From Solon.com:
Bush's illegal spying
The president defied a major Supreme Court ruling to authorize hundreds of wiretaps inside the U.S.
By David Cole
Page 1December 20, 2005 | With the revelation of domestic spying by the National Security Agency, the message transmitted by the Bush White House is crystal clear: When the president decides existing law is insufficient to protect Americans, he'll move ahead on his own and do whatever he deems necessary in the war on terror.
Bush is defiantly battling critics, insisting that his decision to conduct warrantless wiretaps on hundreds of people inside the United States, including American citizens, was necessary and fully consistent with the Constitution and federal law. Neither claim stands up to scrutiny. The president acted unnecessarily and, more significantly, in direct violation of a criminal law.
The secret spying program was said to be necessary because getting court approval under the Foreign Intelligence Surveillance Act is too time-consuming. That position is difficult to accept: Warrants requested under FISA can be approved in a matter of hours, and the statute allows the government in emergency situations to put a wiretap in place immediately and then seek court approval later, within 72 hours. But the true reason behind the administration's position is less difficult to decode -- the desire to circumvent a key limitation of FISA. Despite the statute's breadth, it permits wiretaps only on agents of foreign powers, and would not have permitted them on persons not directly connected to al-Qaida. Apparently seeking to cast a much wider net after 9/11, the president simply ignored the law and unilaterally -- and secretly -- authorized warrantless wiretaps on Americans.
Was it legal to do so? Attorney General Alberto Gonzales argues that the president's authority rests on two foundations: Congress' authorization of the president to use military force against al-Qaida and the Constitution's vesting of power in the president as commander in chief, which necessarily includes gathering "signals intelligence" on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president's assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation's steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.
The Supreme Court's rationale for rejecting Truman's claims applies with full force to Bush's policy. In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority "is at its maximum," and will generally be upheld. Where Congress has been silent, the president acts in a "zone of twilight" in which legality "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." But where the president acts in defiance of "the expressed or implied will of Congress," Justice Jackson maintained, his power is "at its lowest ebb," and his actions can be sustained only if Congress has no authority to regulate the subject at all.
In the steel seizure case, Congress had considered and rejected giving the president the authority to seize businesses in the face of threatened strikes, thereby placing Truman's action in the third of Justice Jackson's categories. As to the war power, Justice Jackson noted, "the Constitution did not contemplate that the Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries, and its inhabitants."
Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.
Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy's communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority.
In light of Congress' explicit rejection of unchecked wiretap authority, Bush, like Truman before him, is clearly in Justice Jackson's third category. To uphold the president here would require finding that Congress has no authority at all to regulate domestic wiretaps of Americans -- a proposition that would require overturning decades of established federal law built on congressional regulation of electronic surveillance.
Had the president's legal advisors consulted Youngstown, the leading Supreme Court case on unilateral executive power in wartime, they would have realized that the appropriate course, if the president felt FISA was insufficient, was not to act secretly and unilaterally in defiance of the law, but to ask Congress to change the law. Bush had a convenient vehicle to do so; the administration delivered legislation within a week and a half of 9/11 that ultimately became the PATRIOT Act, and that granted numerous expansions of FISA authority -- including the infamous "libraries" provision and an expanded ability to conduct foreign intelligence wiretaps in criminal investigations.
Bush has argued that seeking approval for the wiretaps more openly might somehow have tipped off al-Qaida to the possibility it would be subject to surveillance. But many U.S. tactics in the war on terror, in addition to the provisions under FISA, already put terrorists on notice of precisely that possibility. Moreover, Bush's argument proves too much, because it could be applied to every counterterrorism statute. The price of democracy -- and indeed, its strength -- is that the broad outlines of government must be agreed upon in public, not imposed unilaterally behind closed doors.
It is possible, of course, that the president's advisors overlooked the Youngstown precedent, despite its status as the court's most important case on executive power during wartime. In the infamous Justice Department torture memorandum of August 2002, John Yoo -- who also reportedly wrote the memo justifying domestic wiretaps -- made a similar argument that the commander-in-chief authority included the power to order torture, in direct contravention of a statute criminalizing torture and a treaty prohibiting it under all circumstances. That memo did not even cite Youngstown. But ignorance is no excuse. The president acted in clear contravention of a criminal law enacted by Congress and a Supreme Court precedent, both directly on point.
Bush acted, in other words, as if there are no checks and balances in the American system of government. Some things changed drastically after 9/11, but we cannot allow that to be one of them.
You posted that in the wrong thread, C.I.
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No, Blueflame, i don't have an argument similar to that of Gonzales. Gonzales maintains that the administration has the authority to act in the arbitrary and illegal manner which i condemn just as much as you do. My argument is simply that they haven't gotten away with it, and i doubt that they ever will. They have tried, but they have not yet succeeded, nor have they consistently denied citizens their constitutional rights. As compared to other administrations in this nation, they are no better, and very likely not to much worse.
Telling me what argument many Americans make is meaningless, that is argumentum ad numerum. As your mother might once have said, if many Americans had jumped off a cliff, would you join them? As Anatole France put, because fifty million people believe a wrong thing, it is still a wrong thing.
You are also indulging argumentum ad populum. Just because the New York Times or an author you respect says something, doesn't make it so. Citing Franks or Brezinski is the same kind of appeal to elite opinion.
Finally, you are applying to me a "if you're not for us, you're against us" principle. Just because i don't agree with you doesn't mean that i agree with Gonzales or that goofy little **** on Pennsylvania Avenue. You asked a question, and i answered it. Even if the clown were stupid enough to attempt it, i don't for a moment believe that he could pull it off. That doesn't warrant you aspersing my character by attempting to claim that i think like that jackass Gonzales and hold the same views as he does.
"The law also facilitates militarized police round-ups and detention of protesters, so called "illegal aliens," "potential terrorists" and other "undesirables" for detention in facilities already contracted for and under construction by Halliburton. That's right. Under the cover of a trumped-up "immigration emergency" and the frenzied militarization of the southern border, detention camps are being constructed right under our noses, camps designed for anyone who resists the foreign and domestic agenda of the Bush administration."
http://www.towardfreedom.com/home/content/view/911/
Have fun there in La-La Land . . . bye . . .
(This is a very pretty good article)
"KBR would build the centers for the Homeland Security Department for an unexpected influx of immigrants, to house people in the event of a natural disaster or for new programs that require additional detention space."
Only a few independent journalists, such as Peter Dale Scott and Maureen Farrell, have pursued what the Bush administration might actually be thinking.
Scott speculated that the "detention centers could be used to detain American citizens if the Bush administration were to declare martial law."
http://www.alternet.org/rights/32647/
Bush is pushing for his armageddon.
yup
i also agree that in many situations martial law would never work in this country,but if there did happen to be a huge attack on america for example a nuke blows up one of our smalls cities,no one would try to stop him this country would be put on lock down and only a handful of people would put up a fight in witch they would die or go to prison. i for one would die lets just hope and pray that no such attack ever takes place!
You've posted this article without personal commentary and so I don't know what your take on it is.
To me though it certainly suggests that our system of government is working just fine.
One would have to cast an awfully wide net of conspiracy and inlude quite a number of independent person of integrity to arrive at any sort of conclusion that this decision is part of a grand plan by "Bushies."
Because the result isn't what one prefers, doesn't mean the process is rigged.
If Leahy can lead the Dem controlled congress to rewrite the law (already rewritten twice to make clear it's intentions) to alter it original intention - so be it. He will then need to get it past a Bush veto. If he can, the system works again. It would be foolish for those of us who might disagree with such a result to claim it reflected in anyway a conspiracy on the part of Democrats to turn the country over to foreigners.
As for the lead question:
If Bush declared Martial Law I would be alarmed, but I strongly suspect that I would be far more alarmed by the circumstances that led to him taking such a drastic step. There seems to be a silly notion among some folks that he's just waiting for a suicide bomber to attack a mall so he can seize total control of the government.
He has less than a year in his term. Obviously, if he plans on establishing a dictatorship something big is going to have to happen within the next eleven months. For those of you who fear this is the Bushie plan, 2008 is going to be a very tense year.
BTW if blueflame's reaction to a Bush declaration of martial law is to laugh, why is so worked up about it?
Could this whole thread be based on a typo? "Martial" should have been "marital"? If marital law was declared? Makes sense with the high divorce rate.
