You know me, I would not put anything past 41 or 43 (or 42 for that matter & soon to be 44).

Center for Constitutional Rights


CCR Applauds Resignation of Wiretap Judge, Denounces “Outlaw Administration”



Synopsis

On December 21, 2005 in New York, the Center for Constitutional Rights applauded the principled resignation of U.S. District Judge James Robertson in protest of the administration’s illegal, warrantless wiretapping and spying on Americans. Judge Robertson was appointed by the late Chief Justice William Rehnquist to sit on the 11-member secret Foreign Intelligence Surveillance Court, which is in charge of issuing wiretap warrants for national security. It was recently revealed that the Bush administration authorized the National Security Agency to wiretap U.S. citizens without obtaining the legally required warrants from the FISA court. The Center for Constitutional Rights called the Bush White House “an outlaw administration that is destroying the essence of our democracy, which was founded on principles of an Executive limited by law in order to protect the citizenry from tyranny.”




Apparently Judge Robertson did not want to aid and abet criminal NSA electronic surveillance by approving Foreign Intelligence Court warrants that may be based on illegally gathered evidence obtained from such surveillance. CCR Legal Director Bill Goodman said, "Traditionally the FISA Court has been extremely compliant with requests from the Justice Department for national security wiretap warrants - perhaps too compliant. The resignation of Judge Robertson clearly signals the profound reluctance and refusal of one of those judges to be used as a facade for this Administration's claims of unchecked power to engage in unconstitutional policies. We need more judges like Robertson in America - he is to be applauded for his courage."

According to CCR, this latest example of the Bush administration's holding itself above the law follows the pattern of assertions that it can torture in the name of national security and lock people up and throw away the key without any due process.

CCR President Michael Ratner said, "The Bush administration has moved us from a government responsible and accountable to the people to one that dictates to the people. Every American should be in political rebellion against the criminals now running this country."

http://www.ccr-ny.org/v2/reports/report.as...vFj&Content=687

DEMOCRACY

Bush ignores Constitution in wiretapping






By Erwin Chemerinsky

December 23, 2005



Since 9-11, the Bush administration has engaged in unprecedented violations of liberties, including approving torture and suspending the Constitution through indefinite detentions without judicial review. Each time the violations of rights have come to light, the administration has defended its actions by saying they were essential for national security, they were technically legal, and those who revealed the misconduct and criticize it endanger the country.

Predictably, this is exactly what the president has said since The New York Times revealed that the president authorized the National Security Agency to monitor, without judicial warrants, some Americans' conversations with those in foreign countries. Not only do these arguments have no merit, they miss the crucial point: the Constitution is a reminder that the ends don't justify some means and warrantless spying on Americans' conversations just isn't acceptable.

The claim that the warrantless eavesdropping is necessary for national security ignores how easy it is for the administration to get warrants in such circumstances. In 1978, Congress enacted the Foreign Intelligence Surveillance Act and created a new court, the Foreign Intelligence Surveillance Court, to approve warrants when the federal government says they are needed to gather information related to foreign activities. FISA made it much easier for the government to get warrants, no longer requiring probable cause of criminal activity, but instead requiring only that the government show a reasonable likelihood that foreign intelligence information would be gathered.

A central aspect of the Patriot Act, adopted in 2001, was making it even easier for the government to obtain FISA warrants and allowing the sharing of information with law enforcement agencies. Statistics show that more than 99 percent of all government requests for FISA warrants have been granted. In light of this procedure, it is not credible for the president to claim that obtaining warrants was an obstacle or that warrantless eavesdropping was necessary for national security.

The president's defenders claim that technically his actions were legal in that the Fourth Amendment does not apply to government actions outside the United States. Assuming that the calls were physically intercepted in foreign countries, the claim is that the Fourth Amendment didn't apply at all. This argument, though, ignores that the Supreme Court has said that the Fourth Amendment protects a reasonable expectation of privacy. Every American surely has a reasonable expectation that calls or e-mails will not be monitored without prior judicial approval in the form of a warrant.

Attorney General Alberto Gonzales said the president had the power to do this pursuant to Congress' authorization for the use of military force following 9-11 and under inherent executive power. No court, however, ever has said that Congress or the president can suspend the Fourth Amendment, which requires a warrant for any search, including electronic eavesdropping by the government. Quite the contrary, in 1972, the Supreme Court expressly rejected President Nixon's claim of inherent presidential power to engage in warrantless wiretapping for security purposes.

Perhaps most distressing is the attempt to brand those who revealed the illegal surveillance as disloyal and a threat to national security. This is a familiar refrain from the Bush administration when its violations of fundamental liberties are exposed. In December 2001, then Attorney General John Ashcroft said that those "who raise phantoms of lost liberties" are giving aid and comfort to the enemy.

But the American Constitution did not create a benevolent ruler and insist that the people place blind trust in his choices. A democracy requires that the people know what their government is doing.

Early in the 20th century -- in a case, ironically, involving wiretapping -- Supreme Court Justice Louis Brandeis remarked that people born to liberty know to resist the tyranny of despots. The insidious threat to liberty, he said, would come from well-meaning people of zeal with little understanding of the Constitution. Louis Brandeis did not know George W. Bush or those in his administration, but he could not have selected better words if he had.

Erwin Chemerinsky is the Alston & Bird professor of law and political science at Duke University.

http://www.sun-sentinel.com/news/opinion/s...la-news-opinion

Surveillance without a warrant not legal, poll majority says

December 21, 2005

We asked: Accused of acting above the law, President Bush defended a domestic phone and e-mail spying program as an effective tool in disrupting terrorists and said it was not an abuse of Americans' civil liberties. Is surveillance without a warrant legal if the president authorizes it?

You said: Comments appear here as they were submitted to the Statesman Journal. They are listed in the order in which they came with the most recent at the top.

The Statesman Journal reserves the right to remove content that is offensive, illegal or irrelevant to the topic

The poll was online Dec. 20.


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The law says that to go into a house or check out a car or anything like that the cops need a warrent. Why should they be able to do any surveillance without a warrant? A lot of cases or things are thrown out of court due to not having a warrant so this should not be legal even is it is the President cuz next he will have them spying on us and all we do. We are losing all of our rights and about the only one we have now is freedom of speech and even that is an iffy situation cuz if they don't liek what we say they can not print it or something. Remember people that people put him into office and he is ruining our Country and now it is time to get rid of him.

Sick of liars, not old enough, unemployed but born here, great town

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In his four-year campaign, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s. The FBI has issued tens of thousands of national security letters, extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. Most of the U.S. residents and citizens whose records were screened, the FBI acknowledged, were not suspected of wrongdoing. The burgeoning use of national security letters coincided with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Bush's assertion that eavesdropping takes place only on U.S. calls to overseas phones, "is no different, as far as the law is concerned, from saying we only do it on Tuesdays."

Jonathan, 45, sales, independence

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I'm convinced that this country gets exactly the leaders it deserves, no more no less. Hypocrisy and deciet are not new to the political scene neither is the mudslinging that comes from calling a spade a spade, as this little forum proves time and time again. I believe in the precepts and tentets of the Contstitution and the Bill of Rights and I hold my freedom dear. Bush and his boys will go on with this "divine purpose" and the rest of us will just have to get used to it. I do believe the day will come though, when "The People" will awaken and decide that the most important qualities or virtues our leaders should have are, Honesty, Integrity, Fairmindedness and Humility. Just one look at Bush et al shows they are bereft all of these. As the evidence mounts, one can only daly in denial for so long before the truth jumps up to bite one in the butt. Then we'll see who's left smiling and who is left wailing and gnashing their teeth.

Mary, 50ish, Administrative Assistant, Salem

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Since when can criminals be trusted to spy on Americans ONLY to catch terrorists? It is my experience with republicans they chronically see green with dollar signs in front of their eyeballs at all times. They don't care who they hurt, who suffers, or how they hurt others as long as the profits continue to roll their way. I concider it very plausable for them to listen in on corporate dealings to help their friends succeed. I can see them stealing patents, copyrights and intellectual property for the same reason. We as Americans made a huge mistake letting the business sector take over government. Businessmen make poor politicians, and the lack of respect for our constitution and the laws of this land is is apparent to me every single day.

Janie, 29, Legislative aide, Salem

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NO!

Marilyn Jean, 60, data entry clerk, Salem

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Absolutely not. I am no legal scholar, just an average citizen who is horrified to think that this president could be so narrowly focused. I believe there is still a constitutional provision of innocence until proven guilty. He is frightening me, not reassuring me.

Jeena Huntzinger, 57, Retired teacher, Dallas

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To a degree, I never could understand how the masses of Russia allowed communism to florish and then to let it go on....the same with Nazi Germany (as well as other less popular historic examples). I've always felt that if enough people stood up they might have made a difference. I read the responses of those who support the President on the issue of spying. I now understand. A different world since 911? It is the exact same world and situation as it was before, only now the danger is being recognized and is being faced up to. (though because of this country's response, we are now hated even more) Out of fear and cowardice, most of the right wing people have caved in and surrendered to fear faster than the French!!! This is exactly what those who attacked us want, to disassemble our country. If you want to get rid of your own personal freedom, fine. Most of you have no conception of such left wing radical ideals such as liberty, freedom and privacy anyway. I am sure that they all have no problem with mandatory random drug testing without reasonable suspicion or probable cause. You also see nothing wrong with police roadblocks so law enforcement can go fishing. I'll bet you think prison is a luxury resort cause they have a color tv. (how about taking your next vacation there). If you want to live in a glass house and let all who want to, to totally invade your lives. I do not want to live this way so people like me will always fight you. I am sure that I will be called a liberal aclu left wing commie pinko etc... The Republican party for years has been trying to tear apart and restrict liberty, freedom and limit the protections from the Bill of Rights. In the 1980s conservatives around the nation convinced the people of the various states, whose own constitutions, offered them greater protections of liberty and protection from government intrusion, to change their constitutions to be "more aligned" with the U.S. Constitution. The reason being that "it was too conflicting and the people were confused and didn't understand" those people in those states just swallowed it right up. The political right complained that due to liberal judges, the guilty were walking the streets. So then they fill the courts with people (are called strict constitutionalists) who will interpret the Bill of Rights in a manner that will perpetuate a specific political goal of a specific political party. When they couldn't, they made sure that the seats remained vacant by blocking or protesting their nominations. Perfectly qualified, but not conservative. The people swallowed it up again. For years they complained that the Bill of Rights interfers with law enforcement. Then they realize to win their war on drugs and crime, several parts of the Bill of Rights must be ignored and only information that encourages this view will be supported all other views will be ignored. They got their judges and they got their court cases that have turned the most important piece of paper in the history of the world and have made it almost a joke! the people swallowed that too. Protest your government and you are corraled into free speech zones, be surveyed by the feds, investigated and be put on a government watch list, under the guise of protecting the President and fighting terrorism. Supporters of the President get to line the parade route. (What a great place to hide if you had bad intentions!) And the people just swallowed it all up. This is why, in almost every aspect of our lives, are invaded and regulated with support of the conservatives. In a 5-4 vote the government lost their case (supported by our current president) that would have allowed the police, without any reasonable suspicion or probable cause, (there's that pesky old phrase again)the police may not go up and down the street looking into peoples homes, through the walls with infrared technology!! and this was before 911 !!!!!!! The people have gotten used to it and now have a problem accepting the almost unheard of. As for the President, hand picked judges and his relations put him in office. He barely won the last election and thinks he has a mandate. This is why he did what he has done. The only reason why he will get away with breaking the law is that the legislative and the judicial are loaded with right wing conservatives. (think wolves guarding the hen house) They have sworn to uphold the law and constitution and are now ignoring their oath by not at least demanding and investigation let alone impeaching that piece of a..... excuse me, the President. the conservative Republicans and the religious right had a problem over what Clinton did but have no problem with what George W Bush has done......And the people will swallow it up too.

David, 44, unemployed, Salem

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President Bush's actions are very necessary. The internet the last few days gave instances of President Clinton doing exactly the same thing.

Charles , 87, Retired, Salem

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Many of today's bloggers seem to have a lot to hide and live their lives based on fear. Maybe they should clean up their act. Are they child molesters, subversives or editorial writers? Who knows?

Hyman Roth, 56, Gambling Expert, Salem

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Also Rob, you said "My employment conducts regular surveillance in my line of work, often without court orders." Just wondering, when you say this, do you mean watching people, or do you tap phones using this same "blanket order"? Also, does this mean you may enter a persons personal property without a warrant? I believe probable cause covers some situations, but I didn't think it justified phone taps. I guess I know less than I thought I did....its happened before.

Bob T., 29, American, Salem

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Rob, you said " While agreed the "law of the land" must be followed, surveillance in and of itself must be conducted covertly in order to attain significant results." I'm curious, in the situation we are speaking of now, how would following the laws in place, along with the provisions put in place allowing for as I understand it 72 hours of surveillence before even requesting a warrant, hurt your ability to conduct surveillance covertly? Asking for a warrant should not compramise your position as far as I can tell. I have no doubt (no offfense to you) that many agencies in our government work very hard to find ways to skirt the laws. Still comes down to one thing, we have laws in place. If they need to be changed, so be it, until then I personally expect EVERYONE to be held to the same laws.

Bob T., 29, American, Salem

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The president said it was necessary the few times it was done. He doesn't do things without counsiltation. I believe in our president

J G Shadoan, 65 years old, Retired Teacher, Salem

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My employment conducts regular surveillance in my line of work, often without court orders. It's in our agency directives, a "blanket order" of sorts. I don't abuse the system as the general public and pollster's often purport. Only the results of my surveillance must be verified by my supervisor if we get a "hit" on something, and if it goes to court, we'll need the proper documentation. While agreed the "law of the land" must be followed, surveillance in and of itself must be conducted covertly in order to attain significant results. Those that have nothing to hide should not worry. I know I'm gonna get "hate posts" in response to my post here. Oh well, such is life. If you hate me cuz I'm a fed, take a number...

Rob, 42, Fed, suburbs

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We call ourselves a free nation, but no one is free who fears governmental surveillance. Our founders instituted three branches of government and checks and balances between these branches for good reasons. Their reading of history and their recent experience of abuses of power by Great Britain were the necessities that required the invention of our three-branch governmental system. In that system no one is above the law, not even the President of the United States. Under our Constitution, every action of governance and authority is subject to review and approval. We must not let fear rob us of our heritage of freedom. Only authoritarian rulers need to subject their people to surveillance. What does it say about our current administration that they are secretly spying on their own citizens through the NSA, the FBI and the Pentagon simultaneously? Could it be their admission of their own weakness and their fear of their fellow Americans? I think so. Such fear in high places can only lead to bullying, coercion, force, imprisonment and ultimately oppression. And that is exactly what we are seeing. Why else are American citizens being detained without charges or due process of law? Why else are U.S. prisoners being sent to secret C.I.A. prisons abroad where they are subject to torture? We must stop this before the knock comes to our door. It is time to impeach President Bush and Vice President Cheney. It is time to take our country back from fearmongers. They are far too dangerous to allow the democratic process to remove them in another three years. It is time to act now.

Barbara F. Ray, 59, homemaker, Salem

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"Outcome-based democracy" is not in the Constitution. Under a rule of law, the laws aren't cast aside if they happen to feel inconvenient. The "President" broke the law, over and over again. Time for him to be held accountable to the established law of this land. Can anyone say J. Edgar Hoover? Joseph McCarthy?

Liz, post-grad, unemployed, Salem

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What Bush is doing is against constitutional law. The rights of US citizens are eroding under Bush and his party.

Joan Smith, 57, Teacher, Corvallis

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Kathy, I hate to take away from your nice analogy, but as a clarification, it took five years to catch Eric Rudolph dumpster diving in our own backyard.

Jeff D., 33, Office worker, Salem

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We have one of the greatest Presidents and he has every right & in fact the duty to eavestrop on terrorist calls even if they happen to hear a conversation with some american!!!! when will the dumb, left leaning press get with the program of h e l p i n g the country rather than tearing it down ---just for political reasons?????

Ray Fisher, -, -, SALEM

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I agree with the folks in this forum who say Osama is dead. After 4 years of illegal wiretapping all over the world to spy on thousands of suspected terrorists, Osama would have been found-- if alive. What has happened with this war in Iraq reminds me of the Fantasia story, The Sorcerer's Apprentice. President Bush, I mean Mickey Mouse, takes an ax, and with fiendish anger, chops a pesky broom into a thousand splinters. Those splinters rise up and become thousands more pesky brooms, wreaking havoc on poor Mickey. So, here we are-- Osama is dead, we have thousands of Al Qaeda terrorists running around, a never ending war, and a Mickey Mouse president.

Kathy, 35, Business owner, Amity

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Ssurveillance without a warrant if the president authorizes it is freelancing the law. Without oversight and due process of law there is no law.

Steve Vance, 44, Accountant, Salem

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Dear Central Willamette: The President would probably have been impeached awhile ago had it not been for a republican congress. What kept Clinton from being impeached was a democratic senate. It hardly seems fair that Clinton was impeached by the republican congress for lying about a white stain on a blue dress, but this president has lied and participated in criminal behavior and most likely will not be impeached. Sadly, that's politics.

Julia, 28, State worker, Salem

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The USA isn't just a bunch of people living in one place on the map. It's also a set of ideals and a system of government based on a constitution and a body of laws. If Bush ignores those ideals and circumvents those laws, he's damaging the USA. It may not be the same kind of damage that terrorists can do, but it is damage all the same. Our government can and should fight terrorism WITHIN the law. If you slept through junior high, read this page for a refresher course: http://bensguide.gpo.gov/3-5/government/branches.html

Jarvis, 72, Retired, Keizer

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George's effectiveness in stopping terrorism is about as supported as "intelligent design" theory. Just because the RNC 2004 Campaign materials say so does not make it so. The protection that the average American gets from George's terrorism and war strategy (excluding the ~10,000 soldiers who have been wounded or killed) is almost identical to the protection provided by a tinfoil helmet. If you do count soldiers, the outlook is not pretty. That said, I wouldn't mind the feds tapping into my phone calls--my tinfoil helmet produces sufficient interference.

George, 59, Silt Processor, Scio

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I have just one question for everyone accusing President Bush. Where were all of you when Bill Clinton was spying on everybody in the 1990s! Don't forget about project Echelon eveyone.

Brent H., 36, Sales, Keizer

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he has broken the law and should be impeached immediately!

ae ponce, 58, retired, woodburn

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If the President can lie about the war, steal money from the tax payers back in the 1980's, and approve illegal wire tapping, what else has he done? What else can he do? It seems to me the conservative agenda is all about power and abuse of power. There's nothing christian about what the republican party is doing. The republican party just uses the faithful because they are gullible, easy to manipulate, and constitute a huge voting block. Sad, very very sad.

Elaine, 34, Insurance, Salem

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So, what a lot of you folks are saying is, if; Zacarias Moussaoui is calling a would-be terrorist camp in Bly, Oregon, the government shouldn't have the authority to listen in on their conversation? Well then, why don't we just hand over Oregon right now? Or, do you find that incident to have "special circumstances?" Well, I guarantee you, the circumstances aren't special, and it's happening all over the U.S. And, guess what, a lot of these people are, so-called, U.S. citizens.

R. Smith, 50+, Self-Employed, Salem

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Christina, you wrote "If my government feels the need to enact a 'domestic spying program' in order for our ultimate safety and security, then so be it. I say go." I think the difference between what you have said here and what people have a problem with is you said "I f my government...." To me that would indicate the government as a whole, deciding through the processes in place that monitoring us was needed to keep us safe. For the executive branch to make this call alone and to then proclaim to the public that it is with in their/his authority, is what seems so wrong about this. Its not always whats happening right now that matters, it is the doors this could leave open for abuse of our rights in the future. No one can be above our laws that is the absolute here.

Bob T., 29, American, Salem

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I think this kind of espionage is necessary, but only with court oversight. There was already a secret court in place to authorize this type of wiretapping, but Bush bypassed it with no good explanation. Bush just "doesn't seem to get it" when it comes to exporting democracy -- you can't just do it with force, you also have to win hearts and minds -- and if you trample on democracy in your own country, you won't win any hearts and minds elsewhere!

Alex B, 43, Engineer, Salem

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I love myself, my family, and my country (in that order). I feel that surveillance is a good idea. I truly believe that there is already a certain amount going on anyway. With all of the technology available to our government, one would be a fool to not think they're being watched in some capacity. Every purchase I make with my plastic money is monitored by someone, somewhere, and I don't think it's just the bank. Maybe this sounds paranoid to some, but it's not really that far fetched if you think about it. I certainly don't want to end up living under some sort of Martial law, or be ruled under a dictatorship, but I want protection. I pay my taxes and I live an honest law abiding life. I too have nothing to hide. If my government feels the need to enact a 'domestic spying program' in order for our ultimate safety and security, then so be it. I say go.

Christina Maples, 38, Accountant, Salem

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There are so many ignoramuses in this country, that it is no longer America. Why would you sacrifice your freedom to a terrorist like George. He's much worse than Osama. He's killed more people, and he's trampled more rights. The Constitution of the United States creates and empowers the president and limits his authority. If he violates the constitution, there is no law. Why has Bush not been impeached? Why not impeach him for failing in his constitutionally mandated of accurately reporting the state of the union to the congress? Why not impeach him for warring on a foreign state without cause or authorization? Why not impeach him for holding thousands of people without a warrant? why not impeach him for creating illegal prisons full of uncharged innocents? Why not impeach him for illegally spying on Americans? Why Not -- because ignorant Americans would rather feel safe for one more day than take an honest look at the government they've inflicted upon themselves. I sincerely hope that the president and his cabal and all the bipartisans in Washington.... well, if I complete that sentence, they'll be illegally spying on me too.

They'll probably find out anyway, 40+, yes, Central Willamette

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Sure, especially if he's spying on those turncoat Democrats. If he needs a little "help" to keep Republicans in the majority, who's going to mind if George W. Nixon "stretches" the law a little?

Paul Gornick, 52, Engineering, Portland

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Daveagain, Thankyou for the wonderful Ben Franklin quote, no more needs to be said. Also I think that it is great that we can have this kind of disscusion, openly, honestly and without worry. All of our opinions do mattter( or at least can be voiced) and that I think is the best part of our great country. I think everyone left or right that feel strongly enough about this to speak on the subject are trully patriots.

Bob T., 29, American, Salem

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Of course it is not legal. In a democracy the president is not above the law. If surveillance is necessary, there are legal channels for obtaining a warrant. Respect for rule of law and oversight of those in power distinguish our democracy from a dictatorship. By the way, this administration's record of protection of Americans from terrorist attack is not good. It was on this president's watch, and after explicit warnings about the use of passenger jets as weapons, that 9/11 occurred.

Kathy, 59, teacher, Salem

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Since when is the president above the constitution? Oh yeah! Since 1860 when Lincoln overturned it! Those who think they are in a constitutional government system are sadly mistaken. Our constitution is now just a relic on display without any real meaning. Think differently? Then who's reading your email and listening to your phone calls? And before any brainless wonders tell me to leave if I don't like it,; I live here through choice. While seriously flawed, it is the best system out there. I know because I've lived in many of them.

Joe W, 45, web designer, Salem

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Those who say "no", including second-guessing politicians and Monday morning quaterback editorial writers, should gather with their families on the top floor of a 90-story building targeted by terrorists and wait to see if the lack of intelligence protects them. Please include terrorism experts in the above such as Hollywood stars and producers and those billionaire Democratic Senators who try to look like they are just like us poor working folk. The proof that President Bush is correct in his actions is the very visible lack of harm to our freedoms and the very real lack of physical harm to our collective arses.

Tom Swift, 56, Optomist, Salem

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Whodathunkit - If you can read this much at once: (US courts often quote England's Justice William Blackstone's Commentaries on the Laws of England as the definitive pre-Revolutionary War source of common law; the U.S. Supreme Court quotes from Blackstone's work when they wish to go back that far, as when discussing the intent of the Framers of the Constitution. U.S. and other common law courts mention with strong approval Blackstone's conclusion: "Better that ten guilty persons escape than that one innocent suffer." Contrast that with the Communistic doctrine: Jail 9 innocent men on the chance the 10th is the 1 guilty party. Sad to know the society you'd want more closely models the second case. ...If your thinking is typical of so-called 'conservatives', remember this: "When they came for the communists, I remained silent; I was not a communist. When they locked up the social democrats, I remained silent; I was not a social democrat. When they came for the trade unionists, I did not speak out; I was not a trade unionist. When they came for the Jews, I did not speak out; I was not a Jew. When they came for me, there was no one left to speak out. " ...And Finally: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." (Inscribed in a stairwell at the Statue of Liberty) Benj. Franklin, Printer & Noted 'Liberal'? ...A Portland lawyer has already spent time in one of those secret US prisons and quietly released when it was found a foreign government made an error in fingerprint analysis. This was based on King George's simpleton model of "justice". Even then you're still willing to risk your freedom on the say so of some inept foreign government, or even an unchecked domestic government??? ...See? Now THAT is true "Terrorism". ...Fact is, all signers of the Declaration and Constitution were flaming liberals. In the eyes of England. I'm a moderate populist myself. I don't align with any party simply for moral support.

Dave Again, 64, History's repeating, Salem

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No.

Linda Cochrane, 55, Retired, Salem

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Never. We are a nation of laws. These laws are to protect the American people. The President is not above the law. As Senator Russell Feingold said, the President is not King. He must be accountable, as we all are to the law and the Constitution of the United States. If Bush is allowed to violate the law, our nation is doomed.

Dana Barricklow, 68, retired, Salem

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No! Conducting secret surveillance of American citizens without proper legal authority (a warrant) is against the law and, by authorizing it, the president has committed a crime. It is just one more thoughtless act by a president who has little respect for the Constitution or the American people. Americans should realize that our rights and freedoms are threatened by such practices and the Constitution stricktly forbids it. This illegal action should trigger a full investigation. Congress should censure President Bush and press for more effective oversight of this wreckless administration. I believe that this will be shown to be an impeachable offence.

Bill Girsch, 61, dentist, Salem

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I think that President Bush has crossed the line. History is repeating itself. If I remember my world history correctly, that is just what Hitler and many other dictators have done to their citizens, and look where that got us. If Mr. President is so worried about terrorism, start at the borders, check the validity of EVERY foreign dignitary as they come in, I mean they all but strip search us as we enter their countries, so I think it only fair to return the favor. Mr. President, if you want to survail your citizens, get a warrant just like the police have to do.

Stephanie Barker, 25, Homemaker, Stayton

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Earlier.

George Slawson, 74, Retired, Salem

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Yes. He must do something besides whine (like most of the responders to this question) and throw kisses. Of course you liberals have all the answers but no one ever hears em. Cuz? I could care less if the Pres or his designee listens to my conversations on the phone...I have nothing to hide. If you have nothing to hide why do you care....I know, cuz you want privacy, gimme a break...you just want whine and show everyone how liberal you are.

whodathunkit, 82, sage philospher, Stansfield

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NO.Mr. Bush asked us "not to despair." But we already have--not because we're losing his war, but because of the direction the United States is being forced to take. The Bush Administration is not running this country, they are using it for their own purposes and bending the Constitution to suit themselves.

Barb R., 68, Housewife, Salem

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Absolutely NOT!! This Pres.select shows his disdain for the Constitution and the standing laws & liberties he so routinely endangers. This is an impeachable offenses (one of a series). The pampered play-boy made president by his rich family & friends is not running but ruining this country.

Josh Reese, 69, Retired Marine Officer, Salem

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Ok, just once more, to all who point to this policey for keeping us safe, because there have been no more attacks, there was no 9/11 before 9/11 either. I think we'd be mistaken to believe that even if we kept our unchecked surveillance as is, that we are safe.

Bob T., 29, Nonsense in written form, Salem

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The president needs to "understand" the will of the people and their representatives. This is not supposed to be an administration of the president, by the president and for the president.

Robert A. Lieder , 74, Retired , Dallas, OR

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Yes. In view of the results he has gotten in the past years I think he is doing a great job.

John Schneider, 79, ret. mech. eng., salem

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Since the founding of our nation, the Fourth Amendment has protected the citizens of this county from unwarranted searches and seizures by the government. Now, President Bush has determined that he is greater than the Constitution and that he can bypass the Courts and spy on Americans without a warrant. Although we have all suffered the tragedy of 9-11, this is not a justification for us to lose the civil liberties which have made this country the symbol of freedom for the world.

Michael T. Muniz, 53, Attorney, Keizer

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WOW!!!! Where to start, so much propaganda from both sides here.First of all, we have laws and provisions in place for this surveillance issue, including emergency provisions which can be used in place of the warrant, until a warrant is requested. To our forefathers,(who I don't hold in high very high regard) would have never stood for this kind of action from the executive government (which was MUCH weaker at the time). If the president thinks he needs laws to be changed, it is his responsibilty to work with congress to change exsisting laws, thats how our system works, checks and balances. Secretly briefing a small group of senators, is not a check. As for the people who say if your doing nothing wrong why would you care? I don't think thats really the point, this is our Constitution, growing up, I was taught that our Constitution was the backbone of our country. It is not in written in stone, and if it needs change or revision, that is an option. Ignoring the checks and balances is not an option. Further, ponder this possible situation. What if my neighbor has a cousin in another country that may know people who might be terrorists, he may email his cousin regularly (nothing envolving terror plots), is he suspected of being connected to terrorists? And what if my neighbor asked me to help him , say, install a hot tub at his home, now am I connected to a terror network? Is their a chance I could be held indefinately as a "enemy combatant"? I admit this is very far fetched, but withouot the proper oversight whos to say what could happen, which is why we have built in laws that protect all of our rights, thats why warrents are issued by the judicial system and not the inforcement agencies themselves. As horrible as the attacks against us on 9/11 were, what makes our country different than many is the fact that we will not abandon our beleifs and rights because of cowards who attack us. I beleive our elected officals must work with the President to develope laws and procdures to give our law inforcement the tools they need, but never should the executive branch forget they are NOT legally able to side step the LAW! As for the woman who compared our media to the Soviets, come on this wire tap deal sounds much more like the good old USSR. If you don't like the "liberal media", there are plenty of overly conservative media sources (Fox, and almost every talk radio show on the air). Most of you sound so biased to your political party that you couldn't see the truth even if it was avalible....lol. The reason our country is great is not our past, it is us, you , me and all our neighbors.......if the laws need changin, lets do it, but above all follow the laws of OUR land! Also I'd like to express my support of the people who really are heros, our men and women in the military, they soud never be judged on where or why they are at war, only praised for following oders handed down. If these brave people were ordered the invade Canada tomarrow, for no reason, they would still be heros for following their orders. Our military people are the best! Nobody on either side of these rambling , misinformed,debates on this war and terror should ever forget that or use them to make political points. We as Americans must come together, don't let yourself be blinded by your party, your not a democrat or a republican, but an American. I say abandon your party, stand on your own, don't be an extrimist, see all sides our country has to many other issues to deal with to be so deeply devided. Happy holidays to everyone.(Sorry for ramblin)

Bob T., 29, Rambling, Salem

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It's not enough to be an American tax payer anymore, you've got to be an educated thinker living in America otherwise all of us could lose everything. There needs to be a balance between blind belief and questioning authority, patriotism and a skeptical eye on Washington. I have no respect for those who hide behind the flag and the cross while trampling the constitution. All three need to be respected and protected if we want to remain free.

Pearl Humphry, 83, Widow, Salem

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Considering many Congresspersons were involved as well as a Judge and considering the current terrorist push throughout the world; I approve. I doubt highly they would listen to Sally gossip about Susie or which new boyfriend/girlfriend is hottist. The government's job is to keep me safe. If they need to listen in on possible terrorists, then more power to our government. I'd rather a gossip be listened in on rather than have a neuclear bomb explode in Salem. Yes, Salem would be a target as we are the State Capitol. I approve of whatever it takes to keep me and my family safe.

Debbie, 50+, Self, Salem

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Those who object to our President doing his job, protecting America, are naïve or cannot see beyond their own left wing web site. Having lived through World War II and seeing what it is like when most of our nation joins to fight an enemy that would kill us all, I can only pity citizens among us that would rather see the terrorists win. Chief among this group seems to be left wind idealists but they help the enemy. Shame on any that do that and especially the newspapers that have given up their role as watchdogs of government and have become part of the radical left. War is not a nice and neat activity with scheduled events on certain dates and to further hamper our country’s efforts gives aid to our enemies.

Grayfox, 75, RETIRED, Keizer

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It is not legal and very definitely a total abuse of presidential power. The current administration under Bush/Chaney and their cohorts has made a mess for this country. Our civil liberties are at stake with wiretapping and the so called Patriot Act. Bush comes acrossed as a Dictator rather than a President!

Barbara J. Lahrson, high school, Homemaker, Albany

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NO! It is patently illegal and in itself a glaring violation of the MY copy of the Constitution. His Majesty, "King Bush", and his cronies have unilaterally done away with the Constitution and violated his Presidential Oath. So far, they've violated or suspended at least 4 provisions of the U.S. Constitution, to wit: The 4th, 5th and 6th Amendments, as well as Article 2, Section 1. Therefore, Article 2, Setion 4 should be exercised by "the People", as I believe his intentional and knowing violation of the Bill of Rights is a "high Crime and Misdemeanor". Those who support his dismissal of the Constitution should maybe go take another read of it. His claim that his power to do what he has comes from the Constitution and from powers given to him by Congress are laughable and NON-existent. Those in Congress whom he claims empowered him now say they never envisioned nor intended this abuse and overly-wide interpretation by "the King" (and "our" new Attorney General who advised the "king" to do this, and should never have been confirmed to office). FISA gives intelligence agencies 72 hours to RETROACTIVELY seek warrants for wiretaps, yet he didn't go that route. Only reason is to hide what's actually being done, which is likely FAR more than they are admitting to. Given the past lies and "mistakes", as he terms them, his credibility is shot. He wouldn't pass a voice stress analyzer/lie detector. Those who reference WWII and FDR need to re-read their history books to find that FDR knew full well what Japan was up to, but delayed acting on intelligence, allowing them to attack so the US public would more fully support entering that war. King Bush, you will recall, sat reading children's stories after being told the WTC was under attack. "King Bush"'s support seems to come largely from the ignorant, since it's so easy to prove him wrong. Very sad that this country has come to this. If this were an Errors and Omissions case, this man would have been bankrupt long, long ago. I can't believe this is even under discussion. An insult to all who have served and swore to uphold our most precious documents. "Terrorism" is this generation's "Communism". Bush is this generation's Joe McCarthy.

Dave Again, 64, I swore to uphold it., Salem

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Our country was founded on due process under all conditions, this protects us from abuse by a rouge administration, as we are seeing in our country today. We must elect people who will follow the law and adminstrate the country in a lawful manner. NO ONE is above the law

Mary Lou Shepherd, 61, Public Service Rep, Salem

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Joel Walker's first post bring up some interesting points. I've always wondered how the religious right (wrong, really) thought one political party represented them more than the other. Now I realize, the simple-minded bible belt clan were used and manipulated. Big corrupt business along with big corrupt politics made a union with big gullible religion. What is tragic for all Americans right now is that our way of life, our constitution, our democracy can be dissolved by a huge voting block. I'm a very spiritual person and I believe in one God, but I would never vote for a president who would weaken our constitution.

Helen, 60's, World traveler, Salem

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These responses are an education in itself. Are we all seeing and reading the same news? About President Bush's latest outrage. It may not be an abuse of HIS civil liberties but it could well be of anyones who disagrees with him.

Nancy, na, Retired, Independence, OR

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I agree with his tactics, he's not invading anyones privacy who doesnt deserve it, the terrorists and conspirators. The government is not going to watch the average joe schmoe in his daily routine, so stop worrying. This tactic is for the bad guys.

Micki, n/a, n/a, salem

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I do believe Bush has acted above the law, but this phone system was in place well before he ever took office (and his papa too) The email spying tool is new, but comes with the changing technology. They are only listening to key words of people they are suspecting of terrorism acts, why on earth would anyone balk to this? Any of us can argue the surveillance is illegal, but it won't stand up in court if you're accused of something more serious than talking smack on the phone or writing a nasty email. Seriously people, there is so much more than this little tool that is tracking our every move. Get over it and pose for the cameras, answer the phone with a smile, and for God's sake, iron your shirt!

Deanna, 28, I always feel like..., somebody's watching me...

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I see there are 2 Tammy teachers now. Did you just borrow my name or are you really a teacher? The least you could do is differentiate yourself from another Tammy on this forum.

Tammy H., NOYB, The liberal teacher, Salem

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Without court pemission, domestic spying can not be monitored and could be abused to compile an "enemies list" as was done by Nixon. It is in my opinion a violation of civil rights.

Dan, 73, reired college professor, salem

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I think that he (bush) must think that he is the KING instead of the President. He was very wrong to use this kind of unchecked power. I think it was an abuse of the law. Thanks

Gordon Lahrson, College, Retired, Albany

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I think the problem here is oversight and unfettered discretion. Know this, whoever told the press about this story will surely get canned. As for the Plame leak, well, let bygones be bygones when it comes to political enemies.

Nimitz, 88, Admiral, Atlantis

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Without the kind of response the President has ordered, in my opinion, the enemy would soon see to it we had no bill of rights to defend! Go, Mr. President!!!

Donald Farrand, 81, Retired (Vet WW II), Salem

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No it isn't. There are laws and rights preventing that sort of abuse. Bush seems to think he is above the law and can do what he wants by saying it's executive privilage.

Glenn Garske, 51, warehouseman, keizer

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It is not legal for the president. It is fine for a dictator. Question is: which is he?

Steve Paulsen, 58, retired, Monmouth

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To all the Charles Elliots ,if you don't plan on breaking the law and trying to kill millions of Americans , you don't need to worry.If Bill Clinton, I mean Hillary Clinton ,would have dealt with those idiots when they attacked our ship,barricks,trade center before 9-11, and other areas, 911-- would not have happen.If Kerry, Kennedy's cloney would have won the election, our troops would be home and we would be cleaning up after several HOME COUNTRY attacks. These people are controled by the evil one and they thrive on weakness. So to all the Charles Elliots out their,thank God we have powerful conservative block out their that carried the election.Playing politics for national secuity because you hate President Bush is what the liberial press continues to push down naive watchers.Our press is no differant than state run tv in Russia during the communists controls.NO BALANCE REPORTING-Wake up America before the liberial agenda gets Hillary elected and we lose our Country.Has anyone read or seen any press reports from Irac region regarding schools, churches,water supplys and wells,people going to work, recreation areas,etc. No, because the liberial press want you to believe we are losing the war and bashing President Bush. Thank God we have a leader for a President , who doesn't change his mind every other day because of poorly worded polls. He leads and is protecting our constitution.He is lead by his faith and he does not give a crap about popularity or polls. Thank God. God Bless America and Merry Christmas to you all.If the liberials would of had their way during WW2 we would have investigated the Pearl Harber attack instead of going to war and protecting our home land.If you tell a lie long enough about the war, people will belive it!

Tammy, n/a, teacher, Salem

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Newsflash: Al Quida members do NOT enjoy constitutional rights! Those who actively conspire against our country in a time of war lose those rights as well. I really don't think most of you people really think we are in a serious war on terror. Can you imagine people playing politics with FDR when Americans took wartime action to spy on the Germans and Japanese? I just hope you people have the courage to stand up and take credit for your current opinions if we lose another 3,000 citizens in another terrorist attack on our soil.

Scott, 31, manager, Salem

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You see everyone, I have been trying to warn you of our corrupt government. Sen. Harry Reid said this is the most corrupt congress in history. Every govt. official is above the law, even though the constitution clearly states EVERYONE is equal under the laws. The constitution also gives us the right to OVERTHROW the people who have destroyed the supreme law of the land. This has been going on long before Lord Bush. There are people in govt. right now who are doing their best to destroy America and our founding freedoms. The government considers us the enemy. Once again is will state the truth, global elites carried out 9/11 to take away our rights. Bush says the terrorists hate our freedom, but you must look beyond words to the actions. Bush and the govt. are taking rights like they are going out of style. When I say we need a revolution, I don't mean to overthrow America, but instead the people who have destroyed America

Justin, 28, Revolutionary, Salem

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NO!! President Bush shows us once again that he believes the laws of our nation are merely suggestions if they get in the way of his agenda.

Marie , graduate school, health care, Salem

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Phooey! Listen in to my phone calls any time you wish. Only those who have something to hide are complaining.

Grandma Mary, 65, retired, Salem

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We might as well be in Nazi Germany with Adolph Bush. There are reasons why we have laws. No one should be above them.

Bill Mulholland, 54, Lumber Broker, Crescent Lake

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We have constitutional protections against illegal search and seizure. We have the FISA laws which specify and provide adequate measures under which surveillance of citizens may take place. This president believes he has the powers of a dictator because of 9/11 and can act with impunity to maintain his hold on power. His acts are contrary to the law and the Congress, the courts, and the American people must hold him accountable or we face the onset of a totalitarian police state.

Bill Ryan, 57, retired , Salem

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Based on the amount of review that this program would have had to go through in order to operate (Congress wants an investigation? Why not just ask their collegues who were briefed?) I believe that it can be argued that it was at least believed to be legal by all involved. The NSA General Counsel would have been involved, and this program was reviewed _every_ 45 days. Oh, and the NSA'ers who violated their security agreements should be hung by the neck until dead after conviction. I believe that is the normal punishment for treason during a time of war. Additionally, in what may be the most telling point about it all: It was apparently successful in it's goals.

Jeff, 38, Network tech, Stayton

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Because of the experience of the American colonies with King George III, the framers of our Constitution, in apportioning the powers of government between the three branches (executive, legislative and judicial) deliberately made the presidency the weakest branch of government. Consequently, under our scheme of government, the President has only those powers conferred upon the presidency by the Constitution or by the Congress. Those powers, incidentally, must be conferred on the President by duly enacted laws, not by “briefings” or by private telephone calls with individual legislators. I believe that the President has no power to unilaterally order domestic spying unrestrained by the 4th Amendment to the United States Constitution, and the unchallenged assertion by the President that he has unlimited powers violates our very scheme of government and is a slippery step toward dictatorship.

Frances, 63, retired, Keizer

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The liberals are such hypocrites. Clinton instituted the National Directory of New Hires, which tracks the employment of every American, without a warrant. Clinton pushed through a program called Carnivore, which would have allowed monitoring lf all emails without a warrant. Most Democrat congressmen supported that plan.

Mark, 55, technician, salem

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No it is not legal...if surveillance is needed, one must go to the judicial branch of government and show just cause! That is the LAW of the land, which Bush and so many Americans now feel that they are above!

Gavin Blair, 50, Goverment Worker, Salem

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I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it. -- Thomas Jefferson [-4.25, -5.33]

Jonathan, 45, sales, independence

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I am angry and embarassed at the behavior of our president and Commander in Chief. He has placed himself above the law and the Constitution of the United States, making him no better than the leaders in the Middle East, against whom he is supposedly fgighting a war for freedom. Has he forgotten his American History? I would remind him of the McCarthy era of the late '30's through the '50's. If President Bush has forgotten, he can log on to www.spartacus.schoolnet.co.uk to find out more. I would also remind him of the illegal internment of Japanese Americans during WWII, many of whom lost homes and businesses simply by virtue of being a certain ethnicity. I would remind our president of Hitler, who rounded up everyone-Jews, blacks, Catholics-who did not agree with his supremist ideology-and killed them. Finally, I would remind President Bush of our own constitutional right against unlawful search and seizure. One last note-I have been a member of the military for twenty years, proudly serving, but am increasingly ashamed to say that I represent the interest of this president and commander. I am sorry to see the sttate of our once proud nation's leadership.

Laura Wagman, 44, educator, Monmouth

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terroest are using our phones planes attack us the aclu using perverted law attack us too.cut the crap and wack im.

les harpole, 64, retired, silverton

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You're all a bunch of cry-baby's. Learn to live with it. And if you're not doing anything wrong, you don't have anything to hide, therefore you should check out ok under surveillance, right? But no, the pedophiles, drug dealers, and tax-evaders are SOO SOO scared they're gonna get caught under routine surveillance for terrorism.. wa wa wa, get a life.

Jeff Lekk, 33, welder, Monmouth

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Yes. If your collaborating with a terrorist who intends to do harm to the United States like Sheehan, then your aiding and abetting the enemy of our Nation. That act during a time of war is a crime pushishable by death. So hang up and do something else with your time.

Rodney R Stubbs, 64, Land Use Planner; Realtor, Salem

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Oh! My! Gawd! “Everything changed after 9/11!” Somebody get me a hankie. What happened was – we collectively gave “our leaders” (they're NOT our leaders – they're our employees) the power to “do what it takes” to protect us. And maybe they have – but I don't care to take their word for it and I don't care to take Bush's word for it. Bush should be held to account, and his boy Gonzales should be on a leash. What are we being protected from when license numbers are taken down by the FBI at a nonviolent protest against timber sale procedures in Colorado, or when the Portland Police Bureau participants in the Joint Terrorism Task Force are denied security clearances sufficient to review their own documents? Every time somebody proposes some new regulation or restriction and follows up with “an honest man has nothing to hide,” it's always a clear signal that honest men should have already been looking for a good hiding place.

Joel Walker, 55, Resource Analyst, Salem

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Wake up ! Everything changed after 9-11. The leader of our country ( whom was elected by this country -and the future Presidents to follow) was ( and will be ) faced with tough life and death decisions for millions of Americans. As he still is EVERY single day. I believe his concern ( and his advisors) was how to keep more of us from being killed or losing the ones we love so much. Preventing another devestating blow to this country. You know what ? ITS WORKING ! There has not been another 9-11, and many , many attempts at terrorism have been thwarted. Do you watch the news. I am sure less then 10% of these close calls are even reported to the media. What if that information they got from these montitorings, to warn law enforcement or airlines to be more watchful saved your spouse ? Child ? Would you be so worried about your right to privacy ? To watch my children grow up safe and healthy ? Privacy from goverment officials whose job it is to make that possible ? Small price to pay. We do not know every single tool the ones that protect us use. Even the Salem PD probably has a few. I am surprised that more people were not aware that this could be happening. Our police, armed services etc are most assuredly using tools that some of us are not comfortable with to PROTECT us. I don't see GW or any Republicans out there using that info to steal from us, or give information to spammers, or mass mailings to sell us crap or steal our identity etc. This is a tool the country is using and has given to the people we have chosen to protect our country. To protect you, your family. Me and my family. You are living in a bygone era if you think that this is the same world it was , even 10 years ago. Does the President have the right to make such decisions ? I don't know, but I hope he does. Democrat, Republican or Independent I wan

Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts
By EDWARD LAZARUS
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Thursday, Dec. 22, 2005

Not so long ago, the debate over the constitutional doctrine of separation of powers in this country was a matter of fine distinctions.

In 1989, for instance, some worried that Congress' decision to have the executive put a few members of the judicial branch on the U.S. Sentencing Commission raised a separation of powers issue. These executive-appointed judges, after all, would arguably act as legislators - in that the Commission drafts the U.S. Sentencing Guidelines, for Congress' approval.



The Supreme Court, in Mistretta v. United States, approved the arrangement despite the separation-of-powers objection. But critics still worried. Yale Law Professor Stephen Carter eloquently explained why: Although permitting a few judicial officers to accept executive appointment to a non-judicial commission might not look too ominous, the Constitution's separation of powers was the nation's primary defense against tyranny. And tyranny, Carter concluded in an oft-quoted line, does not overwhelm a nation in an instant. No, he wrote, "tyranny creeps."

Lately, though, tyranny runs like a cheetah. How quaint concerns such as those of Mistretta's critics seem after the events of the last few years.

How quaint they seem, especially, after last's week revelation that President Bush has spent the last four years authorizing and re-authorizing the warrantless wiretapping of domestically originating phone calls made by American citizens, even though Congress appears to have made such wiretapping a criminal offense when it passed the Foreign Intelligence Surveillance Act (FISA) in the 1970s.

How a Bloated Executive Has Sapped Power From Congress and The Federal Courts

Over the past four years, the executive has repeatedly tried to make sure the federal courts and the legislative branch have no oversight at all as to whom it detains, on what ground, for how long, and under what conditions -- including conditions of extreme torture such as waterboarding.

The Bush Administration took power from the courts by spuriously arguing that Guantanamo detainees had no access to the Great Writ of habeas corpus - a contention that the Supreme Court handily rejected, but that kept the issue tied up in litigation for years. It would have been more honest for the Administration to suspend habeas corpus for these prisoners, and accept the brunt of public criticism for doing so.

The Bush Administration has also tried to moot cases before courts can rule on crucial issues of detention -- allowing the supposedly dangerous American citizen Yaser Hamdi to go live in Saudi Arabia, and indicting American citizen Jose Padilla on charges very different from the "dirty bomb" allegations that supposedly justified detaining him for years.

And the Bush Administration took power from Congress by acting as if the Congressionally-ratified Geneva Convention does not apply. Meanwhile, its CIA has reportedly administered a network of secret foreign prisons -- unbeknownst to the courts and, it seems, to Congress (or much of it).

Now, once again, the President has bypassed the federal courts and Congress entirely - with the Executive refusing even to avail itself of the separate, secret FISA court convened by Congress as the only entity with the power to authorize clandestine surveillance of espionage or terrorism suspects.

Importantly, the question now before the country is not some marginal blurring of lines between the three departments of government. The question is whether the Executive department will overwhelmingly dominate the other two - and, especially, the federal courts. President Bush claims Congressional leaders, at least, knew of his warrantless wiretapping, but no court was told.

The Bush Administration has taken the position that it has inherent constitutional authority to exempt itself from all legal constraint when the President invokes his commander-in-chief authority to respond to external national security threats. Surely, this position is wrong.

The Executive's Tactics: "Paper," Conceal, Trot Out the Paper

The Administration's M.O. in all such initiatives seems to be consistent. Within the Executive Branch, it uses the Department of Justice's Office of Legal Counsel - which used to serve as a neutral arbiter on questions of Executive power - as a veritable department of justification: a place where Executive Branch ideologues concoct defenses, no matter how one-sided or incomplete, for every act the President would like to undertake. It is from OLC, for instance, that the notorious torture memos came - and now, the justification for warrantless wiretaps.

In this way, the President can always claim that he was acting within his legal authority as the Justice Department itself defined it. But as the attorneys currently staffing OLC are not inclined to see any constitutional constraint on Presidential power at all, it is absurd to rely on their supposedly drawing the boundaries of the authority within which the President can operate.

In their view, there are no such boundaries. Yet they have produced lengthy analyses to "paper" this simple, incredible view, which might have been expressed in a single naked, unpersuasive sentence.

Next, the Administration shrouds its conduct in a thick veil of secrecy so that not only us ordinary folk, but even high-ranking Congressional officials will have no idea what power the President is actually exercising. And of course, the Administration has terrified potential whistleblowers through threats of investigation and prosecution. That means two more potential groups who might have argued for, or set, boundaries are silenced: Members of Congress, and the small group of those last few conscientious persons within the Administration who still believe it ought to comply with the Constitution, and are willing to say so.

Then, when the Administration's actions finally come to light, its officials trot out whatever legal justifications its lawyers have cooked up. In the past, these justifications have either been rejected by the courts (as when the Supreme Court emphatically rejected the Administration's view of its authority over enemy combatants) or exposed as astonishingly weak (as with the notorious "torture memos"). But OLC did, at least, give the Administration some paper to wave around, with lawyers' names on top.

These "legal" explanations are also invariably accompanied by an insistence that everything the Administration is doing is a necessary component of the amorphous war on terror, and that the American people can and should trust their President to do the right thing. But this argument simply can't justify the Executive's usurpation of power: After all, America has faced crises before without deciding to revert to monarchy.

The Wiretapping: Different Issue, Same Modus Operandi

This latest episode - of warrantless wiretapping - exhibits the same m.o. The Administration is not yet releasing its internal legal analysis for why the President could flout Congress's scheme for authorizing secret surveillance of terrorism suspects. But the contours of this analysis are becoming clearer.

As a first line of defense, the Administration is claiming that Congress, when it enacted its Authorization of the Use of Military Force (AUMF) in the immediate aftermath of 9/11, gave the President a free pass to end-run the FISA court.

This argument is risible. As a general matter, the law strongly disfavors such implied repeals of existing statutes: If a law is meant to decimate prior law, it ought to say that's what it's doing, and generally, it does. And especially when the prior law relates to constitutional rights - here, Fourth Amendment rights - its repeal ought to be crystal clear, so that repeal can immediately be challenged in court.

In addition, nothing in the debate over AUMF suggests that Congress had anything like the NSA surveillance program in mind when it gave Bush the go-ahead to attack Al Qaeda in Afghanistan. After all, that decision was a no-brainer, at the time. What Congressperson was gaming out what would happen years ahead? And again, where in the silence is authorization found?

By this logic, the Administration could invoke the AUMF to override pretty much any federal statute. And that's surely wrong.

Moreover, on a more specific level, Congress purposefully limited the AUMF to the use of force against persons directly connected to Al Qaeda. From what has emerged, the Administration's secret wiretapping program appears to cover a multitude of persons who would not qualify as targets under the AUMF - and, thus, the AUMF rationale falls of its own weight.

The President's real argument, however, is not based on the AUMF, but - once again -- on what he claims is his inherent constitutional powers as commander-in-chief. Here, the President's claim seems breathtaking in scope. He appears to be claiming that the President may disregard every law as he - in his own discretion - deems necessary, to fight a war on terror that has no clearly defined scope, nor any clearly defined foe, nor any knowable end point.

Furthermore, under this theory, it would appear that Congress has no power to curb the President's authority -- because the President alone has the power to define the terrorist threat and the means necessary to combat it.

This is not a constitutional design I recognize. Wasn't one of the Framers' primary concerns to avoid the concentration of such power in a king-like chief executive? Didn't the Framers believe that such a concentration of power was deeply corrupting? And hasn't history only reinforced those lessons?

Revision of the Law May Be Necessary, but Ignoring and Circumventing It Was Not

This issue, it's important to note, is not a political one, and should not be divisive. It may be that this country needs to revise its laws to respond effectively to terrorist threats - and that is the policy issue on which right and left will predictably differ, just as they have on the USA Patriot Act.

But what we all should be able to agree on, is that the Executive's simply opting to act illegally -- without even asking its own same-party Congress to change the law - is wrong.

Perhaps FISA needs to be revamped. Notably, it already contains exceptions for emergencies and the FISA court has a long history of working cooperatively with the intelligence agencies, But some say that the kind of "data mining" the government absolutely must do won't pass muster under current FISA court standards, and that therefore, FISA must be amended.

I don't know whether these claims are true; I'm willing to hear arguments on both sides. It's the missing debate on this, that is the national shame here.

Unilateral Executive Power Is Tyranny, Plain and Simple

I might even accept, for the purposes of argument, that, in the panicky aftermath of 9/11, it was understandable for the President to act unilaterally to protect against a potential second-wave attack, regardless of constitutional limits.

But over four years have passed, and there has been copious time for deliberation and, if necessary, Congressional action. In this context, it simply cannot be that the President, acting alone, has the permanent authority he now claims to override a carefully-wrought congressional scheme for fighting terrorism, and enact his own set of secret rules.

Naturally, such a scheme implicates civil liberties, as enshrined in our Constitution. It is not the President's job, alone, to make the nation's trade-offs between security and privacy. Congress ought to legislate, and if it goes too far, the Supreme Court ought to make sure its legislation stays within constitutional bounds.

But even worse, such a scheme threatens basic democratic principles. This Administration wants virtually unlimited power with essentially no accountability. I might almost be able to stomach Bush's "just trust me" claims of Executive power, if the President could be made truly accountable for his decisions down the road. But Bush wants the power with no public debate and a minimum of public disclosure.

I wouldn't trust any Administration with such a blank check. And this isn't just any Administration. It's an Administration with a deeply troubling history of mistakes and obfuscation, an Administration that seems to expand its definition of terrorism however it finds convenient, an Administration that brooks none of the internal dissent that might check authoritarian impulses.

Against that backdrop, the new revelations of warrantless wiretapping, and the Administration's latest set of explanations, sound less like a plan to fight terror than like tyranny's engines, raring to go.

What Do You Think? Message Boards

http://writ.news.findlaw.com/lazarus/20051222.html

This piece has all kinds of links. If you go to their site you can click on them (sorry I don't have time to add all the links).

Top 12 media myths and falsehoods on the Bush administration's spying scandal

Summary: Media Matters presents the top 12 myths and falsehoods promoted by the media on President Bush's spying scandal stemming from the recent revelation in The New York Times that he authorized the National Security Agency (NSA) to eavesdrop on domestic communications without the required approval of the Foreign Intelligence Surveillance court.

As The New York Times first revealed on December 16, President Bush issued a secret presidential order shortly after the September 11, 2001, terrorist attacks that authorized the National Security Agency (NSA) to eavesdrop on international phone and email communications that originate from or are received within the United States, and to do so without the court approval normally required under the Foreign Intelligence Surveillance Act (FISA). Facing increasing scrutiny, the Bush administration and its conservative allies in the media have defended the secret spying operation with false and misleading claims that have subsequently been reported without challenge across the media. So, just in time for the holidays, Media Matters for America presents the top myths and falsehoods promoted by the media on the Bush administration's spying scandal.

1: Timeliness necessitated bypassing the FISA court

Various media outlets have uncritically relayed President Bush's claim that the administration's warrantless domestic surveillance is justified because "we must be able to act fast ... so we can prevent new [terrorist] attacks." But these reports have ignored emergency provisions in the current law governing such surveillance -- FISA -- that allow the administration to apply to the Foreign Intelligence Surveillance Court for a search warrant up to 72 hours after the government begins monitoring suspects' phone conversations. The existence of this 72-hour window debunks the argument that the administration had to bypass the law to avoid delay in obtaining a warrant. The fact that the administration never retroactively sought a warrant from the FISA court for its surveillance activities suggests that it was not the need to act quickly that prevented the administration from complying with the FISA statute, but, rather, the fear of being denied the warrant.

2: Congress was adequately informed of -- and approved -- the administration's actions

Conservatives have sought to defend the secret spying operation by falsely suggesting that the Bush administration adequately informed Congress of its actions and that Congress raised no objections. For example, on the December 19 broadcast of Westwood One's The Radio Factor, host Bill O'Reilly claimed that the NSA's domestic surveillance "wasn't a secret program" because "the Bush administration did keep key congressional people informed they were doing this." The claim was also featured in a December 21 press release by the Republican National Committee (RNC).

In fact, both Republicans and Democrats in Congress have said that the administration likely did not inform them of the operation to the extent required by the National Security Act of 1947, as amended in 2001. Members of both parties have also said that the objections they did have were ignored by the administration and couldn't be aired because the program's existence was highly classified.

As The New York Times reported on December 21, Rep. Peter Hoekstra (R-MI), former Sen. Bob Graham (D-FL), Senate Intelligence Committee ranking member John D. Rockefeller IV (D-WV), and Senate Democratic Leader Harry Reid (D-NV) have stated that they did not receive written reports from the White House on the surveillance operation, as required by the National Security Act:

The demand for written reports was added to the National Security Act of 1947 by Congress in 2001, as part of an effort to compel the executive branch to provide more specificity and clarity in its briefings about continuing activities. President Bush signed the measure into law on Dec. 28, 2001, but only after raising an objection to the new provision, with the stipulation that he would interpret it "in a manner consistent with the president's constitutional authority" to withhold information for national-security or foreign-policy reasons.

[...]

[I]n interviews, Mr. Hoekstra, Mr. Graham and aides to Mr. Rockefeller and Mr. Reid all said they understood that while the briefings provided by [Vice President Dick] Cheney might have been accompanied by charts, they did not constitute written reports. The 2001 addition to the law requires that such reports always be in written form, and include a concise statement of facts and explanation of an activity's significance.

Further, Rockefeller recently released a copy of a letter he wrote to Cheney on July 17, 2003, raising objections to the secret surveillance operation. As the Times reported on December 20, Rockefeller said on December 19 that his concerns "were never addressed, and I was prohibited from sharing my views with my colleagues" because the briefings were classified. The December 21 Times report noted that House Democratic Leader Nancy Pelosi (D-CA) said she too sent a letter to the Bush administration objecting to the secret surveillance operation, and that Graham alleged that he was never informed "that the program would involve eavesdropping on American citizens."

3: Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Surveillance Act

Conservatives such as nationally syndicated radio host Rush Limbaugh and American Cause president Bay Buchanan have defended the administration by falsely claiming that the administration's authorization of domestic surveillance by the NSA without warrants is legal under FISA. In fact, FISA, which was enacted in 1978, contains provisions that limit such surveillance to communications "exclusively between foreign powers," specifically stating that the president may authorize electronic surveillance without a court order only if there is "no substantial likelihood" that the communications of "a United States person" -- a U.S. citizen or anyone else legally in the United States -- will be intercepted. Such provisions do not allow for the Bush administration's authorization of domestic surveillance of communications between persons inside the United States and parties outside the country.

FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering "foreign intelligence information" for "a period" no more than 15 days "following a declaration of war by the Congress." This provision does not permit Bush's conduct either, as he acknowledged that he had reauthorized the program more than 30 times since 2001, and said that the program is "reviewed approximately every 45 days."


4: Clinton, Carter also authorized warrantless searches of U.S. citizens

Another tactic conservatives have used to defend the Bush administration has been to claim that it is not unusual for a president to authorize secret surveillance of U.S. citizens without a court order, asserting that Democratic presidents have also done so. For example, on the December 21 edition of Fox News's Special Report, host Brit Hume claimed that former presidents Jimmy Carter and Bill Clinton issued executive orders "to perform wiretaps and searches of American citizens without a warrant."

But as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on "United States persons." Subsequent reports by NBC chief foreign affairs correspondent Andrea Mitchell and The Washington Post also debunked the conservative talking point while noting that the claim was highlighted in the December 21 RNC press release.

From ThinkProgress, which documented how internet gossip Matt Drudge selectively cited from the Clinton and Carter executive orders to falsely suggest they authorized secret surveillance of U.S. citizens without court-obtained warrants:

What Drudge says:

Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.

Drudge pulls the same trick with Carter.

What Drudge says:

Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

What Carter's executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain "the contents of any communication to which a United States person is a party." So again, no U.S. persons are involved.

5: Only Democrats are concerned about the Bush administration's secret surveillance

As part of a larger problem of imprecise reporting, a number of media reports have falsely suggested that the debate over the Bush administration's secret surveillance of domestic communications is purely a partisan dispute between Democrats and Republicans. For example, on the December 22 broadcast of NBC's Today, Newsweek chief political correspondent Howard Fineman said: "[W]hile the Bill of Rights is something we all cherish, I think the Democrats politically need to be careful, because the president's going to argue, as he already is, that post-9-11, strong surveillance measures are required."

In fact, several prominent Republicans have expressed concern that the Bush administration's actions might violate the law or otherwise be objectionable. On December 18, Sen. Lindsey O. Graham (R-SC) said that "I don't know of any legal basis to go around" the requirement that the White House formally apply to the FISA court for a warrant to engage in domestic surveillance, while Sen. John McCain (R-AZ) said it is a "legitimate question" to ask why "the president chose not to use FISA." After Attorney General Alberto R. Gonzales cited executive authority in defending the legality of the administration's actions, Sen. Arlen Specter (R-PA) -- who is in charge of organizing an investigation into the issue -- responded that he was "skeptical of the attorney general's citation of authority."

6: Debate is between those supporting civil liberties and those seeking to prevent terrorism

Many media figures have created a false dichotomy by framing the debate over the Bush administration's actions as one between those who support protecting civil liberties and those who favor protecting America from another deadly terrorist attack. For example, NBC host Katie Couric claimed the debate amounted to "legal analysts and constitutional scholars versus Americans, who say civil liberties are important, but we don't want another September 11," while NBC's Mitchell wondered whether Americans should be more concerned about "[a] terror attack or someone going into their hard drive and intercepting their emails."

Such statements set up exactly the false debate put forth by Cheney and Bush to defend the administration's actions, as Mitchell subsequently noted on the December 21 edition of MSNBC's Hardball with Chris Matthews:

MITCHELL: [T]hey set up successfully, the White House, this premise of you're either for security and protecting the American people post-9-11 or you're worried about surveillance. This either-or proposition, when a lot of people say that's a false choice.

7: Bin Laden phone leak demonstrates how leak of spy operation could damage national security

Several media outlets have uncritically cited a 1998 Washington Times report on Osama bin Laden as an example of how leaking information about the Bush administration's domestic spying operation could harm national security. The media have falsely suggested that the Washington Times report revealed that the United States was monitoring bin Laden's conversations on a satellite phone and that bin Laden quickly ceased using the phone after the report surfaced. In fact, the article only noted that bin Laden was using a satellite phone, not that the U.S. was monitoring it; according to a December 22 report by The Washington Post, bin Laden apparently had stopped using the phone by the time any newspaper reported that the U.S. had been monitoring his conversations. Further, the Post noted that another report on bin Laden's phone -- that relied on the Taliban as its source -- preceded the Washington Times article by nearly two years, while another report predating the Times article relied on bin Laden himself.

One example of media misrepresenting the bin Laden incident occurred on the December 17 edition of CNN Live Saturday, when correspondent Brian Todd reported:

TODD: We asked one expert how important it is for the NSA and its methods to be kept so secret. He cited one breach as an example, the damage done when it was made public that intelligence agencies were monitoring Osama bin Laden's cell phone calls.

In a December 19 press conference, Bush also highlighted the purported bin Laden leak as an example of why leaking information about the domestic spying operation was a "shameful act" that is "helping the enemy":

QUESTION: Thank you, sir. Are you going to order a leaks investigation into the disclosure of the NSA surveillance program?

[...]

BUSH: My personal opinion is it was a shameful act, for someone to disclose this very important program in time of war.

The fact that we're discussing this program is helping the enemy.

[...]

BUSH: Let me give you an example about my concerns about letting the enemy know what may or may not be happening.

In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak.

And guess what happened. Osama bin Laden changed his behavior. He began to change how he communicated.

But as the December 22 Post report documented, the August 21, 1998, Washington Times article in question "never said that the United States was listening in on bin Laden"; the article merely reported that bin Laden "keeps in touch with the world via computers and satellite phones." The Post also noted that the Washington Times report was not the first article to note bin Laden's use of a satellite phone: A December 16, 1996, Time magazine report cited the Taliban in reporting that bin Laden "uses satellite phones to contact fellow Islamic militants in Europe, the Middle East and Africa." And the day before the Times article, CNN terrorism analyst Peter Bergen cited a 1997 interview he conducted with bin Laden to report that bin Laden "communicates by satellite phone." Finally, the Post noted that it was not until "after bin Laden apparently stopped using his phone" that the Los Angeles Times first reported on September 7, 1998, that the U.S. had been monitoring his phone conversations. As a follow-up Post article on December 23 noted, bin Laden stopped using the phone "within days of a cruise missile attack on his training camps in Afghanistan."

The false claim that the Washington Times article was responsible for causing bin Laden to stop using the satellite phone apparently originated in the 9-11 Commission report, which asserted: "Worst of all, al Qaeda's senior leadership had stopped using a particular means of communication almost immediately after a leak to the Washington Times."

8: Gorelick testimony proved Clinton asserted "the same authority" as Bush

In a December 20 article headlined "Clinton Claimed Authority to Order No-Warrant Searches," National Review White House correspondent Byron York drew attention to then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony before the House Intelligence Committee, in which she stated that the president has "inherent authority to conduct warrantless physical searches." While York's article did not explicitly draw a parallel between the Clinton administration's 1994 policy regarding such searches and the current Bush administration controversy regarding unwarranted domestic surveillance, conservative media figures such as National Review editor Rich Lowry and syndicated columnist Charles Krauthammer have done just that.

But Gorelick's testimony does not prove that the Clinton administration believed it had the authority to bypass FISA regulations, as the Bush administration has argued in the case of the NSA's domestic wiretapping program.

Unlike electronic surveillance, the "physical searches" to which Gorelick referred were not restricted by FISA at the time of her 1994 testimony. Therefore, by asserting the authority to conduct physical searches for foreign intelligence purposes, the Clinton administration was not asserting that it did not have to comply with FISA. In October 1994, Congress passed legislation -- with Clinton's support -- to require FISA warrants for physical searches. Thereafter, the Clinton administration never argued that any "inherent authority" pre-empted FISA. To the contrary, in February 1995 Clinton issued an executive order that implemented the new FISA requirements on physical searches.

By contrast, the Bush administration has argued that it has the authority to authorize surveillance of domestic communications without court orders, despite FISA's clear and longstanding restrictions on warrantless electronic eavesdropping.

9: Aldrich Ames investigation is example of Clinton administration bypassing FISA regulations

Some conservatives have specifically cited the joint CIA/FBI investigation of Aldrich Ames, a CIA analyst ultimately convicted of espionage, as an example of Clinton invoking executive authority to overstep FISA by authorizing a physical search of a suspect without a court order. For example, on the December 21 edition of CNN's The Situation Room, Republican attorney Victoria Toensing falsely claimed that the Clinton administration did "carry out that authority" to bypass the FISA requirements "when they went into Aldrich Ames's house without a warrant."

But as with Gorelick's testimony, the Ames investigation took place before the 1995 FISA amendment requiring warrants for physical searches. In other words, in conducting these searches, the Clinton administration did not bypass FISA because FISA did not address physical searches. Further, there is ample evidence that the Clinton administration complied with the FISA requirements that did exist on wiretapping: U.S. District Court Judge Royce C. Lamberth, who previously served on the FISA court, has noted the "key role" the court played in the Ames case to "authorize physical entries to plant eavesdropping devices"; and former deputy assistant attorney general Mark M. Richard established that "the Attorney General was asked to sign as many as nine certifications to the FISA court in support of applications for FISA surveillance" during the Ames investigation.

10: Clinton administration conducted domestic spying

Conservative media figures have claimed that during the Clinton administration, the NSA used a program known as Echelon to monitor the domestic communications of United States citizens without a warrant. While most have offered no evidence to support this assertion, NewsMax, a right-wing news website, cited a February 27, 2000, CBS News 60 Minutes report that correspondent Steve Kroft introduced by asserting: "If you made a phone call today or sent an email to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency." NewsMax used the 60 Minutes segment to call into question The New York Times' December 16 report that Bush's "decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad."

On December 19, Limbaugh read the NewsMax article on his nationally syndicated radio show. Limbaugh told listeners that Bush's surveillance program "started in previous administrations. You've heard of the NSA massive computer-gathering program called Echelon. 60 Minutes did a story on this in February of 2000. Bill Clinton still in office." The Echelon claim has also been repeated by Wall Street Journal columnist John Fund and radio host G. Gordon Liddy.

The 60 Minutes report appears to have been based largely on anecdotal evidence provided by a former Canadian intelligence agent and a former intelligence employee who worked at Menwith Hill, the American spy station in Great Britain, in 1979. In addition, the report contained footage of an assertion by then-Rep. Bob Barr (R-GA) that "Project Echelon engages in the interception of literally millions of communications involving United States citizens." But the report also included comments from then-chairman of the House Permanent Select Committee on Intelligence Rep. Porter Goss (R-FL), who, Kroft reported, "still believes ... that the NSA does not eavesdrop on innocent American citizens." Kroft asked Goss: "[H]ow can you be sure that no one is listening to those conversations?" Goss responded, "We do have methods for that, and I am relatively sure that those procedures are working very well."

While Goss did not say in his 60 Minutes interview that the NSA does not spy on the domestic communications of Americans without a warrant, then-director of central intelligence George J. Tenet and then-National Security Agency director Lt. Gen. Michael V. Hayden said exactly that to Goss's committee less than two months later. As ThinkProgress has noted, Tenet testified before the intelligence committee on April 12, 2000. Denying allegations that Echelon was used to spy on Americans in the United States without a warrant, Tenet stated: "We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department." In the same hearing, Hayden testified: "If [an] American person is in the United States of America, I must have a court order before I initiate any collection [of communications] against him or her."

Hayden also denied the "urban myth" that the NSA "ask[s] others to do on our behalf that which we cannot do for ourselves." This appears to have been a response to the allegation -- noted by 60 Minutes -- that the NSA was exchanging information with foreign intelligence services that did monitor the domestic communications of Americans. Hayden stated: "By executive order, it is illegal for us to ask others to do what we cannot do ourselves, and we don't do it."

Tenet and Hayden's congressional testimony leaves two possibilities: Either they were not telling Congress the truth, or the claim that the NSA used the Echelon program to monitor the domestic communications of Americans is incorrect.

Hayden now serves as principal deputy director of national intelligence and has vigorously defended Bush's warrantless domestic surveillance program. At a December 19 press conference, he acknowledged that Bush's program goes beyond what is authorized under FISA. Hayden described it as "a more -- I'll use the word 'aggressive' program than would be traditionally available under FISA."

11: Moussaoui case proved that FISA probable-cause standard impedes terrorism probes

Some of the administration's supporters have attempted to defend the domestic surveillance program by pointing to a purported situation where the cumbersome FISA regulations prevented crucial intelligence gathering. In a December 20 Washington Post op-ed, Weekly Standard editor William Kristol and American Enterprise Institute resident scholar Gary Schmitt cited the 2001 case of Zacarias Moussaoui as evidence that the "difficulty with FISA is the standard it imposes for obtaining a warrant aimed at" a domestic target. Kristol and Schmitt claimed that the evidence the FBI had compiled against Moussaoui did not "rise to the level of probable cause under FISA":

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

But contrary to Kristol and Schmitt's argument that the probable-cause standard established by FISA was too high in this case, a 2003 Senate Judiciary Committee report found that the FBI's evidence against Moussaoui was, in fact, sufficient. The report instead asserted that FBI personnel who handled the warrant application "failed miserably" in their efforts to convince FBI attorneys that the threshold for establishing probable cause that Moussaoui was an "agent of a foreign power" (and therefore subject to surveillance pursuant to FISA) had been met .

The bipartisan report, compiled by Sens. Patrick Leahy (D-VT), Charles Grassley (R-IA), and Arlen Specter (R-PA), examined in detail the FBI's handling of the Moussaoui FISA application, which was delivered to FBI headquarters by the Minneapolis field office, handled by a supervisory special agent (SSA) there, and ultimately rejected as insufficient by FBI attorneys. The senators determined that the SSA in charge of the application provided the attorneys with a "truncated" version of the evidence compiled by the Minneapolis agents and failed to search for additional "information relevant to the application." Moreover, the report found that both the SSA and the attorneys had employed an "unnecessarily high standard" for probable cause -- one that exceeded the legal requirements set out by FISA:

In our view, the FBI applied too cramped an interpretation of probable cause and "agent of a foreign power" in making the determination of whether Moussaoui was an agent of a foreign power. FBI Headquarters personnel in charge of reviewing this application focused too much on establishing a nexus between Moussaoui and a "recognized" group, which is not legally required. Without going into the actual evidence in the Moussaoui case, there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application.

Despite this report's having established that the FBI's misunderstanding of the FISA requirements resulted in the rejection of the Moussaoui application, a December 23 New York Times article reported without challenge the FBI's argument that FISA's "cumbersome submission requirements" were to blame:

Some agents complained that the FISA court's cumbersome submission requirements and insistence on strict adherence to the law had contributed to the impression that the court itself was an obstacle to aggressive investigation of terror cases. As an example, these agents suggested F.B.I. lawyers did not seek a FISA warrant in the case of Zacarias Moussaoui, who was arrested shortly before the 2001 attacks, in part because they believed the court would reject it.

12: A 2002 FISA review court opinion makes clear that Bush acted legally

Recently, conservative media figures have misleadingly cited a 2002 opinion by the Foreign Intelligence Surveillance Court of Review (FISCR) to claim that the president could authorize warrantless domestic electronic surveillance despite FISA's restrictions. They have pointed to the court's reiteration of the president's inherent constitutional authority to conduct foreign intelligence surveillance without a warrant, which FISA cannot encroach upon. Therefore, they argue, Bush could authorize NSA's warrantless monitoring of "U.S. persons," regardless of FISA's restrictions.

But, as Media Matters documented, this argument is a red herring. Their citation of the decision to support the contention that Congress cannot encroach upon the president's constitutional authority ignores constitutional limits on that authority. Of course a law passed in 1978 would not trump the Constitution -- the supreme law of the land. The question is the scope of that presidential authority and whether it extends to acts that would violate the provisions of FISA protecting U.S. persons from excessive government intrusion. Contrary to these media figures' suggestions, the 2002 FISCR opinion does not address that question.

Regardless, media figures have asserted that the FISCR opinion supports the contention that Bush is not bound by FISA.

Most prominent among these has been National Review White House correspondent Byron York, who in a post on the National Review Online's weblog, The Corner, titled "READ THIS IMPORTANT ARTICLE," promoted a Chicago Tribune op-ed by John Schmidt, an associate attorney general under Clinton, supporting the legality of the administration's surveillance program. Schmidt wrote:

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant. In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

[...]

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

The Drudge Report website also cited Schmidt's Tribune op-ed with a link captioned "Associate attorney general under Clinton: President had legal authority to OK taps ..."

Similarly, a December 20 Wall Street Journal editorial asserted:

FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

Fox News chief Washington correspondent Jim Angle made a similar claim on the December 20 edition of Fox News' Special Report with Brit Hume, stating, "In 2002, [FISA's] own court of review upheld the president's powers and pointed to an appeals court decision, noting that it, as did all other courts to have decided the issue, held that the president did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Others who have repeated this claim in the media include Bradford Berenson, a former associate White House counsel, who made the assertion on the December 21 broadcast of PBS' The NewsHour with Jim Lehrer. Berenson worked in the Bush White House from 2001 to 2003, and after the September 11 attacks "played a significant role in the executive branch's counterterrorism response."

—A.S., J.K., J.S., S.S.M., & R.S.K.

Related Items
Fox's Angle distorted Rep. Harman's statements on warrantless spy program (12/22/2005)


Editorial boards criticize secret wiretapping authorized by Bush (12/19/2005)


Couric pitted constitutional scholars versus "Americans" who "don't want another September 11" (12/19/2005)


Russert allowed Rice to deflect eavesdropping questions (12/19/2005)


Playing softball: White House press corps repeatedly failed to challenge Bush at press conference (12/20/2005)


Mitchell, Fineman portrayed bipartisan opposition to Bush as strictly Democratic (12/23/2005)

http://mediamatters.org/items/200512240002

December 24, 2005
Spy Agency Mined Vast Data Trove, Officials Report
By ERIC LICHTBLAU and JAMES RISEN
WASHINGTON, Dec. 23 - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.

"There was a lot of discussion about the switches" in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. "You're talking about access to such a vast amount of communications, and the question was, How do you minimize something that's on a switch that's carrying such large volumes of traffic? The court was very, very concerned about that."

Since the disclosure last week of the N.S.A.'s domestic surveillance program, President Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda.

What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

The current and former government officials who discus