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December 20, 2005It's Not Just Liberals and Democrats Who Are Upset about Bush's Warrant-Free EavesdroppingThose liberal Democrats don't give a damn about the security of the American people and aren't seriously about catching the terrorists; they're only making a fuss about the NSA's secret and warrant-less domestic eavesdropping of US citizens to blast Bush. So goes the Republican spin. But it's not just liberals and Democrats who are concerned about the civil liberties implications of Bush's NSA decision and other White House actions that have sought to expand Bush's power dramatically. On NPR's The Diane Rehm Show yesterday, two prominent conservatives made the case that Bush's authorization of the NSA program was arguably unconstitutional. The pair were David Keene, the chairman of the American Conservative Union, and Bruce Fein, a former associate deputy attorney general during the Reagan administration. You don't get much more conservative than these guys. Both are fierce partisans and veterans of the judicial battles of Washington. But, like other ideologically-motivated conservatives (as opposed to politics-over-principle GOP loyalists), Keene and Fein are troubled by the abuse of presidential power. As I was preparing to go on Fox to discuss the NSA controversy, I found it instructive to read Keene's and Fein's criticism of the program. Consequently, I am sharing it with you. To get the major points, look for the portions I've set in boldface. Thanks to Diane for diving into this. Diane Rehm: Did the President address his decision to allow the NSA to spy on Americans last night, Bruce, and what is the constitutional authority by which he is allowed to do so Bruce Fein: Well Diane, he addressed the issue more completely in his Saturday radio address. But for the listeners, what was done was the president issued a secret order to the National Security Agency in the aftermath of the 9/11 abominations (this would be in 2001) that authorized eavesdropping on Americans who were communicating abroad or were receiving communications from abroad. The President stated that this was not done unless there was clear, known, provable evidence that the individuals associated with Al Qaeda or similar terrorist organizations. However, it's very clear that the only people who made that determination were those in the executive branch. There were no judicial warrants, there were no checks by the legislature to see what standards were being utilized. And we know, in times of war, errors are made frequently with regard to conjectures about whether people are disloyal, or maybe engaged in improper activity. For example, the Japanese Americans who were put in concentration camps during World War II were also said to be loyal suspects and it was found that there wasn't a single act of sabotage committed by any Japanese American in the entire war. The difficulty I think the President had in defending the constitutionality of this is that he undertook this effort in secret and without any Congressional authorization. In 1978 when Congress addressed national security wiretapping it enacted something called the Foreign Intelligence Surveillance Act that provides for a court to issue warrants authorizing national security wiretapping and eavesdropping in order to detect foreign terrorist--foreign infiltration into the United States. The act says; except as authorized by FISA, that's the acronym for this statute no person has the authority to eavesdrop and if they do so under color of state law or under color of federal law it's a crime....It includes the President of the United States. Now the President could argue that this is unconstitutional but he hasn't done that, certainly in any public forum. So the President claims he has inherent constitutional authority that couldn't be limited by Congress to undertake this eavesdropping effort, because he said it was important to save the lives of American citizens and foil foreign terrorists. But if you look historically at what other Presidents have done and what the Supreme Court has said, that claim of inherent authority seems dubious. During the Korean War Harry Truman seized a steel mill, saying that there's likely to be a strike and interrupt the munitions....going to out men in Korea and the Supreme Court held that was unconstitutional. The President simply couldn't make up a power to say "this is important to help the war effort, therefore I can do it." David Keene: Well Bruce is essentially right. To be fair, if one is to believe everything that they've said, the people who they were surveilling under this order were people whose email addresses and phone numbers were found with terrorists. For example, they said they needed to move quickly because they would capture a laptop or get information so that was their nexus. But the problem was that they then went, apparently, went after people who were communicating with them so that you created a chain of people getting bigger and bigger. Having said that as a description of their justification of it, the claim that in trying to protect Americans and pursuing his powers as commander in chief that a President has power that inherently trumps the rest of the Constitution is a sort of exaggerated claim of power on behalf of this President or any other President for that matter..... This is not unique to this war, but it is being carried to an extreme in this war. We have the folks whose mission in their eyes is to protect us and to protect our security saying that that trumps absolutely everything else, and in our history, when we allow that attitude to prevail, we get into trouble.... I think its Presidential overreaching and I think most Americans would certainly oppose it. Just as we have been at the forefront of the call for reform of the Patriot Act, the reauthorization.... I don't argue that they may have as they say a secret legal memo supporting this, they can argue about it. But rational people should oppose it because first of all, they can achieve their goals without these kinds of problems. You don't have to break existing laws, nor do you have to say that neither existing laws nor constitutional guarantees don't count in a time of war. A President can protect this country within the context of our Constitution and within the context of the laws. If he needs different laws, then he ought to request those laws.... Rehm: So why didn't the President go to the court? Fein: Because I think the President believes that he is the only unit of government capable of running a war.....He doesn't believe in separation of powers and that's what makes this so dangerous. He thinks the other branches are obstacles to the Constitution and to democracy when in fact they're essential to that.... Keene: They could have done this legally under FISA, and not only that, but you hear this argument "well we didn't have time" they can take the action under FISA and then get the court to ratify the action. They could have done what they needed to do and they could have done it legally. In addition to which, I think FISA has in the last few years has only rejected one warrant request. And in this instance a FISA judge objected to it--you know how bad something has to be before one of those judges objects to anything? I mean, this is something they should have done. Will Republicans and conservatives who have claimed the NSA controversy is merely a Democratic-orchestrated fuss acknowledge that unease over the program is bipartisan? Don't bet your holiday presents on it. Posted by David Corn at December 20, 2005 03:38 PM |
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"HUBRIS is a bold and provocative book that will quickly become an explosive part of the national debate on how we got involved in Iraq." --Tom Brokaw |
Comments
One issue that I have not yet seen addressed is a followup on the cases Bush authorized the wire taps for. In his comments he stated something to the effect that he "had reauthorized the bill 30 times and would continue to do so." Does that mean there are at least 30 cases that have never been subject to judicial or legislative scrutiny?
If this is the case, then the only way to demonstrate that these authorizations were justified would be to have all of those cases reviewed by the FISA secret court. Since they have rubberstamped virtually all warrant requests in the past it is likely that they would do the same in this case. If however, the court determined that it would not have authorized warrants in a number of these cases (how about more than all previous rejections as a benchmark) then there would be strong evidence that the president (with the attorney general's blessing) clearly exceeded his constitutional authority and should be dealt with accordingly.
Posted by: GMC Anchorage at December 20, 2005 03:58 PM
One issue that I have not yet seen addressed is a followup on the cases Bush authorized the wire taps for. In his comments he stated something to the effect that he "had reauthorized the bill 30 times and would continue to do so." Does that mean there are at least 30 cases that have never been subject to judicial or legislative scrutiny?
If this is the case, then the only way to demonstrate that these authorizations were justified would be to have all of those cases reviewed by the FISA secret court ex post facto. Since they have rubberstamped virtually all warrant requests in the past it is likely that they would do the same in this case. If however, the court determined that it would not have authorized warrants in a number of these cases (how about more than all previous rejections as a benchmark) then there would be strong evidence that the president (with the attorney general's blessing) clearly exceeded his constitutional authority and should be dealt with accordingly.
Posted by: GMC Anchorage at December 20, 2005 03:59 PM
This opens up a whole new door. Who did they phone tap? Bush says only international calls but can you really believe a habitual liar.
USE THE SCRAMBLER FROM NOW ON, MY FELLOW REVOLUTIONISTS
BTW, The revolution will not be televised!
Posted by: alpieda at December 20, 2005 04:01 PM
David,
The very fact that this is being debated is a problem for me. Bush's ability to circumvent the law goes against all of the checks and balances that are supposed to prevent our government from becoming a dictatorship. I guess the fact that they (GOP) control all three branches of government makes them think they can do anything. Well the can't, or shouldn't be able to anyway. I hope that everyone contacts their represtentatives like I have to voice their opinion on this and to call for an investigation (impeachement).
We are not a democracy anymore. We are living in a facist state.
Posted by: flan at December 20, 2005 04:31 PM
The interesting part of all of this from my perspective is the "just trust us to do the right thing mentality". Doesn't the Valerie Plame incident prove that we cannot trust the President and his men to only use their power against terrorists? He and his men will hold no punches politically, and my guess is they are authorizing wiretaps on political opponents as well.
What will people say when we find out that Senator Kerry was wiretapped during the campaign?
Posted by: Chad at December 20, 2005 04:46 PM
Only blow jobs are investigated. That's the American way.
Posted by: Gerald at December 20, 2005 05:08 PM
Has anyone on this site noticed that the Republicans are far more responsible in its diversity of opinions (McCain/Torture, Harriet Mier/Conservatives, reasonable debates/Spying, Social Security reform, etc..) without resorting to infantile name-calling? The Left, on the other hand, slings mud (fascist, dictator, lier) so casually...The more I read the Left blogs, the more chuckling I do...If you folks really think the American people is going to sympathize w/those Americans (mostly naturalized Arabic types; yes, profiling, but very practical in the REAL world) whose trails are picked up on captured laptops or intercepted phone communications, then you have quite clearly shown that idealism is all you've got to offer; certainly not "protection" as we would want. The world moves fast today and our communicating via the internet just shows how wide a circle of contacts anyone could have. I suppose most on the Left would want individual authorizations, backed by grand jury type evidence, in order for our intelligence agencies to track untold number of email addresses, phone numbers, etc...Yes, I think you actually think this is the way to fight the true fascists that is all of our enemies. I alone have 5 email names and pay bill on 6 phone/fax lines, think about that! Get real, we are not fighting Stone Age nomads fresh off the dessert!
Posted by: Sean at December 20, 2005 06:45 PM
Has anyone on this site noticed that the Republicans are far more responsible in its diversity of opinions ... (Harriet Mier/Conservatives)
Anyone who bothers to cite the Miers nomination as an example of conservative responsibility in diversity of opinion truly isn't living in the real world.
Posted by: Diamond LeGrande at December 20, 2005 07:09 PM
Diamonds are a Girlie (Man's) Best Friend! Kinda of lame swing both ways! Yes, I can stoop to you cornuts level! I haven't been this giddy for a while reading of you nuts' misery w/this great country of ours. I knew back when Memogate poped up it was going to bite the Dems! History is about to repeat itself; actually it already has in just the short 15~16 months. Let me gleefully remind you some gorgeous tidbits: Dean/Defeat, Murta/Withdrawl, Kerry/Troop-as-Terrorizers, Pelosi/Agree-w/Murta-but flopped-on-vote. Why supposedly smart people descend to such levels? I guess to make the majority laugh!
Posted by: Sean at December 20, 2005 07:34 PM
Bush's authorizing wiretapping of foreign-connected suspects is a subject of interest to all. I happen to believe the Commander-in-Chief has that inherent right. However, for the Left that think Bush is a dictator set on trampling (American) terrorist suspects' freedom & for all those Republicans out in the wilderness w/concerns as to whether Bush overreached, see Clinton's 1994 steadfast position (the right one!) on his authority to conduct No-Warrant searches (again, foreign-related) following the uncovering of spy Aldrich Ames: http://www.nationalreview.com/york/york200512200946.asp Also, see the usually highly accurate WSJ's editorial citing legal grounds: http://www.opinionjournal.com/editorial/feature.html?id=110007703 Sean
Posted by: Sean at December 20, 2005 11:34 PM
Is it me or would it only seem appropriate for the President to authorize "the actual phone call" that the leader makes to his sergeant stating "It's a go!" or "Attack!"? How high are the Democrats setting the bar for this administration and THEIR future administrations? Do you really want to be in this boat? Do you really want to be part of the demise of such a dynamic program of targeting specific international communication that could potentially lead to additional information/numbers/contacts? Must every call that is monitored lead to an indictment and conviction. I wouldn't set the bar that high for John F. Kerry, were he to have been elected, it's disingenuous for people on the left to do the same to this administration.
Posted by: texasconservative at December 21, 2005 02:45 AM
David
What I find interesting is as Bush is trying to impose our form of government on Iraq he is trashing the very heart of it here.
What most people fail to realize it wasn't a lack of information on what the terrorists planned for 9/11 ( found without secret wiretaps) it was a failure to recognize and act on it.
Posted by: Gerry at December 21, 2005 09:45 AM
Gerry, how then do you refute the information about the calls made by 2 of the hijackers from San Diego shortly before 9/11? Is it unreasonable to think that these and other international calls may have provided a little more information? Also, because we failed to act on it before, is it then a by-gone conclusion that we continue to use existing methods and expect different results?
Posted by: texasconservative at December 21, 2005 12:13 PM
If you read what I wrote you would see I don't refute the information in the calls, I said the powers that be failed to recognize it's importance and yes the government being what it is I sure the same would happen again. My point was the needed information was gotten without illegal secret wiretaps. Also isn't that the definition of insanity, doing the same thing and expecting different results.
Posted by: Gerry at December 23, 2005 09:49 AM
If you read what I wrote you would see I don't refute the information in the calls, I said the powers that be failed to recognize it's importance and yes the government being what it is I sure the same would happen again. My point was the needed information was gotten without illegal secret wiretaps. Also isn't that the definition of insanity, doing the same thing and expecting different results.
Posted by: Gerry at December 23, 2005 09:50 AM
Eight years ago..........I wrote an email.......titled: The Iranian Wedding Fiasco.
Even as a newbie I knew this email had been flagged. I didn't at that point know how to save stuff, but, I still have the computer.
As much as Id like to blame Shrub boy........it goes back a stop or two further.
Posted by: Titchaba at December 24, 2005 02:40 AM
when did you reach this conclusion....when you lovingly looked up as his balls were hitting your chin?
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Posted by: Gregory Taylor at December 27, 2005 03:19 PM
The Constitutional crises of 2006 De facto dictatorship looms if America doesn't act now
Posted by: Carol at December 28, 2005 07:42 PM
Cookies placed on NSA visitor's computers AIRPORT USES CHAT TO SCREEN TRAVELERS: Metro security agents listen for signals you're a threat The Patriot Act at work Get this...a friend of mine and her husband decided to pull some of their money out of their mutual funds and park it in a local bank. They deposited a number of sizeable checks (all over $10,000) -- the next day they got a phone call from their "personal banker" who asked them to come back to the bank to fill in some forms required under the Patriot Act -- she asked the personal banker what's on the forms -- two things she mentioned (1) where did you get this money? (2) how do you intend to use it? WTF????????? My friend said she'd get back to her -- so far, friend and husband have not gone to the bank. They are livid! She told the banker (on the phone) that she was tempted to withdraw her money and go elsewhere -- the banker said, "All banks are required to obtain this information because of the Patriot Act."
Posted by: Carol at December 29, 2005 01:53 PM
Test your Geography Knowledge Apparently, I don't know where anything is unless it's in the U.S. (sheesh)
Posted by: Carol at December 29, 2005 07:19 PM
Just wanted to let you know the New Homeland Security Bill has passed. Things will be different now and Internet surfing as you know it will be tracked by what the FBI calls a "non-intrusive method." The FBI says you will not notice anything different. For a demonstration, click on the Homeland Security link below: Homeland Security
Posted by: Carol at December 30, 2005 08:16 PM
Just wanted to let you know the New Homeland Security Bill has passed. Things will be different now and Internet surfing as you know it will be tracked by what the FBI calls a "non-intrusive method." The FBI says you will not notice anything different. For a demonstration, click on the Homeland Security link below: Homeland Security
Posted by: Carol at December 30, 2005 08:16 PM
I've read with pleasure. Maybe it's offtopic, but i just wanted to say, that it's really interesting to read everything this... You discuss here a lot of interesting things on different useful themes. Thanks for that =)
Posted by: Nataly at January 9, 2006 03:31 PM