According to the Attorney General of the US it does McGentrix wrote:
No, it's another word for not wanting to look up the exact wording. You know that I am referring to the congressional resolution passed in the wake of the September 11 attacks that authorized the invasion of Afghanistan and other counterterrorism measures, so why the silly questions?
The AUMF does not authorize Bush to violate the Fourth Amendment. The AUMF does not expressly or implicitly repeal FISA. The AUMF does not authorize Bush to bypass FISA. The AUMF and FISA are not irreconcilable. FISA specifically allows the government to conduct electronic surveillance without a court order for fifteen days immediately after a war is commenced.
. Do you have access to more information than he does? Are you a more experienced lawyer dealing with these cases than he is? Do you feel that your opinion carries more weight in this matter than his does?
You are wrong. The AG has never said the AUMF authorizes Bush to violate the Fourth Amendment. Only a moron would allege that a congressional statute or resolution can trump the Constitution.
I have extensive legal education, training, and experience--more than enough to know that the Attorney General's legal argument based on the AUMF is without merit. Leading constitutional / legal scholars throughout the nation have evaluated the AG's legal argument and have found it to be without merit.
It doesn't take a lawyer, however, to know that warrantless governmental searchs and seizures of our private communications are contrary to our fundamental constitutional principles. Where's your common sense?
Obviously the program is not violating the fourth amendment then.
If Bush ordered NSA agents to monitor and intercept the private communications sent by or received by any United States person within this country and to do so without obtaining court approval on the basis of probable cause, then the Fourth Amendment has been violated. And, Bush has confirmed that he has ordered NSA agents to do exactly that.
Why is that every congressman that has learned about what the program does has not demanded that it cease? Do you suppose that once they find out the details, they discover that it does not, in fact, break any law?
Given what the president has confirmed thus far, the program does, in fact, violate the Foreign Intelligence Surveillance Act and the Fourth Amendment.
Our representatives in Congress want the executive branch to conduct electronic surveillance of persons who are affiliated with al Qaida. But, our representatives in Congress want the executive branch to do so lawfully and constitutionally. That is why congressional committees are holding hearings. There is a loud and consistent bipartisan calling for the administration to come to Congress and to recommend changes to FISA that will make our pursuit of terrorists more effective. Senior senators and representatives from both parties have insisted on checks and balances.
If you were following the hearing on February 6, 2006, when Gonzales testified before the Senate Judiciary Committee, then you know that senior republicans were urgently admonishing the AG that the president's unilateral and unchecked program was inconsistent with the program established by Congress and this created UNCERTAINTY and constitutional TENSION in the government. NSA employees and military personnel, even if they are ordered to follow a presidential directive, are subject to criminal penalties if following that directive constitutes a violation of federal law (e.g., Uniform Code of Military Justice; FISA). If there is tension and conflict between congressional enactments and presidential orders (like there is now)--how do our people in the field know with any certainty what the "law" is concerning their conduct? We need to give them certainty. We are a government of laws, and the president cannot be allowed to usurp the legislative role of Congress by issuing executive orders that conflict with congressional enactments.
Gonzales claimed the president's unchecked spying program was effective because it was helping us to identify terrorists and to prevent terrorist attacks. One of the senators asked Gonzales an important question: Have we arrested those terrorists that you identified? Why haven't we heard anything about terrorists being identified and arrested?
Gonzales refused to answer the question, but the answer is obvious. International terrorism, domestic terrorism, sabotage, espionage, treason, etc., (the things that United States persons would be surveilled to discover) are federal crimes. Any information of criminal activity that was obtained from warrantless electronic surveillance or ruled the fruit of poisonous tree would be excluded as evidence in the prosecution of these individuals because of the government's violation of the Fourth Amendment. (By the way, FISA includes the exclusionary rule in one of its provisions.) This is the catch-22. Even if the president's program somehow helps to IDENTIFY potential terrorists and PREVENT potential attacks through warrantless electronic surveillance, the president can't arrest these people and hope to have the charges stick.
So . . . what is happening to these United States persons that the administration claims to have identified through the president's program? How has the administration prevented attacks? Have these United States persons simply disappeared into some secret rendition or torture facility--are they still alive? are they still moving among us? What are the secret "operational" details of this program? If United States persons are disappearing without a clue as the victims of some secret government operation, we have FAR GREATER constitutional concerns than ones we currently know about.
Justice Douglas stated the following:
See DRAPER v. UNITED STATES, 358 U.S. 307 (1959)(MR. JUSTICE DOUGLAS, dissenting).
George III in 1777 pressed for a bill which would allow arrests on suspicion of treason committed in America. The words were "suspected of" treason and it was to these words that Wilkes addressed himself in Parliament. "There is not a syllable in the Bill of the degree of probability attending the suspicion. . . . Is it possible, Sir, to give more despotic powers to a bashaw of the Turkish [358 U.S. 307, 317] empire? What security is left for the devoted objects of this Bill against the malice of a prejudiced individual, a wicked magistrate . . . ?" The Speeches of Mr. Wilkes, p. 102.
These words and the complaints against which they were directed were will known on this side of the water. Hamilton wrote about "the practice of arbitrary imprisonments" which he denounced as "the favorite and most formidable instruments of tyranny." The Federalist No. 84. The writs of assistance, against which James Otis proclaimed, 4 were vicious in the same way as the general warrants, since they required no showing of "probable cause" before a magistrate, and since they allowed the police to search on suspicion and without "reasonable grounds" for believing that a crime had been or was being committed. Otis' protest was eloquent; but he lost the case. His speech, however, rallied public opinion. "Then and there," wrote John Adams, "the child Independence was born." 10 Life and Works of John Adams (1856), p. 248.
The attitude of Americans to arrests and searches on suspicion was also greatly influenced by the lettres de cachet extensively used in France. 5 This was an order emanating from the King and countersigned by a minister directing the seizure of a person for purposes of immediate imprisonment or exile. The ministers issued the lettres in an arbitrary manner, often at the request of the head of a noble family to punish a deviant son or relative. See Mirabeau, A Victim of the Lettres de Cachet, 3 Am. Hist. Rev. 19. One who was so arrested [358 U.S. 307, 318] might remain incarcerated indefinitely, as no legal process was available by which he could seek release. "Since the action of the government was secret, his friends might not know whither he had vanished, and he might even be ignorant of the cause of his arrest." 8 The Camb. Mod. Hist. 50. In the Eighteenth Century the practice arose of issuing the lettres in blank, the name to be filled in by the local mandatory. Thus the King could be told in 1770 "that no citizen of your realm is guaranteed against having his liberty sacrificed to revenge. For no one is great enough to be beyond the hate of some minister, nor small enough to be beyond the hate of some clerk." III Encyc. Soc. Sci. 138. As Blackstone wrote, ". . . if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) there would soon be an end of all other rights and immunities." I Commentaries (4th ed. Cooley) *135.
When the actions of our government with respect to United States persons are conducted in SECRET and in violation of our established law, we must ask: Who among us have vanished?
You, me, we can argue about it until the cows come home, but until the facts are known, and I hope they are not until the program is no longer useful as an intelligence gathering tool, we can only conjecture about whether or not it is against the law.
You might be satisfied with a secretive government that spies on its own citizens--or worse--but I'm not. It goes against the very foundation of our democratic republic based on the rule of law and separation of powers--and there is no conjecture about that.