Monday, December 19, 2005

Spygate myths 101:

Let us consider several myths in connection with the defense of the administration regarding authorization of the NSA to spy on American citizens.

Myth 1: The spying was conducted only on citizens known to have connections with terrorist organizations.

My rebuttal to this myth can be found here . To paraphrase that rebuttal, the administration has already proven very inept at being able to accurately identify those involved with terrorism. There are several examples listed in the post of mistaken identification of terrorism suspects. One case I did not mention but I find extremely telling is the FAA's no fly list. This list of individuals who are given enhanced security clearance when trying to fly from American airports is notoriously inaccurate. One of the most startling examples of this list being flat wrong is that Senator Ted Kennedy made the list and it took him and his staff more than three weeks to have his name taken off. In one case the Senator was unable to board a flight until a supervisor could identify him. So if the administration added Senator Kennedy to the no fly list because of supposed connections with terrorists, one must wonder if they were spying on his calls...

Busting myth 1 cliff note style: If this administration can not accurately identify people with terrorist affiliations, they can not claim they were only spying on Americans with terrorist connections. (duh)
Myth 2: The administration had congressional oversight of the program.

The administration did consult with congressional leaders several times regarding the program. But these consultations were classified and the members who were briefed were legally prohibited from publicizing the existence of the program. If they had concerns they were not able to voice them except in private communication. Senator Rockefeller wrote a letter to vice president Cheney that expressed strong concerns to the administration over this program. Representative Nancy Pelosi also claims she expressed strong concerns during the briefings. Senator Harry Reid in an email to supporters says he was notified once earlier this year, but the administration did not seek his advice or consent, and key details regarding the program were not divulged. In both Senator Reid and Senator Rockefellers cases it is noteworthy that they comment on the fact that they were forbidden to discuss the program even with their staff. And this is congressional oversight?

Busting myth 2 cliff note style: The congressional briefings can hardly be considered congressional oversight, since the congress members briefed were not able to check the program even if they disagreed with it.
Myth 3: The president has the constitutional and statutory authority to spy on American citizens without judicial review.

In the press conference given by the president Monday, as well as the press conference by attorney general Alberto Gonzalez , this claim has been repeatedly asserted. Yet to this point there has not been one example I know of where the specific language is cited to justify this program. Rather the constitutional clause the administration rests their case upon seems to, if anything, make the case that the spy program is an impeachable offense.

In the presidents news conference he cites article II of the constitution. That article includes the oath sworn by the president when they enter office, and this oath is the crux of the administrations argument:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Rather than permitting unconstitutional activity, this oath expressly prohibits presidential behavior that is unconstitutional. One would be hard pressed to argue that one could preserve and protect the constitution by using unconstitutional methods. The real constitutional issue is brought by the 4th amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Quite clearly a warrant demonstrating that the taking of evidence is reasonable is needed in order for a person to not be secure in their person, house, or effects. (I think effects here is really founding father genius by foretelling cell phones and email!) Quite clearly the president does not feel this constitutional obligation is worth protecting or preserving.

Thus the only way around this constitutional (non) conundrum is to justify the unconstitutional intrusion with a statute of some sort. (Which statute if ever created will be struck down by any judge to the left of Atilla the Hun as unconstitutional... but I digress) The administration therefore cites the resolution passed by congress on September 14, 2001 that authorized the president to use any force necessary to fight the war on terror. A careful reading of this resolution however in no way gives the president any constitutional power other than the right to use force to combat terrorism.

The administration also is fond of using the FISA (foreign intelligence surveillance act) to justify the presidents ability to spy on American citizens. Yet that act specifically established a secret court to grant warrants for surveillance of American citizens. How can the administration claim FISA protection when they are not using the FISA procedures to authorize the spying? The simple answer is they can not.

Busting myth 3 cliff note style: Read me the language that allows the president to disregard the fourth amendment. (This could get complicated however, as you probably will need to explain to whoever you are busting the myths with that the language they fumble around for actually means the president must obtain a warrant to spy on American citizens.)
Myth 4: Exposing the NSA spy program has harmed America.

This really is simple logic which will not involve me linking you around the web. The FISA law noted above is not classified. So any citizen with terrorist connections who cared would be well aware that their calls could be monitored, without them realizing it on a case by case basis, with a FISA warrant. Indeed it is even possible for the spying to take place before the FISA warrant is granted, so long as the administration gets the warrant at some point. FISA warrants have been an issue for quite some time with civil libertarians so this is hardly a national security type secret. The ease with which the warrants are obtained basically makes the process a rubber stamp for the administration. The ability to spy on suspected terrorists was not revealed by the revelation of spygate. The presidents authorization of illegal spying is all thats revealed.

Busting myth 4 cliff note style: The harm to America in this case stems from having the president run amok over the constitution, not having the terrorists re-learn something they already knew.

This post is turning into a book, and I try not to get so long winded. There are several other myths being promulgated by the white house which mayhaps I will tackle in a future post. In the meantime just remember this final myth. George Bush was elected president of the United States of America. I'm not going into the whole Florida/Ohio vote debacle here. What I'm saying is that as far as George is concerned, he was elected king.

Good stuff as per usual.

We shouldn't let Congress off the hook so easily just because, the consultations with them were classified. Hopefully, the Democrat leadership at least attempted a classified hearing and were shutdown by the Republican majority. Although, they may have seen a block by the Republican majority as eminent and thus refusing to try.

I say that FISA is in some regards Unconstitutional. However, I wanted to reiterate Att. Gen. Gonzales rationale (shown in the briefing you link to here) for claiming FISA protections:

Under FISA a court order must be obtained prior to engaging in surveillance. It can also be done retroactively as mentioned by the reporter in the briefing that you have linked. Retroactively meaning that you can engage in surveillance and then within 72 hrs. consult with a judge for approval. This is to address issues of "agility" and emergency. This still would provide judicial oversight. The questioner asked Gonzales why this wasn't simply done retroactively if speed was of the essence. His reply was simply that they didn't have to.

FISA stipulates that a court order is necessary unless "otherwise authorized by statute or by Congress." The Bush administration legal team will assert that the Authorization to Use Force given to the President after September 11th by Congress satisfies this.

Under the Congressional Authorization of Force it will be argued that the Bush Administration that they do indeed have legal grounds for Intelligence activities based on the Hamdi ruling. Hamdi was a US citizen detained as a war criminal. The Supreme Court ruled that the detention of Hamdi was consistent with the Authorization of Force and in line with the War Powers afforded to the President. From this Gonzales draws the grounds for Intelligence gathering involving a US citizen.

This is still not in line with the Constitution. Although, the administration will try to lay this at the feet of Congress to escape scrutiny. Congress wrote FISA, not them. According to FISA, a court order is necessary unless *otherwise authorized by statute or by Congress*. This is key. In an unconstitutional manner power judicial oversight is removed and power is shifted from the Judicial Branch to the Legislative Branch.
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