just the Gang of Eight) may have broken the law.

MCCLENNAN - I think it was more recently, over, maybe, the last couple years -- I think the Attorney General talked about it -- we talked with congressional leaders, bipartisan congressional leaders, about this very issue: Should we go and get legislation that would reflect the authority the President already has?

Why not? Particularly since FISA is currently the sole and exclusive controlling legal authorization for Foreign (International) Surveilance under Under 18 USC § 2511?

MCCLENNAN - cllAnd those leaders felt that it could compromise our national security interest and this program if we were to go and get legislation passed. Because we don't want to let the enemy know about our play book, and the more you talk about this program, the more potential it has to harm our national security interest. That's why we don't get into talking about the operational aspects about it.

Oh, so you think Al-Qaeda is out there reading the Congressional Record, becoming versed in U.S. Federal Law and would like stop calling the U.S. if they knew you might be listening in? Yeah, right. Logic dictates that they've long ago adapted to the possibility of NSA phone taps on "international" calls and are using code-words and phrases to mask what's really going on. Why stop doing that when calling the U.S.?

Btw, the FISA court is already Secret - so why are you expecting al-Qaeda to get your "play book" and know who we're tapping, when and where? Roving Wiretaps were approved under the Clinton Administration in 1995 weren't they?

MCCLENNAN: But it is important for the American people to understand exactly what this program is and how limited it is and what its purpose is. There's been some misrepresentations. Now, with that said, as I pointed out, we work very closely with Congress. We'll continue to work closely with Congress as we move forward. But the President has the authority and the responsibility to do what he's doing and he's going to keep doing it.

You'll work closely with Congress,eh? Well it seems they don't have the security clearance to even listen to a whistleblower like Russell Tice, and they won't even share information about Katrina which isn't classified in any way shape or form. Tell us another one, Scotty...


Vyan

Conservatives come out against illegal spying

Several Conservatives have begun to crawl out of the woodwork and timidly denounce domestic spying by the Bush Administration. Whodathunkit?

From Kos.

Patriots to Restore Checks and Balances (PRCB) today called upon Congress to hold open, substantive oversight hearings examining the President's authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA).

Former U.S. Rep. Bob Barr, chairman of PRCB, was joined by fellow conservatives Grover Norquist, president of Americans for Tax Reform (ATR); David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman and CEO of the Free Congress Foundation and Alan Gottlieb, founder of the Second Amendment Foundation, in urging lawmakers to use NSA hearings to establish a solid foundation for restoring much needed constitutional checks and balances to intelligence law.

"When the Patriot Act was passed shortly after 9-11, the federal government was granted expanded access to Americans' private information," said Barr. "However, federal law still clearly states that intelligence agents must have a court order to conduct electronic surveillance of Americans on these shores. Yet the federal government overstepped the protections of the Constitution and the plain language of FISA to eavesdrop on Americans' private communication without any judicial checks and without proof that they are involved in terrorism."

The following can be attributed to PRCB members:

"I believe that our executive branch cannot continue to operate without the checks of the other branches. However, I stand behind the President in encouraging Congress to operate cautiously during the hearings so that sensitive government intelligence is not given to our enemies." -- Paul Weyrich, chairman and CEO, Free Congress Foundation

"Public hearings on this issue are essential to addressing the serious concerns raised by alarming revelations of NSA electronic eavesdropping." -- Grover Norquist, president, Americans for Tax Reform

"The need to reform surveillance laws and practices adopted since 9/11 is more apparent now than ever. No one would deny the government the power it needs to protect us all, but when that power poses a threat to the basic rights that make our nation unique, its exercise must be carefully monitored by Congress and the courts. This is not a partisan issue; it is an issue of safeguarding the fundamental freedoms of all Americans so that future administrations do not interpret our laws in ways that pose constitutional concerns." -- David Keene, chairman, American Conservative Union

Much of the wingnutosphere has rallied behind Bush because, well, that's what their Pavlovian instincts tell them to do. The rest of the conservative media has done the same.

Yet here are some of the key figures of the conservative movement essentially calling foul on the administration's egregious overreach. Norquist is literally the central figure of the VRWC. Weyrich, another key figure in the VRWC, was the founding president of the Heritage Foundation and founded the American Legislative Exchange Council. Keene's credentials are self-explanatory. Barr is no surprise. He's an old-school libertarian who has been consulting with the once-hated ACLU.

This should never have been a partisan issue, despite the knee-jerk defense of the indefensible by those who think Bush can't do any wrong.

Kos is exactly correct on this point - this isn't an issue of partisanship, it's an issue of law and disorder. This President is running roughshod over the Constitution, claiming powers that clearly violate the law and attempting to override the clear and concise will of Congress not just once, but over and over again with over 500 "signing statements" to date.

This has to stop. If neccesary - the Presidency needs to be brought down.

Impeach, Remove and Convict King George.

Vyan

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...

Vyan