|
Some weekend reading, perhaps, to prepare for politically seismic
events in the new year. KwC Bush as the new Nixon: Both Wiretapped Illegally, and Impeachably; Both Claimed That a President May Violate
Congress' Laws to Protect National Security By John Dean, Findlaw columnist, December 30,
2005 On Friday, December
16, the New York Times published
a major scoop by James Risen and Eric Lichtblau: They reported that Bush
authorized the National Security Agency (NSA) to spy on Americans without
warrants, ignoring the procedures of the Foreign Intelligence Surveillance Act
(FISA). It was a long story
loaded with astonishing
information
of lawbreaking at the White House. It reported that sometime in 2002, Bush
issued an executive order authorizing NSA to track and intercept international
telephone and/or email exchanges coming into, or out of, the U.S. - when one
party was believed to have direct or indirect ties with al Qaeda. Initially,
Bush and the White
House stonewalled, neither confirming nor denying the president had ignored
the law. Bush refused to discuss it in his
interview with Jim Lehrer. Then, on Saturday, December 17, in his
radio broadcast, Bush admitted that the New
York Times was correct - and thus conceded he had committed an
impeachable offense. There can be no
serious question that warrantless wiretapping, in violation of the law, is
impeachable. After all,
Nixon was charged in Article II of his bill of impeachment with illegal
wiretapping for what he, too, claimed were national security reasons. These parallel
violations underscore the continuing, disturbing parallels between this
Administration and the Nixon Administration - parallels I also discussed in a prior column. Indeed, here, Bush may
have outdone Nixon: Nixon's illegal surveillance was limited; Bush's, it is
developing, may be extraordinarily broad in scope. First reports indicated that NSA was only
monitoring foreign calls,
originating either in the USA or abroad, and that no more than 500 calls were
being covered at any given time. But later reports have suggested that NSA is "data
mining" literally millions of calls - and has been given access by the
telecommunications companies to "switching" stations through which
foreign communications traffic flows. In sum, this is
big-time, Big Brother electronic surveillance. Given the national
security implications of the story, the Times
said they had been sitting on it for a year. And now that it has broken, Bush
has ordered a criminal investigation into the source of the leak. He suggests
that those who might have felt confidence they would not be spied on, now can
have no such confidence, so they may find other methods of communicating. Other
than encryption and code, it is difficult to envision how. Such a criminal
investigation is rather ironic - for the leak's effect was to reveal Bush's own offense. Having
been ferreted out as a criminal, Bush now will try to ferret out the leakers
who revealed him. Nixon's Wiretapping - and the Congressional Action that Followed Through the FBI,
Nixon had wiretapped 5 members of his national security staff, 2 newsmen, and a
staffer at the Department of Defense. These people were targeted because
Nixon's plans for dealing with Vietnam - we were at war at the time - were
ending up on the front page of the New York
Times. Nixon had a plausible
national security justification for the wiretaps: To stop the leaks, which had
meant that not only the public, but America's enemies, were privy to its plans.
But the use of the
information from the wiretaps went far beyond that justification: A few juicy tidbits were used for
political purposes. Accordingly, Congress believed the wiretapping, combined
with the misuse of the information it had gathered, to be an impeachable
offense. Following Nixon's
resignation, Senator Frank Church chaired a committee that investigated the
uses and abuses of the intelligence derived from the wiretaps. From his report
on electronic surveillance, emerged the proposal to create the Foreign
Intelligence Surveillance Act (FISA). The Act both set limits on electronic
surveillance, and created a secret court within the Department of Justice - the
FISA Court -- that could, within these limits, grant law enforcement's requests
to engage in electronic surveillance. The legislative history of FISA makes it
very clear that Congress sought to create laws to govern the uses of
warrantless wiretaps. Thus, Bush's authorization of wiretapping without any
application to the FISA Court violated the law. Whether to Allow Such Wiretaps, Was Congress' Call to Make No one questions the
ends here. No one doubts another terror attack is coming; it is only a question
of when. No one questions the preeminent importance of detecting and preventing
such an attack. What is at issue here, instead, is Bush's means of
achieving his ends: his decision not only to bypass Congress, but to violate
the law it had already established in this area. Congress is
Republican-controlled. Polling shows that a large majority of Americans are
willing to give up their civil liberties to prevent another terror attack. The
USA Patriot Act passed with overwhelming support. So why didn't the
President simply ask Congress for the authority he thought he needed? The answer seems to
be, quite simply, that Vice President Dick Cheney has never recovered from
being President Ford's chief of staff when Congress placed checks on the
presidency. And Cheney
wanted to make the point that he thought it was within a president's power to
ignore Congress' laws relating to the exercise of executive power. Bush has gone along with all such
Cheney plans. No president before
Bush has taken as aggressive a posture -- the position that his powers as
commander-in-chief, under Article II of
the Constitution, license any action he may take in the name of national
security - although Richard Nixon, my former boss, took a similar position. Presidential Powers Regarding National Security: A Nixonian View Nixon famously
claimed, after resigning from office, that when the president undertook an
action in the name of national security, even if he broke the law, it was not illegal. Nixon's thinking (and he was
learned in the law) relied on the precedent established by Abraham Lincoln
during the Civil War. Nixon, quoting Lincoln, said in an interview, "Actions which otherwise would be unconstitutional,
could become lawful if undertaken for the purpose of preserving the
Constitution and the Nation." David Frost, the
interviewer, immediately countered by pointing out that the anti-war
demonstrators upon whom Nixon focused illegal surveillance, were hardly the
equivalent of the rebel South. Nixon responded, "This nation was torn
apart in an ideological way by the war in Vietnam, as much as the Civil War
tore apart the nation when Lincoln was president." It was a weak
rejoinder, but the best he had. Nixon took the same
stance when he responded
to interrogatories proffered by the Senate Select Committee on Government
Operations To Study Intelligence Operations (best know as the "Church
Committee," after its chairman Senator Frank Church). In particular, he
told the committee, "In 1969, during my Administration, warrantless
wiretapping, even by the government, was unlawful, but if undertaken because of
a presidential determination that it was in the interest of national security
was lawful. Support for the legality of such action is found, for example, in
the concurring opinion of Justice White in Katz v. United States." (Katz
is the opinion that established that a wiretap constitutes a "search and
seizure" under the Fourth Amendment, just as surely as a search of one's
living room does - and thus that the Fourth Amendment's warrant requirements
apply to wiretapping.) Nixon rather
presciently anticipated - and provided a rationalization for - Bush: He wrote,
"there have been - and will be in the future - circumstances in which
presidents may lawfully authorize actions in the interest of security of this
country, which if undertaken by other persons, even by the president under
different circumstances, would be illegal." Even if we accept
Nixon's logic for purposes of argument, were the circumstances that faced Bush
the kind of "circumstances" that justify warrantless wiretapping? I
believe the answer is no. Is Bush's Unauthorized Surveillance Action Justified? Not Persuasively. Had Bush issued his
Executive Order on September 12, 2001, as a temporary measure - pending his
seeking Congress approval - those circumstances might have supported his call. Or, had a
particularly serious threat of attack compelled Bush to authorize warrantless
wiretapping in a particular investigation, before he had time to go to
Congress, that too might have been justifiable. But several years have
passed since the broad 2002 Executive Order, and in all that time, Bush has refused to seek legal authority
for his action. Yet
he can hardly miss the fact that Congress has clearly set rules for presidents
in the very situation in which he insists on defying the law. Bush has given one
legal explanation for his actions which borders on the laughable: He claims
that implicit in Congress' authorization of his use of
force against the Taliban in Afghanistan, following the 9/11 attack, was an
exemption from FISA. No sane member of Congress believes that the Authorization
of Military Force provided such an authorization. No first year law student would mistakenly make
such a claim. It is not merely a stretch; it is ludicrous. But the core of Bush's
defense is to rely on the very argument made by Nixon: that the president is
merely exercising his "commander-in-chief" power under Article II of
the Constitution. This, too, is a dubious argument. Its author, John Yoo, is a
bright, but inexperienced and highly partisan young professor at Boalt Law
School, who has been in and out of government service. To see the holes and
fallacies in Yoo's work - embodied in a recently published book - one need only
consult the analysis of Georgetown
University School of Law professor David Cole in the New
York Review of Books. Cole has been plowing this field of the law
for many years, and digs much deeper than Yoo. Since I find Professor
Yoo's legal thinking bordering on fantasy, I was delighted that Professor Cole
closed his real-world analysis on a very realistic note: "Michael
Ignatieff has written that 'it is the very nature of a democracy that it not
only does, but should, fight with one hand tied behind its back. It is also in
the nature of democracy that it prevails against its enemies precisely because
it does.' Yoo persuaded the Bush administration to untie its hand and abandon
the constraints of the rule of law. Perhaps that is why we are not prevailing." To which I can only
add, and recommend, the troubling report by Daniel Benjamin and Steven Simon,
who are experts in terrorism and former members of President Clinton's National
Security Council. They write in their new book The Next Attack: The Failure of the War
on Terror and a Strategy for Getting It Right, that the Bush Administration has utterly failed
to close the venerable loopholes available to terrorist to wreak havoc. The war in Iraq is not addressing
terrorism; rather, it is creating terrorists, and diverting money from the
protection of American interests. Bush's unauthorized
surveillance, in particular, seems very likely to be ineffective. According to
experts with whom I have spoken, Bush's approach is like hunting for the
proverbial needle in the haystack. As sophisticated as NSA's data mining
equipment may be, it cannot, for example, crack codes it does not recognize. So
the terrorist communicating in code may escape detection, even if data mining
does reach him. In short, Bush is
hoping to get
lucky. Such a gamble seems a slim pretext for
acting in such blatant violation of Congress' law. In acting here without Congressional approval,
Bush has underlined
that his Presidency is unchecked - in his and his attorneys' view, utterly beyond the law. Now that he has turned the truly awesome
powers of the NSA on Americans, what asserted powers will Bush use next? And
when - if ever - will we - and Congress -- discover that he is using them? http://writ.corporate.findlaw.com/dean/20051230.html |
_______________________________________________ Futurework mailing list [email protected] http://fes.uwaterloo.ca/mailman/listinfo/futurework
