Four items for your review. As usual, blue highlights and italics are
mine. Links are live. Kwc
Secret surveillance may have occurred
before authorization: Even
before the White House formally authorized a secret program to spy on U.S.
citizens without obtaining warrants, such eavesdropping was occurring and some
of the information was being shared with the FBI, declassified correspondence
and interviews with congressional and intelligence officials indicate.
On Oct. 1, 2001, 3 weeks after the Sept. 11 terrorist attacks, Gen.
Michael V. Hayden, who was running the National Security Agency at the time,
told the House intelligence committee that the agency was broadening its
surveillance authorities, according to a newly released letter sent to him that
month by Minority Leader Nancy Pelosi (Calif.). Pelosi, the ranking Democrat on
the committee, raised concerns in the letter, which was declassified with
several redactions and made public yesterday by her staff.
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/03/AR2006010301460.html?nav=hcmodule
NSA destroyed evidence of illegal domestic spying The National Security Agency, the top-secret spy
shop that has been secretly eavesdropping on Americans under a plan authorized
by Pres. Bush four years ago, destroyed the names of thousands of Americans and
US companies it collected on its own volition following 9/11, because the
agency feared it would be taken to task by lawmakers for conducting unlawful
surveillance on United States citizens without authorization from a court,
according to a little known report published in October 2001 and intelligence
officials familiar with the NSA's operations.
NSA lawyers advised the agency to
immediately destroy the names of thousands of American citizens and businesses it collected shortly after 9/11 in its
quest to target terrorists in this country. NSA lawyers told the agency that the surveillance
was illegal
and that it could not share the data it collected with the CIA or other intelligence
agencies.
The lawyers said the
surveillance could result in numerous lawsuits from people identified in the
surveillance reports, two former US officials told the Houston Chronicle in an October 27, 2001, report, and was illegal despite any terrorist
threat that
existed in the days following 9/11.
http://www.truthout.org/docs_2006/010506I.shtml
Bush bypasses new
torture ban: waiver reserved After
approving the McCain
anti-torture bill last
Friday, Bush issued a ''signing statement" - an official document in which
a president lays out his interpretation of a new law - declaring that he will
view the interrogation limits in the context of his broader powers to protect
national security. This means Bush believes he can waive the restrictions, the
White House and legal specialists said. ''The executive branch shall construe
[the law] in a manner consistent with the constitutional authority of the
President . . . as Commander in Chief," Bush wrote, adding that this
approach ''will assist in achieving the shared objective of the Congress and
the President . . . of protecting the American people from further terrorist
attacks."
Some legal specialists said yesterday that the president's signing
statement, which was posted on the White House website but had gone unnoticed
over the New Year's weekend, raises serious questions about whether he intends
to follow the law.
http://www.boston.com/news/nation/washington/articles/2006/01/04/bush_could_bypass_new_torture_ban/
What happened to conservative legal theories?
by Glenn
Greenwald, Wednesday, January 04, 2006
Listening to the Bush Administration and its defenders try to justify George
Bush’s deliberate and ongoing violations of the law, one can’t help but notice
that the Constitution and Congressional statutes sure do seem quite
"flexible" in the hands of those seeking to defend him - a particular irony given how stridently
Bush followers rail against such legal theories in other contexts. The defenses being dredged up to justify
Bush’s law-breaking certainly are notable for the liberties they take with
"conservative" principles of legal argument, as well as with how
sharply they contradict the legal views which the Administration itself
previously claimed it believed in.
The central problem for
the Administration is that George Bush deliberately engaged in conduct which
FISA clearly and expressly makes it a crime to engage in. All of the legalistic smoke screens
aside, the issue really is that clear. That’s because the Administration cannot
escape the plain and easy-to-understand language of Section 1809 of FISA:
"A person is guilty of an offense if he
intentionally— (1) engages in electronic surveillance under color of law except
as authorized by statute."
The Administration itself admits, as it must, that it engaged in electronic surveillance in a way that
FISA expressly prohibits (by doing so secretly and without judicial approval).
Section 1809 says that anyone who does that is guilty of a criminal offense. The law here is clear, and Bush’s
violations of the law are equally clear. That presents the Administration with
obvious difficulties in defending George Bush.
Because there is no plausible argument to make that Bush’s eavesdropping
complied with the requirements of FISA, Alberto Gonzalez’s Justice Department
is insisting that Bush had the legal right to eavesdrop on Americans in violation of that law. The DoJ issued a detailed Memorandum (.pdf) advocating its 2 principal legal theories as to why
George Bush was permitted to engage in conduct which FISA makes it a crime to
engage in. Both
theories are about as far away as possible from the conservative legal
principles which Bush has always claimed to believe in and which he says he
wants his judicial appointees to apply.
Thus, we have one argument which claims that the 2001 Congressional Resolution
authorizing military force in Afghanistan and against Al Qaeda (the “AUMF”) --
a resolution which obviously never mentioned FISA, eavesdropping or
surveillance, because it had nothing to do with any of those things -- should
nonetheless be "construed" and "interpreted" to have
"impliedly" amended FISA by giving Bush an "exemption"
entitling him to eavesdrop in violation of that law. And this argument is made
even though the Congress which supposedly gave Bush that exemption says that it did no such thing, but to the contrary, expressly refused to provide that very authority.
And then we have the second Bush-defending argument: a dressed-up
Constitutional theory which claims that George Bush has the
"inherent" authority under Article II of the Constitution to violate
Congressional law and eavesdrop on American citizens without the judicial
oversight required by FISA – even though nothing in Article II mentions or even
references the power to eavesdrop, the power to engage in surveillance, or the
right to violate Congressional statutes. Indeed, the only express clause in
Article II which seems to relate to this controversy is one that would rather
strongly undercut the claim that the President has the right to
violate Congressional law. That’s the part mandating that the President "shall take Care that the
Laws be faithfully executed . . . "
So much for plain language and original intent. Who has time for those fancy
constructs when George Bush needs defending? What we have in their place are
implied, hidden amendments to laws which are silently buried in other laws
which don’t even reference the law which it supposedly amended. And that's
backed up by a claim that George Bush has certain Executive powers which the
Constitution doesn’t mention, but which instead, one presumes, are lurking
quietly somewhere in Article II of the Constitution, maybe hiding behind some
penumbras or sprouting from the evolving, breathing document.
Just how frivolous (and, for self-proclaimed judicial conservatives,
hypocritical) these defenses are is demonstrated by the fact that the Bush
Administration itself has aggressively argued against the exact legal theory which it is now trying to peddle in
order to argue that Congress silently gave Bush an "exemption" to
FISA. In the case of Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691 (2003), the Administration vehemently (and
successfully) argued in a Brief to the U.S. Supreme Court (.pdf), signed by Bush’s own Solicitor General, Theodore
Olson, that a statute (such as FISA) cannot be "amended by
implication" in the absence of clear Congressional intent to amend it.
Thus, the Bush Administration itself just two years ago emphasized:
the cardinal rule that repeals by implication
are not favored, and will not be found unless an intent to repeal is clear and
manifest. . . . In the absence of an affirmative showing of an intention to
repeal, the only permissible justification for a repeal by implication is when
the earlier and later statutes are irreconcilable. In other words, where the two statutes are capable
of co-existence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as effective.
So, before George Bush needed an excuse for intentionally violating
FISA, this was the Administration’s own argument - that Congress cannot be said
to have silently repealed its own law except where it
subsequently passes a new law that is in direct conflict with the first one.
The Administration’s previous view of this matter is, of course,
the precise opposite of its position now. The Administration now seeks
to claim that the Congress - when it enacted its 2001 resolution authorizing
the use of military force in Afghanistan and against al Qaeda - somehow
intended with that Resolution to amend FISA and thereby silently and
"impliedly" gave the Administration the right to engage in exactly
the secret, warrantless eavesdropping on American citizens which FISA makes it
a criminal offense to engage in.
What we really have from these paragons of Judicial Restraint trying to defend
George Bush is everything except plain language and original intent – the very
tools of construction which these "conservatives," when not
concocting legal defenses for the President, claim that they believe in. That’s because
the plain language of the law is crystal clear ("A person is guilty of an
offense if he intentionally— (1) engages in electronic surveillance under color
of law except as authorized by statute") and leaves no doubt that George
Bush broke it.
The clarity of this
law is why the Administration is reduced to peddling legal theories which, no matter how they are
sliced, amount to a claim that George Bush has the right to break the law. And to argue that he has that right,
they are employing on George Bush's behalf the very legal theories which
advocates of "judicial restraint" have spent the last two decades
ridiculing and attacking.
http://digbysblog.blogspot.com/2006_01_01_digbysblog_archive.html#113641228933068600
