America... Spying on Americans

Debra_Law wrote:

I can PROVE Bush lied via the reasonable inferences that can be drawn from known facts. If you are truly a lawyer, Ticomaya, then you know the function of reasonable inferences.

If you are really a lawyer, Debra_Law -- and by that I mean an attorney who has actually seen the interior of a courtroom on a regular basis ... and I don't mean on television -- you would understand that neither you, nor any of your leftist friends, are going to prove Bush lied based on what you characterize as these "reasonable inferences. "

If the only evidence you have that someone lied is their failure to prove their statements, or attempt to prove them, I do not believe it is a reasonable inference that they lied ... at least I wouldn't feel comfortable relying on that pathetic argument.

And any jurist at the federal appellate court level who would actually follow your legal theory -- and I don't think there are any -- and conclude the Bush Administration lied based on that evidence, would deserve to be removed from the bench for incompetence.

It is apparent that you believe that if the government cannot show probable cause, it is lying. So anytime law enforcement approaches a magistrate seeking a search warrant, and the court does not find probable cause to exist, you would apparently believe a "reasonable" inference could be drawn that the government was lying. Further, you believe that if the government doesn't even attempt to show pc, then it is reasonable to infer that the government is lying. Without taking into consideration all of the other possible scenarios and explanations, your theory is really weak on its face, Debra, and you know it (at least I hope you know it. ).

If you want to express your personal opinion that Bush is a liar, and claim to reach that conclusion based on what you believe to be "reasonable" inferences, go right ahead. You are entitled to hold your opinion strongly, as am I. But you shouldn't attempt to pass your personal beliefs off as anything resembling a legal process.

But if you feel strongly that your nonsensical argument is more than pure nonsense -- as I claim -- I'd be willing to make a wager with you (a gentleman/woman's wager, of course): None of what you claim can be shown as lies based on "reasonable inferences" will be so shown.

Given a sufficient majority, I have no doubt that the Democrats will impeach Bush, if for no other reason than evening the score. Unless new information is revealed, if he is cast out of office by the Democrats, my faith in the system and ability of principle to rise above politics will be gravely shaken.

For years, Bush said court orders required for spying

AFP | December 21 2005

WASHINGTON (AFP) - US President George W. Bush, caught up in a domestic spying controversy, for the past two years has assured Americans worried about expanded government anti-terrorism powers that court orders were needed to tap telephones.

Bush has drawn fire over a 2002 order enabling the National Security Agency to monitor, without a judge's go-ahead, the telephone and electronic mail of US citizens suspected of Al-Qaeda ties when they are in touch with someone abroad.

Critics have charged that the unprecedented move is an abuse of power and a violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which requires court approval of wiretaps and electronic surveillance.

The White House has fired back that Bush's move is legal under the US Constitution and a congressional resolution, after the September 11, 2001 terrorist attacks, that authorized the use of force in Afghanistan.

In 2004 and 2005, Bush repeatedly argued that the controversial Patriot Act package of anti-terrorism laws safeguards civil liberties because US authorities still need a warrant to tap telephones in the United States.

"Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order," he said on April 20, 2004 in Buffalo, New York.

"Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so," he added.

On April 19, 2004, Bush said the Patriot Act enabled law-enforcement officials to use "roving wiretaps," which are not fixed to a particular telephone, against terrorism, as they had been against organized crime.

"You see, what that meant is if you got a wiretap by court order -- and by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example," he said in Hershey, Pennsylvania.

But under Bush's super-secret order, first revealed Friday by the New York Times and details of which have been confirmed by Bush and other top US officials, the National Security Agency does not need that court's approval.

"A couple of things that are very important for you to understand about the Patriot Act. First of all, any action that takes place by law enforcement requires a court order," he said July 14, 2004 in Fond Du Lac, Wisconsin.

"In other words, the government can't move on wiretaps or roving wiretaps without getting a court order," he said. "What the Patriot Act said is let's give our law enforcement the tools necessary, without abridging the Constitution of the United States, the tools necessary to defend America."

The president has also repeatedly said that the need to seek such warrants means "the judicial branch has a strong oversight role."

"Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property," he said in June.

"Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the United States," he added in remarks at the Ohio State Highway Patrol Academy.

He made similar comments in Baltimore, Maryland, on July 20 2005.

Vice President Dick Cheney offered similar reassurances at a Patriot Act event in June 2004, saying that "all of the investigative tools" under the law "require the approval of a judge before they can be carried out."

"And similar statutes have been on the book for years, and tested in the courts, and found to be constitutional," he said in Kansas City, Missouri.

Asked whether Bush had misled the US public, Bush spokesman Scott McClellan said Tuesday that Bush "was talking about (the issue) in the context of the Patriot Act."

Why, Debra L A W, the same way we believed what came out of the lying mouth of Billy Clinton who told us all on TV- I never had sexual relations with that woman, Monica Lewinsky.

As I am sure you are aware, Bill was not convicted by the Senate. His defenders, Snake Carville and mealy mouth Lanny Davis kept insisting that the public was not interested in his "peccadillos" and that we should "move-on"

You can quote from law manuals but you do not seem to know that the large mass of the American public does not know or care about the fine points of law.

I am sure that you are aware that Bill Clinton's lies under oath did not amount to Perjury in the strict technical sense.

Yet. the American Public was astonished that his lies were not, as a matter of fact, treated as perjurious.

I am sure you are aware of the entire story. Bill Clinton told the grand jury that he and Monica were never "alone"---of course, Bill, in his inimitable style, GAVE HIS OWN PRIVATE DEFINITION OF 'ALONE"


Lying to the public??? Come on, Debra L A W. You took History courses in school. Did Jack Kennedy lie to the public when he said that he looked Khruschev in the eye and Krushchev blinked? It made Jack look like a real hero yet years later, after testimony from some of Jack's key staff, it was revealed that Jack's amanuensis, his brother, the Attorney General, made a secret deal with the Soviets that if they would remove the missles from Cuba, the USA would take the missles out of Turkey( which were, of course, aimed at the Soviet Union.

Charles Krauthammer pointed out: [...]

WASHINGTON Testifying before a Senate committee last April, General Michael Hayden, then chief of the National Security Agency, emphasized how scrupulously the agency was protecting Americans from its electronic snooping. . . .

. . . At a news conference at the White House on Monday, Hayden also emphasized that the program's operations had "intense oversight" by the agency's general counsel and inspector general as well as the Justice Department. He said decisions on targets were made by agency employees and required two people, including a shift supervisor, to sign off on them, recording "what created the operational imperative."

. . . But many questions remain about the secret program, including some that Aid said were raised pointedly by his contacts at the agency:

Did agency officials volunteer to perform the eavesdropping without warrants, or did the White House order it over agency objections?

Why was it not possible to use warrants, as the law appears to require, from the Foreign Intelligence Surveillance Court, which granted 1,754 such warrants last year and did not deny a single application?

If the court was considered too slow or cumbersome, why did the agency not ask Congress to adjust the law and legalize what it wanted to do?

. . . For anyone familiar with the agency's history, the revelations recalled the mid-1970s, when the Senate's Church Committee and the Rockefeller Commission exposed the agency's abuse of Americans' privacy.

Under one program, called Shamrock, the agency and its predecessors for decades collected copies of all international telegrams leaving or entering the United States from the major telegraph companies. Another program, code-named Minaret, kept watch lists of Americans who caught the government's interest because of activism against the Vietnam War or other political stances.

In reaction to the abuses, Congress in 1978 passed the Foreign Intelligence Surveillance Act, which banned eavesdropping on Americans unless there was reason to believe they were agents of a foreign country or an international terror group. In such cases, the National Security Agency - or the Federal Bureau of Investigation, which usually takes the lead in domestic wiretaps - had to present its evidence to a judge from the Foreign Intelligence Surveillance Court, which then issued a warrant.

Loch Johnson, an intelligence historian now teaching at Yale University who served on the Church Committee staff, said the 1978 reforms were the result of lengthy bipartisan negotiations. "To pick up the paper and see that all of the carefully crafted language, across party lines, to put together FISA, has been dismissed by secret executive order is very disheartening," Johnson said.

Recently, various Bush Administration initiatives have combined to dramatically reduce the power of individuals to keep their affairs secret from the government. Yet at the same time, the Administration has repeatedly denied the public basic information about how the government conducts its affairs.

This potent policy combination -- in which individuals are stripped of privacy even as the government is further swathed in it -- is seriously jeopardizing our claim to be a free society. And it is only worsened by the Administration's overall strategy of changing federal law not by legislation, but rather by regulation and executive order -- and thus without public hearings and debate -- and of keeping the press at arms length from information about the war effort. . . .

. . . The government's "privacy," however, is well protected -- even though in a democracy, the idea of a private government should be unthinkable, an oxymoron. Over the last week, for instance, attention has turned to several Administration initiatives designed to protect the government's secrets from public scrutiny. . . .

The Inability to Know If Government Restrictions Are Justified

The government's arrogation of far greater power than it had prior to September 11 is particularly dangerous when coupled with its insistence on much less accountability. Indeed, in the absence of a serious explanation from the Administration (and there has been none), one is left with the sinking feeling that Bush's team is gripped with either a consuming fear of failure or, more darkly, a genuine Star Chamber mentality. Either way, the Administration's strategy is formula for governmental error, abuse, and cover-up.

Earning Our Trust

At bottom, the Administration's program, buoyed by exuberant polling data, amounts to a giant "trust us." But that raises the troubling question of whether the Administration has earned our trust.

Prior to September 11, the great achievement of the Bush Administration was the passage of a giant individual tax cut, which was sold to the American people on the basis of a equally large lie. The lie concerned the effect the tax package would actually have on the (now illusory) budget surplus and as many economists vouched, Bush's numbers are off by a trillion.

Since September 11, the Administration's major policy initiative is a giant corporate tax cut which, again, is being sold to the American people on the big lie strategy for marketing bad ideas. Although countless economists agree that a corporate tax cut, especially a retroactive one (as this largely is), will have little or no short-term effect on the economy, Bush and his cronies in Congress are selling it shamelessly as a short-term "stimulus" package for the ailing economy.

In between these great bookends of fiscal policy, lie a host of other political shenanigans. Recall, for example, the cooked-up energy crisis that the Bush-Cheney team tried to exploit as a bailout for their energy mogul friends, such as the folks at Enron.

In light of this history, if the Administration wants to curtail civil liberties in the name of security, then let them do so as openly as possible. A basically forgiving and trusting public should be able to assess over time whether the trade-offs their leaders have mandated are justified and wise. In short, to borrow a timeworn phrase, let us trust, but verify.

. . . Today, we face claims of unprecedented executive power by an Administration that seeks to do more and more on its own, while revealing less and less to the American people. How we respond to this "just trust us" approach to governing may well define what we are as a nation, domestically and abroad, for a long time to come.

Our response is all the more important in light of the fact that in one crucial respect, trust was not warranted: The weapons of mass destruction claim that was the rationale for sending our soldiers to die, simply proved false. This Administration has cried "Wolf!" once already; how can we know now if the wolf is really at the door?

. . . It seems plain, by now, that 9/11 created a semi-permanent seismic upheaval in our national psyche. As Judge Richard Posner has written, society engages in an inevitable balancing between security and liberty. For the foreseeable future, the reality is that we will be striking that balance in favor greater governmental power to ensure security, even at the price of some liberty. And, thus, old nostrums about the inalienable "right to be left alone" may well fall on deaf ears.

At the same time, however, the issues of executive power, and the power of government to invade and destroy individual lives, may give some focus and coherence for a new political agenda - an agenda that might appropriately be called an agenda for accountability.

Ideally, this agenda could unite liberals and conservatives alike. Libertarians, conservative and liberal, who traditionally have pushed to curtail power with strong recognition of individual rights, may discover that accountability, while it does not curtail power, at least can rein it in. And conservative moralists may begin to see that without accountability, their morality will be honored only in the breach.

Most people would agree that government needs the power to respond vigorously and effectively to the new threats we face. The real dispute is over accountability for the exercise of such power. No one -- of any political bent -- supports the general use of torture or rendition for all prisoners or detainees, so everyone must be concerned, at a minimum, with the conditions under which these powers are used, and the need for accountability of those who use them.

We live in an era when government officials want to know more and more about us, and to exercise more and more power over us, while revealing less and less about what they are up to, with fewer and fewer consequences for their mistakes.

That is a formula for anti-democratic disaster. And in response, we need to develop a new version of the old notion - trust but verify. In future columns, I will address the particular mechanisms of accountability we may need; for now, it's important to see that we simply cannot live without them.

. . . Over the past four years, the executive has repeatedly tried to make sure the federal courts and the legislative branch have no oversight at all as to whom it detains, on what ground, for how long, and under what conditions -- including conditions of extreme torture such as waterboarding.

The Bush Administration took power from the courts by spuriously arguing that Guantanamo detainees had no access to the Great Writ of habeas corpus - a contention that the Supreme Court handily rejected, but that kept the issue tied up in litigation for years. It would have been more honest for the Administration to suspend habeas corpus for these prisoners, and accept the brunt of public criticism for doing so.

The Bush Administration has also tried to moot cases before courts can rule on crucial issues of detention -- allowing the supposedly dangerous American citizen Yaser Hamdi to go live in Saudi Arabia, and indicting American citizen Jose Padilla on charges very different from the "dirty bomb" allegations that supposedly justified detaining him for years.

And the Bush Administration took power from Congress by acting as if the Congressionally-ratified Geneva Convention does not apply. Meanwhile, its CIA has reportedly administered a network of secret foreign prisons -- unbeknownst to the courts and, it seems, to Congress (or much of it).

Now, once again, the President has bypassed the federal courts and Congress entirely - with the Executive refusing even to avail itself of the separate, secret FISA court convened by Congress as the only entity with the power to authorize clandestine surveillance of espionage or terrorism suspects.

Importantly, the question now before the country is not some marginal blurring of lines between the three departments of government. The question is whether the Executive department will overwhelmingly dominate the other two - and, especially, the federal courts. President Bush claims Congressional leaders, at least, knew of his warrantless wiretapping, but no court was told.

The Bush Administration has taken the position that it has inherent constitutional authority to exempt itself from all legal constraint when the President invokes his commander-in-chief authority to respond to external national security threats. Surely, this position is wrong.

The Executive's Tactics: "Paper," Conceal, Trot Out the Paper

The Administration's M.O. in all such initiatives seems to be consistent. Within the Executive Branch, it uses the Department of Justice's Office of Legal Counsel - which used to serve as a neutral arbiter on questions of Executive power - as a veritable department of justification: a place where Executive Branch ideologues concoct defenses, no matter how one-sided or incomplete, for every act the President would like to undertake. It is from OLC, for instance, that the notorious torture memos came - and now, the justification for warrantless wiretaps.

In this way, the President can always claim that he was acting within his legal authority as the Justice Department itself defined it. But as the attorneys currently staffing OLC are not inclined to see any constitutional constraint on Presidential power at all, it is absurd to rely on their supposedly drawing the boundaries of the authority within which the President can operate.

In their view, there are no such boundaries. Yet they have produced lengthy analyses to "paper" this simple, incredible view, which might have been expressed in a single naked, unpersuasive sentence.

Next, the Administration shrouds its conduct in a thick veil of secrecy so that not only us ordinary folk, but even high-ranking Congressional officials will have no idea what power the President is actually exercising. And of course, the Administration has terrified potential whistleblowers through threats of investigation and prosecution. That means two more potential groups who might have argued for, or set, boundaries are silenced: Members of Congress, and the small group of those last few conscientious persons within the Administration who still believe it ought to comply with the Constitution, and are willing to say so.

Then, when the Administration's actions finally come to light, its officials trot out whatever legal justifications its lawyers have cooked up. In the past, these justifications have either been rejected by the courts (as when the Supreme Court emphatically rejected the Administration's view of its authority over enemy combatants) or exposed as astonishingly weak (as with the notorious "torture memos"). But OLC did, at least, give the Administration some paper to wave around, with lawyers' names on top.

These "legal" explanations are also invariably accompanied by an insistence that everything the Administration is doing is a necessary component of the amorphous war on terror, and that the American people can and should trust their President to do the right thing. But this argument simply can't justify the Executive's usurpation of power: After all, America has faced crises before without deciding to revert to monarchy.

The Wiretapping: Different Issue, Same Modus Operandi

This latest episode - of warrantless wiretapping - exhibits the same m.o. The Administration is not yet releasing its internal legal analysis for why the President could flout Congress's scheme for authorizing secret surveillance of terrorism suspects. But the contours of this analysis are becoming clearer.

As a first line of defense, the Administration is claiming that Congress, when it enacted its Authorization of the Use of Military Force (AUMF) in the immediate aftermath of 9/11, gave the President a free pass to end-run the FISA court.

This argument is risible. As a general matter, the law strongly disfavors such implied repeals of existing statutes: If a law is meant to decimate prior law, it ought to say that's what it's doing, and generally, it does. And especially when the prior law relates to constitutional rights - here, Fourth Amendment rights - its repeal ought to be crystal clear, so that repeal can immediately be challenged in court.

In addition, nothing in the debate over AUMF suggests that Congress had anything like the NSA surveillance program in mind when it gave Bush the go-ahead to attack Al Qaeda in Afghanistan. After all, that decision was a no-brainer, at the time. What Congressperson was gaming out what would happen years ahead? And again, where in the silence is authorization found?

By this logic, the Administration could invoke the AUMF to override pretty much any federal statute. And that's surely wrong.

Moreover, on a more specific level, Congress purposefully limited the AUMF to the use of force against persons directly connected to Al Qaeda. From what has emerged, the Administration's secret wiretapping program appears to cover a multitude of persons who would not qualify as targets under the AUMF - and, thus, the AUMF rationale falls of its own weight.

The President's real argument, however, is not based on the AUMF, but - once again -- on what he claims is his inherent constitutional powers as commander-in-chief. Here, the President's claim seems breathtaking in scope. He appears to be claiming that the President may disregard every law as he - in his own discretion - deems necessary, to fight a war on terror that has no clearly defined scope, nor any clearly defined foe, nor any knowable end point.

Furthermore, under this theory, it would appear that Congress has no power to curb the President's authority -- because the President alone has the power to define the terrorist threat and the means necessary to combat it.

This is not a constitutional design I recognize. Wasn't one of the Framers' primary concerns to avoid the concentration of such power in a king-like chief executive? Didn't the Framers believe that such a concentration of power was deeply corrupting? And hasn't history only reinforced those lessons?

Revision of the Law May Be Necessary, but Ignoring and Circumventing It Was Not

This issue, it's important to note, is not a political one, and should not be divisive. It may be that this country needs to revise its laws to respond effectively to terrorist threats - and that is the policy issue on which right and left will predictably differ, just as they have on the USA Patriot Act.

But what we all should be able to agree on, is that the Executive's simply opting to act illegally -- without even asking its own same-party Congress to change the law - is wrong.

Perhaps FISA needs to be revamped. Notably, it already contains exceptions for emergencies and the FISA court has a long history of working cooperatively with the intelligence agencies, But some say that the kind of "data mining" the government absolutely must do won't pass muster under current FISA court standards, and that therefore, FISA must be amended.

I don't know whether these claims are true; I'm willing to hear arguments on both sides. It's the missing debate on this, that is the national shame here.

Unilateral Executive Power Is Tyranny, Plain and Simple

I might even accept, for the purposes of argument, that, in the panicky aftermath of 9/11, it was understandable for the President to act unilaterally to protect against a potential second-wave attack, regardless of constitutional limits.

But over four years have passed, and there has been copious time for deliberation and, if necessary, Congressional action. In this context, it simply cannot be that the President, acting alone, has the permanent authority he now claims to override a carefully-wrought congressional scheme for fighting terrorism, and enact his own set of secret rules.

Naturally, such a scheme implicates civil liberties, as enshrined in our Constitution. It is not the President's job, alone, to make the nation's trade-offs between security and privacy. Congress ought to legislate, and if it goes too far, the Supreme Court ought to make sure its legislation stays within constitutional bounds.

But even worse, such a scheme threatens basic democratic principles. This Administration wants virtually unlimited power with essentially no accountability. I might almost be able to stomach Bush's "just trust me" claims of Executive power, if the President could be made truly accountable for his decisions down the road. But Bush wants the power with no public debate and a minimum of public disclosure.

I wouldn't trust any Administration with such a blank check. And this isn't just any Administration. It's an Administration with a deeply troubling history of mistakes and obfuscation, an Administration that seems to expand its definition of terrorism however it finds convenient, an Administration that brooks none of the internal dissent that might check authoritarian impulses.

Against that backdrop, the new revelations of warrantless wiretapping, and the Administration's latest set of explanations, sound less like a plan to fight terror than like tyranny's engines, raring to go.