Bush's domestic spying: constitutional? impeachable?

WASHINGTON (Reuters) - President George W. Bush's decision to eavesdrop on people within the United States was backed by the U.S. Congress' authorization of military force after the September 11, 2001, attacks, Attorney General Alberto Gonzales said on Monday.

"There were many people, many lawyers, within the administration who advised the president that he had inherent authority as commander in chief under the Constitution to engage in this kind of signals intelligence of our enemy," Gonzales said in an interview with CNN.

"We also believe that the authorization to use force which was passed by the Congress in the days following the attacks of September 11th constituted additional authorization for the president to engage in this kind of" electronic surveillance, he said.

Gonzales' comments were the latest effort by the administration to defend a covert domestic spying program first reported by The New York Times on Friday. It was the first time the Bush administration has indicated what specific legal grounds it based its actions on.

Several Republican and Democratic lawmakers have backed a planned hearing on the issue by Senate Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican. Many lawmakers have questioned whether domestic spying violates the U.S. Constitution.

After initially refusing to comment on The New York Times report, Bush said on Saturday that after the September 11 attacks, he had authorized the National Security Agency "to intercept the international communications of people with known links to al Qaeda and related terrorist organizations."

Secretary of State Condoleezza Rice reiterated Bush's statement that the wiretapping of telephone conversations and other communications was legal and did not violate the U.S. Constitution.

A 1978 law, the Foreign Intelligence Surveillance Act, makes it illegal to spy on U.S. citizens in the United States without court approval.

Gonzales said Congress had granted an exception when it authorized the president to use "all necessary and appropriate force."

"The Foreign Intelligence Surveillance Act provides that you must get a court order to engage in electronic surveillance of the type that the president talked about on Saturday, except as otherwise authorized by Congress," he told CNN.

"We believe that other authorization by Congress exists in the authorization of the use of military force that was passed by the Congress in the days after September 11," he added.

It's an interesting read but I noticed that it only refers to the use of the military outside of the U.S. and it never once mentions the Congress's constitutional authority to regulate land and naval forces.

It seems to be very incomplete to me...

Good point. I think it's a stretch but am interested to know how they make it.

My interpretation of pages 9-10:

Any authority not enumerated to Congress is automatically given to the President. That is their interpretation of "plenary." Pretty broad.

Also, where speaking of "enemies" one must keep in mind that the Patriot act redefined that term to include individuals and groups without a country or government. It no longer matters where they may live or operate.

That's interesting. I'll have to find a reference but I'm pretty sure that the Constitution says any powers not given to Congress or the President are retained by the states or the people. But I might be thinking of rights. Let me look.

Here we are:

I think that needs to be arrowed a bit. The claim they are making is that the Constitution grants the President the power to direct and control the military and that it grants the Congress some other authorities over the military (funding, equipping, etc..). As a result, their conclusion is that any military activity that falls outside the powers granted to the congress are bestowed upon the President.

IMO, you'd have a hard time demonstrating that the power to direct military action falls to the states or "the people".

Ah, so they meant any powers specific to the military, that's a little different than my first interpretation. Even so, is the NSA a military entity?

Yes. The NSA is an agency with the DoD.

I wanted to revive this thread. On other threads and in editorials today, Bush backers are citing a FISA Court of Appeals decision as crediting the Executive with the inherent power to conduct searches without a warrant for foreign intelligence purposes.

It can be found in pdf here. http://news.findlaw.com/wp/docs/terrorism/fisa111802opn.pdf

As I'm reading, I am starting to grasp the concepts involved. Before FISA, apparently, the president had this right, but it was not absolute. He still had to be this side of the 4th amendment. Congress created FISA as a way for the president to ensure that the searches (surveillance) met 4th amendment requirements. So what I seem to be getting is that if the president chooses to conduct searches outside of FISA he runs the risk of running afoul of the 4th amendment, which he doesn't have the right to do. So then it's up to someone to show that their rights were violated. But with secret surveillance, how could you argue?

Very interesting indeed.

I heard that Cheney mentioned a case against an American Citizen who was convicted relative to aiding or providing information to al-Queda. Cheney mentioned that this eavesdropping was used to "get him".

I will try to find out who it was, but I presume the attornioes for the defendant would have brought this issue up during the trial.

Sounds promising.

http://www.usdoj.gov/opa/pr/2003/October/03_crm_589.htm

This is the guy I heard Cheney refer to last evening.

An excerpt from the link.

"Faris admitted that upon returning to the United States from Pakistan in April 2002, he researched "gas cutters" - the equipment for severing bridge suspension cables - and the New York City bridge on the Internet. Between April 2002 and March 2003, he sent several coded messages through another individual to his longtime friend in Pakistan, indicating he had been unsuccessful in his attempts to obtain the necessary equipment. Faris admitted to traveling to New York City in late 2002 to examine the bridge, and said he concluded that the plot to destroy the bridge by severing cables was unlikely to succeed because of the bridge's security and structure. In early 2003, he sent a message that "the weather is too hot" - a coded message indicating that the bridge plot was unlikely to succeed.

Federal law prohibits the providing of material support and resources to designated foreign terrorist organizations. Al Qaeda was designated by the Secretary of State in 1999 to be a foreign terrorist organization, and redesignated as such in October 2001.

The Faris case was prosecuted by attorneys from the U.S. Attorney's Office for the Eastern District of Virginia and the Counterterrorism Section of the Criminal Division, U.S. Department of Justice, along with assistance from the U.S. Attorney's Office for the Southern District of Ohio. The investigation was led by the Federal Bureau of Investigation. "

Looks like he pleaded guilty so maybe the evidence never came up in court.

Or a lazy lawyer. Why I wonder, the Judge did not allow hin to withdraw the guilty plea?

I don't know, did he want to withdraw the guilty plea? Maybe he had a look at the evidence and pleaded out. Maybe the government was interested in getting him to plead guilty so they wouldn't have to respond to a challenge of how the evidence was obtained -- like in the Ames case.

"Faris, a/k/a Mohammad Rauf, 34, of Columbus, Ohio, was sentenced this afternoon by U.S. District Court Judge Leonie M. Brinkema, at federal court in Alexandria, Virginia. Before sentencing Faris, Judge Brinkema denied Faris' request that he be allowed to withdraw his guilty plea. "

Ah, I didn't see that. Interesting.

FreeDuck -- I'm currently travelling, so didn't find the time yet to read the case you linked to. But thanks for the link, I'll read the case as soon as I can.

Woiyo -- thanks for your link. Do you remember Cheney saying that when they eavesdropped on the man who wanted to bring down Brooklyn Bridge, they did it without a warrant, and they couldn't have done it if they had had to obtain one?

I'll paraphrase his quote," As a result of actions like this, we caught Faris".

I took that to mean they did it without a warrent.