Spy Anxiety
Jim Hightower on The Imperial Presidency:
Richard Nixon is the godfather of the Bush-Cheney philosophy of executive supremacy. "Well, when the president does it, that means it is not illegal," Tricky Dick explained to us some 30 years ago. This plenipotentiary view of the American presidency (which would send shivers through the founders) is behind the unilateral, secret and illegal directive issued by Bush in 2001, ordering the NSA to spy on ordinary Americans. It's now conceded that untold thousands of citizens who have no connection at all to terrorism have had their phone conversations and emails swept up and monitored during the past four years by NSA agents.This is against the law. First, Bush's directive blatantly violates the Fourth Amendment, for it sends his agents stealing into our lives to search our private communications without probable cause and without a warrant. Second, it goes against the very law creating NSA, which prohibited the agency from domestic spying without court supervision. Third, it bypasses 1978's Foreign Intelligence Surveillance Act, which set up a special FISA court specifically to issue secret warrants so a president could snoop on Americans suspected of being connected to terrorists. Going around this law is a felony, punishable by five years in prison. Yes: George W. Bush broke the law. He's a criminal.
When this sweeping program of presidential eavesdropping was revealed last December by a leak to the New York Times, Bush first tried lying, scoffing that the news report was mere media "speculation." Didn't work. So then he turned defiant, belligerently declaring that damned right he was tapping phones. "If you're talking to a member of al-Qaida," he announced, "we want to know why."
Of course, George, if you have reason to believe that a particular American is talking to al-Qaida, you should scoot over to FISA pronto and get a spy warrant. We don't have time to wait for no stinking court order, he shouts, we gotta jump on these traitors quicker than a gator on a poodle. The FISA system is "too cumbersome" -- we need "agility."
Yeah, well, democracy is supposed to be a little cumbersome, so guys like you don't run amok. Fact is, FISA judges can act PDQ and are hardly restrictive. Of the 5,645 times Bush has requested surveillance warrants, how many did the court reject or defer? Only six! Besides, FISA lets presidents go a-snooping all they want, the instant they want, then come back to court three days later to get the warrant. How cumbersome is that? Even GOP lawmakers didn't buy the agility line, so Bush next tried claiming that Congress had actually given him the go-ahead to bypass the law. On Sept. 14, 2001, he said Congress passed the "authorization for use of military force," empowering him to use all necessary force against the 9/11 terrorists. Yet none of the 518 lawmakers who voted for this say that it included permission for Bush to spy illegally on our people. In fact, George W. specifically asked congressional leaders to give him this permission but was turned down. Finally, Bush has resorted to spouting Nixon's maxim that a president's official actions are inherently legal. Even though he broke the law knowingly and repeatedly, the Bushites assert that it's OK, citing a dangerous and thoroughly un-American defense that, as commander-in-chief, he has the constitutional right to break any law in the interest of national security. In matters of war and foreign policy, he, Cheney, and Alberto "See No Evil" Gonzales claim that the president's authority cannot be checked by Congress or the judiciary -- indeed, they don't even have to be informed.
Nonsense. He's commander-in-chief of the military -- not of the country. He's president, not king. And as president, he's the head of only one of the three co-equal branches. Yet bizarrely and pathetically, Congress has rolled over and even cheered this gross usurpation of its clear constitutional responsibilities -- including its power to declare war, control the public purse, regulate the military, ratify treaties, make laws "necessary and proper" for the conduct of all government, provide oversight of executive actions and generally serve the public as a check and balance against presidential abuses. As Sen. Russ Feingold, the truly fine defender of our rights and liberties, wrote in a February blog: "I cannot describe the feeling I had, sitting on the House floor during Tuesday's State of the Union speech, listening to the president assert that his executive power is, basically, absolute, and watching several members of Congress stand up and cheer him on. It was surreal and disrespectful to our system of government and to the oath that as elected officials we have all sworn to uphold. Cheering? Clapping? Applause? All for violating the law?" The breathtaking notion that Bush can, on his own say-so, thumb his nose at the due process of law and even be a serial lawbreaker has astounded not only Feingold but also a slew of leading right-wing thinkers.
You may find the source objectionable, but here are some quotes from an article written by former federal prosecutor Andrew C. McCarthy in the January 30, 2006 issue of National Review:
Every since it became technologically possible to intercept wire communications, presidents have done so. All of them, going back to FDR, claimed that the powers granted to the chief executive under Article II of the Constitution allowed them to conduct such wiretapping for national-security purposes. Particularly in wartime, this power might be thought indisputable. The president is the commander in chief of the armed forces, and penetrating enemy communications is as much an incident of war-fighting as bombing enemy targets is…
In 1967, the Supreme Court, in Katz v. United States, held that Fourth Amendment protection against unreasonable searches extended to electronic surveillance—meaning that eavesdropping without a judicial warrant was now presumptively unconstitutional. Congress followed by enacting a comprehensive scheme, known as “Title III,” that required law-enforcement agents to obtain a court warrant for probable cause of a crime before conducting electronic surveillance. Yet both Katz and Title III recognized inherent presidential authority to conduct national-security monitoring without being bound by the new warrant requirement…
The Supreme Court undertook to circumscribe this inherent authority in its 1972 Keith decision… Still the Court took pains to exempt from its ruling the “activities of foreign powers or their agents”…
If the president has inherent authority to conduct national-security wiretapping, it is a function of his constitutional warrant. It is not a function of Congress’s having failed until 1978 to flex its own muscles. A constitutional power cannot be altered or limited by statute. Period.
Fritz at April 26, 2006 8:54 AM
Oh, and for a nice refutation of Hightower's "Imperial Presidency" thesis check out David Nichols's The Myth of the Modern Presidency available at Amazon.com.
Fritz at April 26, 2006 8:59 AM
What Fritz said, only more so.
Even IF (big if) it were granted that it is against the law, there's this legal term that has suddenly escaped me (any lawyers in the house?) that means that basically, unless they try to bring such evidence in court, there's no actual penalty for doing it. That is, EVEN IF IT IS ILLEGAL (which is a rather huge hurdle already), the President can still do it with impunity, because the penalty for doing it is... that the evidence gathered can't be used in court. Ok, well, it might even get a case thrown out of court if the other evidence is found to have depended on that banned evidence.
THAT'S IT. (Now, if they release that info to the public or otherwise do bad stuff with it, those are alrady crimes covered elsewhere.)
In short, EVERY President has done this since WWII. It's the norm. GET OVER IT.
"The breathtaking notion that Bush can, on his own say-so, thumb his nose at the due process of law and even be a serial lawbreaker has astounded not only Feingold but also a slew of leading right-wing thinkers."
The breathtaking notion that all those people are so monumentally naive and ignorant, not only of history but also of Constitutional law and the difference between domestic law enforcement and international relations, has astounded not only the knowledgable but also a slew of normal people who took 5 minutes on Google to check it out for themselves.
Deoxy at April 26, 2006 11:38 AM
> EVERY President has done
> this since WWII. It's the
> norm. GET OVER IT.
No. Every time someone says GET OVER IT in matters of privacy, the correct response is BITE ME. I agree with you that it's not new and that Bush 43 isn't especially reprehensible for continuing the tradition, but there's no reason for Americans to admire or accept this "norm." There's no authority that's given to government that's not abused. Mere 'savvy' doesn't lessen the sting of these intrusions. American freedom must respect casual thinkers, too.
Crid at April 26, 2006 2:28 PM
Fritz:
Prove it.
Deoxy
Prove it.
Patrick at April 27, 2006 3:53 AM
In wartime, throughout American History, American's civil liberties have been trampled on. It is SOP. We tolerate it to the degree that we as a nation are really afraid of the enemy.
What is not SOP today is that we are in a war mode declared against a TACTIC we can never defeat, in a war that will only be over if and when the president says its over, period. This is foisted on a people who were not called on to sacrifice anything for the war effort(except sons and daughters whose coffins we are not allowed to see). Its all on credit. Christ, we got a tax cut and we'll get the Chinese to pay for the war. Our kids will get to pay them back. We are placated into tolerating this latest attack on civil liberties. "Well if that's all I have to give up..."
This "war" could go on for generations. What will be the real price our kids will have to pay?
Jim_M at April 27, 2006 8:22 AM
Justice Stewart, delivering the opinion of the court, wrote, in a footnote:
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
Justice Brennan and Douglas, in a concuring opinion, disagreed heartily with Footnote 23.
Justice White, concurring with the opinion of the court, wrote:
In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
Fritz at April 28, 2006 9:28 AM
Patrick,
FindLaw, do you use it?
http://supreme.lp.findlaw.com/
Fritz at April 28, 2006 9:38 AM
It started over two years ago. . . On school, there was this bully who kept choking me, nearly every day for many months. When he was mad or just for no reason at all. Months after that I started feeling unwell at some times in class, having sweaty palms, feeling very nauseaus and hyperventilating. . I went to my doctor, and he said it was just some stress, and gave me some Xanax... but a while ago I read about the post traumatic stress disorder.. . So, could this be caused by the guy who choked me all the time?.
hyperventilatie at July 21, 2011 8:13 PM
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