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.
************************************
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/
Amigo, yes it was good. This one is amazing. This guy actually warned the Senate Intelligence of the possibility of false flag attacks carried out by our government. Brzezinski Suggests False Flag Event Could Kick-Start Iran War
Author: Paul Joseph Watson
Top globalist warns Congress of provocation or terrorist attack inside U.S.
Former National Security Advisor and founding member of the Trilateral Commission Zbigniew Brzezinski tacitly warned a Senate Foreign Relations Committee last week that an attack on Iran could be launched following a staged provocation in Iraq or a false flag terror attack within the U.S.
Brzezinski alluded to the potential for the Bush administration to manufacture a false flag Gulf of Tonkin type incident in describing a "plausible scenario for a military collision with Iran," which would revolve around "some provocation in Iraq or a terrorist act in the US blamed on Iran, culminating in a ?'defensive' US military action against Iran that plunges a lonely America into a spreading and deepening quagmire eventually ranging across Iraq, Iran, Afghanistan and Pakistan."
http://www.libertypost.org/cgi-bin/readart.cgi?ArtNum=176020&Disp=All
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!
cicerone imposter wrote:Hot off the press from the NYT:
February 20, 2007
Court Backs White House on Detainees
By STEPHEN LABATON
WASHINGTON, Feb. 20?-A federal appeals court today upheld the constitutionality of a new law that strips federal courts of the authority to review the cases of foreign prisoners held by the military at the Guantánamo Bay Naval Base in Cuba.
Twice before the United States Supreme Court has ruled that federal courts may consider habeas corpus petitions by the Guantánamo Bay detainees. In response to those decisions, Congress has twice rewritten the law in an attempt to limit the avenues of appeal by the detainees.
The most recent revision to the law, at issue in today's decision, was signed by President Bush last October. It eliminated the jurisdiction of federal courts over habeas challenges by any non-citizens held as enemy combatants, and set up a military review for the prisoners at Guantánamo, with limited right of appeal to the federal courts afterwards.
By a 2-to-1 vote, the United States Court of Appeals for the District of Columbia found that the law, the Military Commissions Act of 2006, did not violate a provision in Article 1 of the Constitution that prevents the government from suspending habeas corpus ?- the right of a detained person to challenge the legality of the detention ?- except in "cases of rebellion or invasion."
The court's majority, citing Supreme Court and other precedent, held that the right of habeas corpus does not extend to foreign citizens detained outside the United States ?- the prisoners covered by the new law. A lower court in December followed the same logic to the same conclusion in a related case, involving Salim Ahmed Hamdan, whose earlier appeal to the Supreme Court had led to the overturning of the previous Congressional attempts to limit the prisoners' avenues to the federal courts.
Bush administration officials hailed the latest decision.
"The decision reaffirms the validity of the framework that Congress established in the Military Commission Act permitting Guantánamo detainees to challenge their detention through combatant status review tribunals with the opportunity for judicial review before the D.C. Circuit," said Erik Ablin, a Justice Department spokesman.
But lawyers representing the detainees vowed to once again seek a review by the Supreme Court.
"This decision empowers the president to do whatever he wishes to prisoners without any legal limitation as long as he does it off shore, and encourages such notorious practices as extraordinary rendition and a contempt for international human rights law," said Shayana Kadidal , a lawyer at the Center for Constitutional Rights, which represents many of the detainees. "The matter will ultimately have to be resolved by the Supreme Court for a third time."
Democrats now in control of Congress said they would move quickly to introduce legislation that would unambiguously give federal courts the right to consider habeas petitions by detainees.
"The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness," said Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee.
The decision today, Lakhdar Boumediene v. George W. Bush, involved a consolidation of the cases of 63 detainees, all from foreign countries, who had sought review in two separate federal district courts in Washington. One federal district judge had ruled in 2005 that she had the authority to consider the cases, while another judge ruled that he did not, and granted the administration's motion to dismiss the cases.
Writing for the court in today's decision, Judge A. Raymond Randolph said that the arguments put forward by the lawyers for the detainees "are creative but not cogent" and that Congress clearly meant to preclude the federal courts from considering the detainees' cases. He said that there were no cases in which the habeas corpus could be used by foreign nationals held at an overseas military base and that the constitution "does not confer rights on aliens without property or presence within the United States."
His opinion was also signed by Judge David B. Sentelle.
In a dissenting opinion, Judge Judith W. Rogers said that the Military Commission Act had violated the constitutional provision that restricts the suspension of the writ of habeas corpus. She reasoned that the suspension clause limits Congressional powers, rather than conferring a right on the accused.
"Prior to the enactment of the Military Commissions Act, the Supreme Court acknowledged that the detainees held at Guantánamo had a statutory right to habeas corpus," Judge Rogers wrote. "The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension."
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.
