Sunday, January 29, 2006

We are the enemy...

Inherently Dangerous

I have now read the entire justice department document defending the NSA warrantless wiretaps.

It is a longer version of what the administration has been saying all along. It admits that the wiretaps were not authorized under FISA unless the AUMF is considered authorization to bypass FISA. That argument has already been hacked to death. It is an exceedingly weak argument.

To re-address this argument briefly, the document states that the AUMF authorized the president to ignore FISA because of the "President's... long-recognized power to engage in communications intelligence targeted at the enemy." These warrantless wiretaps were of US citizens within the United States, not the "enemy." Is there any due process or oversight involved before US citizens can be declared an enemy of the state? The president says no, the decision is his and his alone. That seems to jar with the Bill of Rights.

The document also states that FISA is a restriction "placed on national security operations during times of peace." As mentioned in other posts, FISA is part of Title 50 of the US Code, which is entitled "War and National Security." The president is claiming that laws specifically written for "War and National Security" are laws only relevant in times of peace.

The other argument is the "inherent authority" as commander-in-chief argument. That is even weaker. Commander in Chief is a military title, not a civilian one. It merely means that generals are subordinate to the president - not that Congress is, and most definitely not that civilians are subordinate. Generals can't order civilians about and damn sure can't ignore the law. Neither can a "commander in chief." The president is "commander in chief" only for the military. He is not your commander in chief unless you are on active duty.

What is appalling is the length the administration goes to in order to make these exceedingly weak arguments. The entire document is basically a long justification for the president's power to collect foreign intelligence. The problem with that argument is that it is not disputed, not by anybody. Yes, the president DOES have the authority to spy on our enemies. His powers over foreign policy and foreign intelligence collection are great. The problem is with DOMESTIC intelligence collection. The problem is not with wiretapping Al Queda, it is wiretapping IN THE UNITED STATES, ON US CITIZENS, WITHOUT A WARRANT. This is not about foreign intelligence, it is about our government's actions with respect to US citizens. It is about US.

The document does not even address the FISA restrictions on wiretapping of "US Persons" and constantly repeats that the wiretaps were "international" and that only terrorists and those suspected of terrorism were targeted. Of course this ignores the 4th Amendment. For those who aren't sure if this is a violation of the 4th Amendment, please recall that it was demanded by the People before they would agree to adopting the Constitution, and that our nation had just fought a war against a government that did exactly what the president is claiming he can do - spy on us without a warrant. If the Founding Fathers found the searches and seizures by British soldiers, in wartime, when our territory was a battlefield, so objectionable that they would demand their own government be prevented from doing the same things without a warrant, then why does the President think he can do so merely because we are at war?

The 4th Amendment was not written merely to control law enforcement officers. When it was written there were no organized police forces in existence. In addition, the Bill of Rights was not considered to apply to the states at the time, but only to limit the powers of the federal government. The federal government at the time didn't have any police forces or even any law enforcement responsibilities. Those duties were considered to be the exclusive province of the states. No, the 4th Amendment was considered to apply to soldiers conducting searches of suspected enemies of the state - because who else would conduct those searches in 1789 or 1791? There was no FBI, there was no Justice Department, there was no police force anywhere at all. If the federal government wanted to conduct a search of anybody in 1791 it would order soldiers or sailors to do it. The president now claims that it does not apply to searches of US citizens inside the United States because we are at war and intelligence collection is part of the nature of military force. The document presents the 4th Amendment as only a law-enforcement restriction applying in the "criminal context." That goes against the plain language of the 4th Amendment, its history, and common sense.

The administration also argues that warrantless wiretapping by presidents has a long history, but all the references are to pre-FISA warrantless wiretaps. FDR or Woodrow Wilson could not have violated FISA because FISA didn't exist. Warrantless wiretaps by pre-FISA presidents do not help the administration make its case - and, tellingly, that point is also not even addressed. The guys that wrote this document are obviously some smart lawyers, and the fact that they didn't even address the pre-FISA nature of prior warrantless wiretaps is damning in the extreme. The cases the adminstration cites in support are either pre-FISA or not on point.

The administration also, bizarrely, cites the wiretapping of US telegraph lines by a confederate general during the civil war in support of its contention that wiretapping in time of war does not require a warrant. This is astonishing. The actions of a man who was a self-declared enemy of the United States, who took up arms against the Constitution of the United States and was responsible for the deaths of tens of thousands of US Army soldiers, is being cited in order to show that the president is not violating the Constitution? I didn't realize that the actions of our enemies could be used to set Constitutional law precedents. But yes, in wartime the military can spy on the enemy. Nobody has suggested otherwise. The enemy is not protected by the 4th Amendment or FISA. We, the People of the United States, are protected - unless, of course, the administration's argument is allowed to stand unchallenged.

The only conclusion I can come to from the document is that the president feels we are the enemy - or at least, anybody he wants to declare an enemy is now an enemy. The 4th Amendment does not have a presidential "opt-out" provision. It clearly limits the power of the government, including the president, when it comes to dealing with US citizens. FISA does have exceptions for warrantless wiretaps in certain circumstances, but these were ignored. The president does not even attempt to make the case, as others did on this blog, that his actions fell within those FISA exceptions.

The document goes to great lengths in pointing out the many safeguards the executive branch set up for this program - how the AG must sign off, how the program is regularly reviewed, etc. The document suggests that this means that the Administration does not view the AUMF as a "blank check" per Hamdi. That will not suffice. Our Founding Fathers did not think it wise for the different branches of government to monitor themselves, instead setting up a system of separate but equal branches that would oversee each other. Self-monitoring is not enough. FISA was passed in the first place because self-monitoring by the Executive Branch already failed, repeatedly, in both democratic and republican administrations. The reasons FISA was passes are not discussed in the document.

The document says that if FISA is found to limit the powers of the president in gathering intelligence he feels necessary to fight the war on terror, that FISA itself is unConstitutional. This is a direct challenge to the Congress of the United States.

The document also says that it would be "unreasonable and wholly impractical to demand that Congress specifically amend FISA in order to assist the President in defending the Nation. Such specificity would also have been self-defeating because it would have apprised our adversaries of some of our most sensitive methods of intelligence gathering." Setting aside the obvious question of the need for the Patriot Act if such a statement were true, how does specifying that FISA be amended when it comes to the GWOT give any information to our enemies? Given the nature of the FISA courts, wouldn't they have already expected we would listen in or use pen registers or even data mining?

And why is there any need to amend FISA? Why not simply use the FISA courts and get warrants? The document speaks of the need for speed and flexibility. Yet FISA already allows surveillance (including wiretaps, pen registers, etc.) to be initiated immediately while warrants are sought. There is no need to "wait" for FISA approval before initiating surveillance. And FISA courts approve 99.9997368 % of the requests made. If FISA courts wouldn't approve the requests, wouldn't that probably be only in cases of egregious violations of the rights of innocent US citizens given that FISA judges only turned down 5 out of the last 19,000 requests? Is 99.9997368% agreement still too little agreement, and too much oversight, for the president? Apparently so. The document states that the "President has determined that the speed and agility required to to carry out the NSA activities successfully could not have been achieved under FISA." Aside from a clear admission that the NSA activity was not within FISA, this is insane. Again I repeat, 99.9997368% approval of warrant requests, requests can be made after surveillance has already begun, and FISA contains provisions for warrantless wiretaps in certain circumstances. And still FISA was too cumbersome?

The document also repeatedly cites the opinions of Attorneys-General to make its case. FISA is a law passed by Congress, and this attorney general can not overrule it - nor can past attorneys-general.

In short, this document confirms many of our worst fears. This president is convinced he has the authority to do whatever he wants, whenever he wants, regardless of the law, because we are at war.


"Let me be as clear as I can be: President Bush believes if al Qaeda is calling somebody in America, it is in our national security interests to know who they're calling and why," said Deputy White House Chief of Staff Karl Rove, Bush's top political adviser.

Well, let me be as clear as I can be. I agree completely with that statement. It also has absolutely nothing to do with this controversy.

This is not about terrorism, war, or safety. It is much simpler than that. It is about whether are to govern ourselves, or whether we are to be governed by an all-powerful commander in chief. It is inherently dangerous - much more dangerous than anything the terrorists can accomplish.
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