Watergate: Then and Now
President Bush has admitted he has authorized illegal spying on U. S. citizens and will continue to do so. This came after he and distinguished members of Congress got caught with their hands in the cookie jar. This comes at a particularly bad time for President Bush as he touts the Iraqi elections and exhorts Congress to approve the Patriot Act.
That does not change the serious nature of his admission. President Bush claims he is authorized as Commander-in-Chief to do anything he wants. He's wrong.
Any government constituted as a military regime (President Bush's claim based on his defense as Commander-in-Chief, not mine) will abuse and make mistakes with their privilege when no safeguards to illegal search and seizure are in place. The provisions in the Constitution and the laws are there to protect citizens from a police state. If those in Homeland Security still can't protect America from terrorist attack after the billions of dollars thrown at them, then their competence is what at issue. That includes the President.
President Bush claims he is fighting for freedom and democracy in Iraq. He should practice fighting for freedom and democracy here at home. Until he does, he can put as much lipstick on the pig as he wants, but it is still a pig.
I remember Watergate well. Does President Bush? Is that why he admitted what he's doing right away?
posted by Lynn @ 12:01 PM
6 comments
6 Comments:
I hate to repeat a post verbatim, but:
"(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year."
-Foreign Intelligence Surveillance Act (FISA), section 1802
For more on the conditions of such an arrangement (including that "a group engaged in international terrorism or activities in preparation therefore" is considered a "foreign power" mentioned in the law), see this informative piece by James S. Robbins.
(You'll also note that leading members of Congress were briefed on the surveillence in question more than a dozen times. As such, I'd think they'd make your shit list too. ;)...)
This post at Volokh is pretty good too. Actually, I think it is much better in that it presents both sides well... either way, I think that the assertion that this is slam-dunk (as Volokh calls it) "illegal" can be seriously questioned.
Curtis,
Thanks for the links. I am still reading the Volokh link.
I did mention distinguished members of Congress at the beginning of the post. :)
Curtis,
After reading through the section of U. S. legal code you cited I find the full text seems to undermine the idea that the President of the United States is authorized to perform serveillance on U. S. citizens without a court order. In fact, it seems to imply just the opposite. Here is the full section:
"Section 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
(a)(1) Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a
court order under this subchapter to acquire foreign intelligence
information for periods of up to one year if the Attorney General
certifies in writing under oath that -
(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between
or among foreign powers, as defined in section 1801(a)(1), (2),
or (3) of this title; or
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this
title;
(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and
any changes thereto to the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence at
least thirty days prior to their effective date, unless the
Attorney General determines immediate action is required and
notifies the committees immediately of such minimization procedures
and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may
be conducted only in accordance with the Attorney General's
certification and the minimization procedures adopted by him. The
Attorney General shall assess compliance with such procedures and
shall report such assessments to the House Permanent Select
Committee on Intelligence and the Senate Select Committee on
Intelligence under the provisions of section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to
the court established under section 1803(a) of this title a copy of
his certification. Such certification shall be maintained under
security measures established by the Chief Justice with the
concurrence of the Attorney General, in consultation with the
Director of Central Intelligence, and shall remain sealed unless -
(A) an application for a court order with respect to the
surveillance is made under sections 1801(h)(4) and 1804 of this
title; or
(B) the certification is necessary to determine the legality of
the surveillance under section 1806(f) of this title.
(4) With respect to electronic surveillance authorized by this
subsection, the Attorney General may direct a specified
communication common carrier to -
(A) furnish all information, facilities, or technical
assistance necessary to accomplish the electronic surveillance in
such a manner as will protect its secrecy and produce a minimum
of interference with the services that such carrier is providing
its customers; and
(B) maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished which such
carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such
carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are
authorized if the President has, by written authorization,
empowered the Attorney General to approve applications to the court
having jurisdiction under section 1803 of this title, and a judge
to whom an application is made may, notwithstanding any other law,
grant an order, in conformity with section 1805 of this title,
approving electronic surveillance of a foreign power or an agent of
a foreign power for the purpose of obtaining foreign intelligence
information, except that the court shall not have jurisdiction to
grant any order approving electronic surveillance directed solely
as described in paragraph (1)(A) of subsection (a) of this section
unless such surveillance may involve the acquisition of
communications of any United States person.
I'm aware of that section, although I'm glad you brought it up again. I should have made it clearer that I was attempting to address the issue of warrantless searches as not inheriently illegal. That's my own fault in communication, and I appreciate you noticing it and pointing it out.
As for the action itself, I think the linked article on Volokh is the best that I've seen for and against. It is clear that whatever your opinion, you must admit that the opposition has a good argument as well. As such, I think the assertion that this is "Bush's Watergate" (an idea that many have floated) to be rather over the top.
Curtis,
I agree that the Volokh article brings up some interesting issues.
As for over the top, I'll mention a couple of things. The original Watergate investigation was considered over the top by many at the time. FISA resulted from the whole affair.
A lot of folks didn't think President Clinton would be impeached either since in the minds of many it was about a White House sex scandal. The lesson learned there was not to lie to a Grand Jury when there was aggressive prosecuter on the case.
It seems as though in the current case Congress must investigate it if they are performing their duty in any meaningful way. A proper investigation will require people testifying about secret security information. That will inevitably lead to battles over access to that information. I'd almost bet that innocent people who were acqainted with suspected terrorists were ensnared in wiretaps.
As the issue is being discussed everywhere in the media and Blogland, I won't belabor a lot of points. However, it does seem odd to me that President Bush felt compelled to perform surveillance on people the way he has when it is easy to get a secret court order under the current laws.
The thing that ought to come out of this one way or the other is a well drawn line in everybody's mind about what it means to protect civil liberties.
I come out on the side that says giving the Executive Branch carte blanche to do anything they want in what they feel is a state of emergency and to whom they feel is a terrorist is over the top. As a practical matter, if a person has no accountability for their actions, they have no incentive to perform their actions properly under the law.
The President's explanation so far has been trust me. For my part, I say, no way, Mr. President. I don't trust him. I don't trust any President to do the right thing unless they are compelled to do it under pain of punishment by the law.
In any case, I don't think this issue is going away soon.
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