Sen. Robert Byrd is the eloquent elder statesman whose speeches in the run-up to the present war offered potent warnings as to the dangers and unpredictability of war.
Now, the Senator is once again at the forefront of the fight for the American conscience– or, if you like, the American soul. Yesterday, he had this to say about the recent revelations that the President has for several year’s now specifically allowed US security agencies to spy on the US public without even complying with legislation that requires them to get a warrant to do this from an existing, specially constituted court.
Byrd’s remarks were under the potent title, No President is above the Law. They included the following:
- We know that Vice President Dick Cheney has asked for exemptions for the CIA from the language contained in the McCain torture amendment banning cruel, inhumane, and degrading treatment. Thank God his pleas have been rejected by this Congress.
Now comes the stomach-churning revelation through an executive order, that President Bush has circumvented both the Congress and the courts. He has usurped the Third Branch of government – the branch charged with protecting the civil liberties of our people – by directing the National Security Agency to intercept and eavesdrop on the phone conversations and e-mails of American citizens without a warrant, which is a clear violation of the Fourth Amendment. He has stiff-armed the People’s Branch of government. He has rationalized the use of domestic, civilian surveillance with a flimsy claim that he has such authority because we are at war. The executive order, which has been acknowledged by the President, is an end-run around the Foreign Intelligence Surveillance Act, which makes it unlawful for any official to monitor the communications of an individual on American soil without the approval of the Foreign Intelligence Surveillance Court.
What is the President thinking?
- Congress has provided for the very situations which the President is blatantly exploiting. The Foreign Intelligence Surveillance Court, housed in the Department of Justice, reviews requests for warrants for domestic surveillance. The Court can review these requests expeditiously and in times of great emergency. In extreme cases, where time is of the essence and national security is at stake, surveillance can be conducted before the warrant is even applied for.
This secret court was established so that sensitive surveillance could be conducted, and information could be gathered without compromising the security of the investigation. The purpose of the FISA Court is to balance the government’s role in fighting the war on terror with the Fourth Amendment rights afforded to each and every American.
The American public is given vague and empty assurances by the President that amount to little more than “trust me.” But, we are a nation of laws and not of men. Where is the source of that authority he claims? I defy the Administration to show me where in the Foreign Intelligence Surveillance Act, or the U.S. Constitution, they are allowed to steal into the lives of innocent America citizens and spy.
When asked yesterday what the source of this authority was, Secretary of State Condoleezza Rice had no answer. Secretary Rice seemed to insinuate that eavesdropping on Americans was acceptable because FISA was an outdated law, and could not address the needs of the government in combating the new war on terror. This is a patent falsehood. The USA Patriot Act expanded FISA significantly, equipping the government with the tools it needed to fight terrorism. Further amendments to FISA were granted under the Intelligence Authorization Act of 2002 and the Homeland Security Act of 2002. In fact, in its final report, the 9/11 Commission noted that the removal of the pre-9/11 “wall” between intelligence officials and law enforcement was significant in that it “opened up new opportunities for cooperative action.”
The President claims that these powers are within his role as Commander in Chief. Make no mistake, the powers granted to the Commander in Chief are specifically those as head of the Armed Forces. These warrantless searches are conducted not against a foreign power, but against unsuspecting and unknowing American citizens. They are conducted against individuals living on American soil, not in Iraq or Afghanistan. There is nothing within the powers granted in the Commander in Chief clause that grants the President the ability to conduct clandestine surveillance of American civilians. We must not allow such groundless, foolish claims to stand.
The President claims a boundless authority through the resolution that authorized the war on those who perpetrated the September 11th attacks. But that resolution does not give the President unchecked power to spy on our own people. That resolution does not give the Administration the power to create covert prisons for secret prisoners. That resolution does not authorize the torture of prisoners to extract information from them. That resolution does not authorize running black-hole secret prisons in foreign countries to get around U.S. law. That resolution does not give the President the powers reserved only for kings and potentates.
I continue to be shocked and astounded by the breadth with which the Administration undermines the constitutional protections afforded to the people, and the arrogance with which it rebukes the powers held by the Legislative and Judicial Branches. The President has cast off federal law, enacted by Congress, often bearing his own signature, as mere formality. He has rebuffed the rule of law, and he has trivialized and trampled upon the prohibitions against unreasonable search and seizures guaranteed to Americans by the United States Constitution.
We are supposed to accept these dirty little secrets. We are told that it is irresponsible to draw attention to President Bush’s gross abuse of power and Constitutional violations. But what is truly irresponsible is to neglect to uphold the rule of law. We listened to the President speak last night on the potential for democracy in Iraq. He claims to want to instill in the Iraqi people a tangible freedom and a working democracy, at the same time he violates our own U.S. laws and checks and balances? President Bush called the recent Iraqi election “a landmark day in the history of liberty.” I dare say in this country we may have reached our own sort of landmark. Never have the promises and protections of Liberty seemed so illusory. Never have the freedoms we cherish seemed so imperiled.
These renegade assaults on the Constitution and our system of laws strike at the very core of our values, and foster a sense of mistrust and apprehension about the reach of government.
I am reminded of Thomas Payne’s famous words, “These are the times that try men’s souls.”
These astounding revelations about the bending and contorting of the Constitution to justify a grasping, irresponsible Administration under the banner of “national security” are an outrage. Congress can no longer sit on the sidelines. It is time to ask hard questions of the Attorney General, the Secretary of State, the Secretary of Defense, and the Director of the CIA. The White House should not be allowed to exempt itself from answering the same questions simply because it might assert some kind of “executive privilege” in order to avoid further embarrassment.
This powerful reproach needs nothing added to it.
I wonder, though– do you think the President even heard or read anything of what this very wise and experienced Senator said?
On internal spying
Let us make something clear. Suppose some conventional criminal who has nothing to do with terrorism wants to use e-mail for his purposes. Then he really does not care whether it is NSA, FBI or local cops who are are spying on him! Also, he does not care whether they have a proper warrant or not. His real concern is to keep his operational info confidential! But in this, technically, criminals are not different from law abiding citizens who want to keep their credit card info secure.
That is, all criminals, mafiosi and terrorists have to do to protect their communications against law enforcement is to follow regular secularity rules and use tools which are 100% open and available on the Net for everybody to use.
What is worse, modern technology allows practically unbreakable codes, so NSA cannot do much to decrypt properly protected electronic messages.
The conclusion is, neither Patriot Act nor any reasonable eavesdropping legislation can disrupt properly organized criminal communication networks. Argumentation that eavesdropping legislation needs to be kept secret is technically bogus, that’s pure politics and ideology.
1. JAMES RISEN, ERIC LICHTBLAU. Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say: http://www.nytimes.com/2005/12/15/politics/15cnd-program.html?pagewanted=print
“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
2. Wiki on eavesdropping: http://en.wikipedia.org/wiki/Eavesdropping
3. http://www.juancole.com/2005/12/bushist-police-state-and-interlibrary.html
Salon.com feature a good judicial demonstration of the illegality of these spyings. It’s written by David Cole, a professor of law at Georgetown University. Extract :
“Was it legal to do so? Attorney General Alberto Gonzales argues that the president’s authority rests on two foundations: Congress’ authorization of the president to use military force against al-Qaida and the Constitution’s vesting of power in the president as commander in chief, which necessarily includes gathering “signals intelligence” on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president’s assertion of unilateral domestic authority during wartime. … The Supreme Court’s rationale for rejecting Truman’s claims applies with full force to Bush’s policy.”
The whole is short, well written and well worth reading.
Two cheers for the Senator from West Virginia. If only his WVA counterpart (Rockefeller) had spoken up louder when he was supposedly being briefed about such matters.
Alas, Bush’s poll numbers, it seems, are again going up. Sadly, the MSM is again falling horribly flat, with wall-to-wall saturation excuses being offered to give the benefit of much doubt to all the President’s henchmen (and women) from Fox to CNN. Waving the bloody 9/11 shirt still works.
We need a few Republican Senators, say Hagel and maybe even Warner, to also get up their courage and start calling a spade a spade….
Alas, here we are on the darkest night of the year, both literally and politically, and it seems most major politicos and our MSM are still singing tunes from Cheney’s “Home, home on the range” playbook.
Or is it, “silent night?”
Happy Yalda, ya’all.
PS: In the category of LOUD jeers, my basic DISHTV satellite package just replaced MSNBC with FoxNews. GASP. My conspiracy side says that they were determined to help with the broader “cause” to suppress Chris Matthews – who seems rather lonely of late in being willing to ask the hard questions — the ones you’ll not hear O’Reilly, Hannity, Blitzer, Miles O’Brien & the like ask…. BWDIK?
I am passing this information on to those who do not already know it: Bush has been indicted for war crimes by a citizen tribunal. You can see see the list of charges at Bush Crimes Commission
I’ve read a number of blogs and articles on the new NSA spying issue and have found that the issue is complicated by the fact we don’t know exactly what’s going on. Several of the lawyer-written blogs are hemming and hawing a lot. The consensus seems to be that the spying was not unconstitutional in itself because it could be “Reasonable” but possibly against the law, which is a constitutional violation of a different sort.
There isn’t going to be any proof or any smoking gun unless and until there is a court trial with sworn testimony or possibly a Congressional investigation. By the time that happens Bush will be out of office.
I estimate the NYT has more articles to write on this subject, and they have more than they have already said. Whether they really have a smoking gun or not we have no way of guessing.
Bush’s best argument is that they’re filling in the seam between the existing domestic and foreign intelligence investigations. Bush’s worst argument is that the law authorizing the invasion of Iraq also authorized the new wiretapping.
Today’s NYT article goes on to say that Bush ordered that in all of these cases at least one end of the conversation had to be outside the US. But that in a few cases they got it wrong and tapped purely domestic calls when one of the people was using an “International telephone”. I don’t know what that could be unless it’s a satellite phone.
In related news there are complaints that the FBI, not the NSA, has been listening in on the People for the Ethical Treatment of Animals. These are people who literally wouldn’t hurt a fly so there are real questions there. But it’s a separate thing.
The next US Presidential election is in 2 years and I’d guess it’ll take that long to work the issue. I think the NYT is positioning for the next Presidential election.
Oops, next Presidential election is in 3 years…
Warren wrote :
Several of the lawyer-written blogs are hemming and hawing a lot. The consensus seems to be that the spying was not unconstitutional in itself because it could be “Reasonable” but possibly against the law, which is a constitutional violation of a different sort.
A consensus that it could be “reasonable” ? what do you mean by reasonable, when as David Cole writes in his article at salon.com : “Warrantsrequested under FISA can be approved in a matter of hours, and the statute allows the government in emergency situations to put a wiretap in place immediately and then seek court approval later, within 72 hours.”
Bush ordered that in all of these cases at least one end of the conversation had to be outside the US. But that in a few cases they got it wrong and tapped purely domestic calls when one of the people was using an “International telephone”.
This sounds like White House spin at work, trying to minimize things. Two remarks. First, if Bush only wanted to tape conversation with foreign countries, then why not use the normal procedure which is fast and legal ? It would be silly to breach a law and risk being caught when it’s not needed. Second, ok.. leave the phone conversation aside, but they spyed Email as well. Given the virtuality of the web and the possibility to take fake address anywhere, how can they make a difference between correspondence with a foreign country or inside of the US? IMO, the real reason why they didn’t want to go the on the legal path lies with Email, not with the phone and they wanted to monitor all the exchanges including some specific words, ignoring whether there was a foreign country involved or not, but they knew this would cause problem, so they did it in secrecy.
I think the NYT is positioning for the next Presidential election.
Three years in advance ?!! I think you want to insinuate that the case is less serious than it is, discrediting the NYT’s job as furbishing electoral arguments. This is particularly unfair.
Christiane
I agree with much of what you said. But I think it will take years for this to all come to a head. Think about how long Whitewater simmered. The next Republican Presidential convention is in about 2 years. Maybe a bit more. Richard Nixon was re-elected even though the Watergate burglery had been discovered five months earlier. I do think the NYT is timing this politically. I also thought Bush timed the start of the current war politically (but bungled it — he thought the war would be short).
What do I mean by reasonable? I’m saying that smart Administration lawyers can argue that what they did was reasonable. They don’t have to argue that working around the FISA law was reasonable, but that the wiretapping itself was “Reasonable” under the constitution.
The existance of the FISA law is Bush’s real problem here, not the constitution by itself.
Here is the Wall Street Journal’s criticism of Bush on all this.
The other big Bush problem here is what you said, that the FISA allows so much wiretapping there was no need to go around it. So Bush has to reveal enough to describe why he thought it okay to go around FISA. I think he will fail in this and just look as if he made a dumb mistake in going around FISA.
Note that the Clinton administration had a similar proposal called ECHELON although some are saying that it complied with FISA.
I’m reserving most of my personal outrage because I don’t trust either Bush or the New York Times nor the Left. And I certainly don’t trust Bob Barr.
The Democrats have been laying tripwire after tripwire hoping to impeach Bush in revenge for the impeachment of Clinton. It may be that Bush handed them “The sword” they have been looking for.
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