Sorry, but copying and pasting from Whitehouse.gov doesn't amount to a coherent response.
We already know that the President/exec branch don't believe they are held by the law, but that doens't change the fact that they are in fact bound by FISA to seek a judge's approval before wiretapping American phones.
All of the points raised by the WH have been disproven; for your edification, I will show how.
* The President Has The Inherent Authority Under The Constitution, As Commander-In-Chief, To Authorize The NSA Terrorist Surveillance Program. AG GONZALES: "I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity. Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States. Signals intelligence is very important for the United States government to know what the enemy is doing, to know what the enemy is about to do." (The White House, Press Briefing, 12/19/05)
This is a flat out falsehood. Just because they believe
the Prez has the authority, doesn't mean that he does have this authority. In fact, there is a law on the books which says that he specifically does not
have the authority to do so - FISA.
Saying 'we believe he has the inherent authority' and then talking about the history of Wiretapping doesn't amount to an argument of why
he has the authority. So this is nothing more than an assertion that the duly enacted laws of the US are not binding upon the President, which is ridiculous.
* The Congress Confirmed And Supplemented This Authority When It Passed The Authorization For The Use Of Military Force In The Wake Of The 9/11 Attacks. AG GONZALES: "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act ... requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday ... unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence." (The White House, Press Briefing, 12/19/05)
This was refuted in the recent Hamdan
decision by the SC and can be considered completely wrong.
These talking points are a little out of date, btw.
* The Supreme Court Ruled That The AUMF's Authorization To "Use All Necessary And Appropriate Force" Encompasses The "Fundamental Incident[s] Of Waging War." AG GONZALES: "[O]ne might argue, now, wait a minute, there's nothing in the authorization to use force that specifically mentions electronic surveillance. Let me take you back to a case that the Supreme Court reviewed this past - in 2004, the Hamdi decision. ... [In Hamdi, the Supreme Court said that] it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder - the duration of the hostilities. So even though the authorization to use force did not mention the word, 'detention,' she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, 'authorize the President to use all necessary and appropriate force.'" (The White House, Press Briefing, 12/19/05)
Once again, Hamdan
shows this opinion to be completely wrong.
* Interception Of Communications Has Been Authorized Since President Roosevelt In 1940. "[Interception of communications for foreign intelligence purposes] have been authorized by Presidents at least since the administration of Franklin Roosevelt in 1940." ("Legal Authorities Supporting The Activities Of The National Security Agency Described By The President," U.S. Department Of Justice, 1/19/06)
Here they are talking about a time BEFORE FISA was passed. It is irrelevant to this discussion what past presidents have done before a law was passed to limit their authority.
* Every Federal Appellate Court To Rule On The Issue Has Concluded That The President Has Inherent Authority To Conduct Warrantless Searches. "The courts uniformly have approved this longstanding Executive Branch practice. Indeed, every federal appellate court to rule on the question has concluded that, even in peacetime, the President has inherent constitutional authority, consistent with the Fourth Amendment, to conduct searches for foreign intelligence purposes without securing a judicial warrant." ("Legal Authorities Supporting The Activities Of The National Security Agency Described By The President," U.S. Department Of Justice, 1/19/06)
Note that they don't mention the cases. I am not aware of any lower court ruling which has the power to invalidate a Congressional statute.
The document in question is also somewhat suspect, as we know for a fact that the domestic spying process began before
9/11 even happened. So to say that Bush authorized it in wake of 9/11 is a flat-out lie, yet it is the first line of the document in question (legal authorities...)
* Congressional Leaders "Have Been Briefed More Than A Dozen Times" On The NSA Terrorist Surveillance Program. THE PRESIDENT: "Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization." (President Bush, Radio Address, 12/17/05)
* Rep Pete Hoekstra (R-MI) Says That Members Of Congress Had Multiple Opportunities To Ask Questions And Express Concerns. REP. HOEKSTRA: "When the program began, I guess, roughly four years ago, you know, congressional leaders were brought in. The leadership of the House and the Senate, the leadership of the House and Senate intelligence committees - I've been chair for about 15 months - I've been briefed four times on this, I've been given every opportunity to ask questions about the program, to ask questions about the legality of the program, to understand the scope of the program and how it works and, most importantly, the impact it has. I've had every opportunity to get information on the program. And I have a responsibility, as the chairman of the Intelligence Committee, that if I believe the law is being broken to stand up in that meeting and say, stop it and we're going to do everything in Congress. The problem that we have right now is we have a whole bunch of Democrats who were for this program before they were against it and the only thing that has changed is that the story was illegally, in a damaging way, leaked to The New York Times." (ABC's "This Week," 1/22/06)
* These Briefings Are Fully Consistent With The National Security Act Of 1947. The Act expressly states that Executive Branch briefings should be conducted in a manner consistent with "due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." (50 USC 413a(a))
What can we say about this? The congressional leaders in question weren't even legally allowed to talk about the case. If they had objections, they couldn't voice them to anyone other than the Prez.
We don't know who was told what, in said briefings. But it is entirely possible that post 9/11, Democrats were to cowed by the fear/terrorism angle to object. That doesn't make Bush's actions legal in any way, however.
* Former Clinton Administration Associate Attorney General Writes That "FISA Does Not Anticipate A Post-Sept. 11 Situation." "The administration has offered the further defense that FISA's reference to surveillance 'authorized by statute' is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to 'use all necessary and appropriate force' to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action. But even if the NSA activity is 'electronic surveillance' and the Sept. 11 resolution is not 'statutory authorization' within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, 'encroach upon the president's constitutional power.' FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment." (John Schmidt, Op-Ed, "President Had Legal Authority To OK Taps," The Chicago Tribune, 12/21/05)
The President doesn't have the 'Constitutional Power' to spy upon his own people. Opinions about the 'post-9/11' situation are immaterial to the argument and deceptive.
* The Government Continues To Use The FISA Court But Must Preserve The Flexibility To Act With Speed In All Circumstances. AG GONZALES: "Well, we continue to go to the FISA court and obtain orders. It is a very important tool that we continue to utilize. ... The operators out at NSA tell me that we don't have the speed and the agility that we need, in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978. There have been tremendous advances in technology ... since then." (The White House, Press Briefing, 12/19/05)
Just because there have been advances in technology, doesn't make it legal to use those advances. If the president wanted to change the laws in order to have more flexibility in wiretapping, he should have done so; he doesn't have the right to arbitrarily decide to break laws based upon new technologies coming into play.
* Because Of Its Speed, The NSA Terrorist Surveillance Program Has Provided Crucial Information Otherwise Not Available. GENERAL HAYDEN: "I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available." QUESTION: "Through the court? Because of the speed that you got it?" GENERAL HAYDEN: "Yes, because of the speed, because of the procedures, because of the processes and requirements set up in the FISA process, I can say unequivocally that we have used this program in lieu of that and this program has been successful." (The White House, Press Briefing, 12/19/05)
Assertion, no evdience to back it up, no reason to believe it.
You should bring an argument in your own words, or something with better sources, if you wish to substantially attack my assertion that the president has broken the law AND his moral and ethical obligations to Ameircans.
Here's Glenn Greenwald discussing just how hypocritical the Prez is on this issue:
Sunday, September 10, 2006
The President's FISA statements now are the opposite of what he said in October, 2001
The President this week urged passage of the Specter bill by arguing that FISA is an inadequate tool for eavesdropping on terrorists, and that we therefore need to legalize his warrantless surveillance program. This is his explanation as to why FISA is inadequate:
When FISA was passed in 1978, there was no widely accessible Internet, and almost all calls were made on fixed landlines. Since then, the nature of communications has changed, quite dramatically. The terrorists who want to harm America can now buy disposable cell phones, and open anonymous e-mail addresses. Our laws need to change to take these changes into account. If an al Qaeda commander or associate is calling into the United States, we need to know why they're calling. And Congress needs to pass legislation supporting this program. (Applause.)
This statement is completely misleading, because it depicts FISA as some sort of relic from 1978 that doesn't take into account all of this new, complicated communications technology. But FISA was amended in October, 2001 at the request of the President precisely in order to take that technology into account, and when it was, the President himself even used virtually the same language back then to praise the FISA amendments that he is now using to claim that FISA is obsolete
. Here is what President Bush said once FISA was amended in October, 2001 via the Patriot Act:
The flaw which President Bush is claiming exists with FISA today is exactly the flaw which he himself said -- using almost identical language -- was eliminated by the 2001 amendments to FISA which he requested
We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .
Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones.
. In his radio address the next weekend (on October 27, 2001), he emphasized the same point by praising the new FISA as follows:
Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.
So, in October, 2001, the President said the problem with FISA is that it was an old law which -- to use his words -- was "written in the era of rotary telephones." Therefore, he argued, his power to eavesdrop needed to be expanded, and when it was, he said that "nder the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists."
But now that he wants all limits on his eavesdropping power eliminated via the Specter bill, he is saying the exact opposite of what he said in October, 2001. Now he is pretending that those amendments never happened and is claiming that he has to work under a FISA law passed in 1978 which does not take into account that "the nature of communications has changed, quite dramatically." The dishonesty of that is so glaring and obvious but he knows that he can get away with it because going back and looking at what he said in October, 2001 and comparing it to what he is saying now is something the media simply will not do.
And just as a side note, the President's supporters have been insisting -- and his own Attorney General has been explicitly considering -- that the reporters and editors of The New York Times who revealed this illegal eavesdropping program should be imprisoned on the ground that they "blew the cover" on this program and thereby rendered it ineffective. If that's true, how could it also be the case that "Congress needs to pass legislation supporting this program"? Why would it be urgent that Congress pass a law legalizing a program which The New York Times destroyed when -- to use the President's words -- "details of the Terrorist Surveillance Program were leaked." When he urged the imprisonment of Jim Risen and Bill Keller (along with Dana Priest), Bill Bennett argued:
How do we know [the NSA story] damaged us? Well, it revealed the existence of the surveillance program - so people are going to stop making calls - since they are now aware of this - they're going to adjust their behavior . . . .
The President argues that "if an al Qaeda commander or associate is calling into the United States, we need to know why they're calling." Leaving aside the obvious point that eavesdropping on such conversations is already permissible under FISA, shouldn't it be the case, as Bennett claimed, that al Qaeda commanders no longer call into the U.S. ever since they "learned" from the New York Times that we are eavesdropping on their conversations?
The contradictions in the President's claims as to why he needs to be able to eavesdrop on Americans without judicial oversight are endless. The media cannot, I suppose, be expected to make all of those contradictions clear. For instance, perhaps it is too much to ask of the media to explain that Alberto Gonazles himself previously said -- contrary to the President's arguments -- that the "Terrorist Surveillance Program" does not expand the scope of conversations on which the President can eavesdrop, because the standard it uses is the same exact standard as FISA uses. As Gonzales said in a February 28, 2006 letter (.pdf) to Sen. Arlen Specter (written in order to enable Gonzales to retract numerous statements he made at the Judiciary Committee hearing):
[quote]Senator Feingold noted that, on September 10, 2002, then-Associate Deputy Attorney General David S. Kris testified before the Senate Judiciary Committee. Sen. Feingold quoted Mr. Kris' statement that "we cannot monitor anyone today whom we could not have monitored last year."
Given that Kris was comparing a time when the "Terrorist Surveillance Program" was in place (September, 2002) to a time when FISA was the only means of eavesdropping (September, 2001), his statement -- that "we cannot monitor anyone today whom we could not have monitored last year" -- would by necessity mean that the "TSP" does not expand the President's power to eavesdrop. And that is exactly what Gonzales said was the case:
In any event, [Mr. Kris'] statements are also accurate with respect to the President's Terrorist Surveillance Program, because the program involves the interception of communications only when there is probable cause ("reasonable grounds to believe") that at least one party to the communication is an agent of a foreign power (al Qaeda or an affiliated terrorist organization).
The President's own Attorney General has told the Senate that the "TSP" and FISA use exactly the same standard for eavesdropping -- i.e., that there is eavesdropping "only when there is probable cause" for believing that one party is part of a terrorist group. At least by that reasoning, FISA doesn't restrict the President's power to eavesdrop on terrorists. Instead, it merely requires that such eavesdropping be undertaken only with judicial oversight to prevent abuse. Even if that fundamental contradiction is too complex for journalists to consider, they ought to be able to digest and convey the simplest and most self-evident contradictions.
The fact that the President himself said that FISA -- once it was amended in October, 2001 -- was sufficient to enable him to eavesdrop on all modern forms of communication used by terrorists, only now to say the opposite, is not that difficult to explain. And it is equally easy, at least, to make clear that the difference between FISA and the so-called "Terrorist Surveillance Program" is not whether he has the power to eavesdrop on the communications of terrorists (he has that power under both), but instead is whether he can eavesdrop in secret and without judicial oversight.
UPDATE: Anonymous Liberal -- who originally was the first blogger to find and post the October, 2001 comments from Bush -- points out similar and additional contradictions embedded in Bush's FISA comments this week, including those which fall into the category A.L. labels as "pathologically dishonest."
posted by Glenn Greenwald | 8:50 AM[/quote]
There hasn't been a strong defense offered by anyone as to why the President should be allowed to break the law. But I thank you for responding, McG.