-----Original Message-----
From: owner-IFFORUM@... [mailto:owner-IFFORUM@...]On Behalf Of Anton Kunckle
Sent: Tuesday, December 20, 2005 2:24 PM
To: Intellectual Freedom Forum
Subject: [IFFORUM:5191] Re: No President is Above the Law

And this:

 

MORE ON THE WHOLE NSA STORY: I don't have much to add on the legal analysis linked to earlier, though I still wonder why, exactly, the Administration didn't just go through FISA. Noah Schachtman continues to pursue the technological theory -- that the methodology being used didn't fit under the FISA umbrella.

Independent from the question of whether this is legal, of course, is the separate charge that the program represents a Bushitlerian departure from prior standards. That seems to be hard to maintain -- in many ways, Bush's policies are merely a continuation of those under Clinton, only with somewhat more vigor post 9/11. If you want to look back on the Clinton Administration as some sort of civil-liberties golden age, you probably shouldn't read this report from the CATO Institute entitled "Dereliction of Duty: The Constitutional Record of President Clinton." But here's a relevant excerpt:

The Clinton administration has repeatedly attempted to play down the significance of the warrant clause. In fact, President Clinton has asserted the power to conduct warrantless searches, warrantless drug testing of public school students, and warrantless wiretapping.

The Clinton administration claims that it can bypass the warrant clause for "national security" purposes. In July 1994 Deputy Attorney General Jamie S. Gorelick told the House Select Committee on Intelligence that the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes." [51] According to Gorelick, the president (or his attorney general) need only satisfy himself that an American is working in conjunction with a foreign power before a search can take place. . . .

It is unclear why the president made warrantless roving wiretaps a priority matter since judges routinely approve wiretap applications by federal prosecutors. According to a 1995 report by the Administrative Office of U.S. Courts, it had been years since a federal district court turned down a prosecutor's request for a wiretap order. [68] President Clinton is apparently seeking to free his administration from any potential judicial interference with its wiretapping plans. There is a problem, of course, with the power that the president desires: it is precisely the sort of unchecked power that the Fourth Amendment's warrant clause was designed to curb. As the Supreme Court noted in Katz v. United States (1967), the judicial procedure of antecedent justification before a neutral magistrate is a "constitutional precondition," not only to the search of a home, but also to eavesdropping on private conversations within the home. [69]

President Clinton also lobbied for and signed the Orwellian Communications Assistance for Law Enforcement Act, which is forcing every telephone company in America to retrofit its phone lines and networks so that they will be more accessible to police wiretaps.

Whether this view is right or not is a separate question from the easy-to-refute claim that it's an entirely unprecedented creation of the power-mad Bushitler Administration. It's odd, then, that it's the easy-to-refute claim that's being pushed.

http://instapundit.com/archives/027613.php

 

On 12/20/05, andesan@... <andesan@...> wrote:

I am probably preaching to the choir, for the most part, on this listserv, but I think a few things need to be clarified.  First of all, domestic surveillance of American citizens requires probable cause and a warrant, or at the very least a National Security Letter issued by a FISA Court.  Second, the proper agency to conduct surveillance, when authorized, is the FBI.  It is my understanding that the NSA, like the CIA, has no mandate for operations involving American citizens in the United States.  If this is not corrrect I would appreciate it if someone would correct me and cite the governing code or regulation.  Finally, if his eminence King George has broken the law he needs to be held accountable.  Let's not let this be swept under the carpet.  Letters and phone calls to Senators and Congressmen are in order.  The secret FISA Court itself, in my opinion, borders on the unconstitutional, along with the Patriot Act.  The nightmarish prospect of three more years of George W
. as president can be ameliorated by opposing the questionable activities of his administration, all within legal channels.  The ACLU, ALAOIF, etc., should be used to keep the pressure on.  I can't imagine a greater threat to our civil liberties than the unilateral actions the president appears to have taken in spying on American citizens without the required legal authorization.  The Fourth Amendment was still good law the last time I checked.

Frank Anderton
Norman, Oklahoma

----- Original Message -----
From: Mary Ann Meyers <ljmmam@...>
Date: Monday, December 19, 2005 5:07 pm
Subject: [IFFORUM:5167] No President is Above the Law

> December 19, 2005 Senator Byrd: No President is Above the Law
>
> byrd2006.com
> Senator Byrd
>
> Americans have been stunned at the recent news of the abuses of
> power by an
> overzealous President.  It has become apparent that this
> Administration has
> engaged in a consistent and unrelenting pattern of abuse against our
> Country's law-abiding citizens, and against our Constitution.
>
> We have been stunned to hear reports about the Pentagon gathering
> information and creating databases to spy on ordinary Americans
> whose only
> sin is choose to exercise their First Amendment right to peaceably
> assemble.Those Americans who choose to question the
> Administration's flawed policy in
> Iraq are labeled by this Administration as "domestic terrorists."
>
> We now know that the F.B.I.'s use of National Security Letters on
> Americancitizens has increased one hundred fold, requiring tens of
> thousands of
> individuals to turn over personal information and records.  These
> lettersare issued without prior judicial review, and provide no
> real means for an
> individual to challenge a permanent gag order.
>
> Through news reports, we have been shocked to learn of the CIA's
> practice of
> rendition, and the so-called "black sites," secret locations in
> foreigncountries, where abuse and interrogation have been exported,
> to escape the
> reach of U.S . laws protecting against human rights abuses.
>
> 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
> protectingthe 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
> flimsyclaim that he has such authority because we are at war.  The
> executiveorder, 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
> soilwithout 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
> canreview 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
> balancethe government's role in fighting the war on terror with the
> FourthAmendment rights afforded to each and every American.
>
> The American public is given vague and empty assurances by the
> Presidentthat 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
> SurveillanceAct, 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
> insinuatethat 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
> expandedFISA 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
> theremoval of the pre-9/11 "wall" between intelligence officials
> and law
> enforcement was significant in that it "opened up new opportunities
> forcooperative 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
> searchesare 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
> Presidentthe 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
> foreigncountries 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
> instillin 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
> apprehensionabout 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
> answeringthe same questions simply because it might assert some
> kind of "executive
> privilege" in order to avoid further embarrassment.
>
> The practice of domestic spying on citizens should halt immediately.
> Oversight hearings need to be conducted.  Judicial action may be in
> order.We need to finally be given answers to our questions:  where
> is the
> constitutional and statutory authority for spying on American
> citizens, what
> is the content of these classified legal opinions asserting there
> is a
> legality in this criminal usurpation of rights, who is responsible
> for this
> dangerous and unconstitutional policy, and how many American
> citizens' lives
> have been unknowingly affected?
>
> ###
> http://www.byrd2006.com/news/news.cfm?ID=40
>
>
>
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