We can indict a ham sandwich'' is the proud saying among some federal prosecutors. Add the words of informants, and it is possible to fabricate the basis of a warrant against anyone at any time.
That says a lot!
Posted on 08/18/2006 5:20:12 PM PDT by Dubya
DETROIT — The first — but surely not the last — legal ruling over the Bush administration's warrantless surveillance program was unequivocal: According to the Constitution, it should not exist. ADVERTISEMENT
U.S. District Judge Anna Diggs Taylor ruled Thursday that the National Security Agency program violates the rights to free speech and privacy as well as the separation of powers, and said the administration appeared to argue that the president has the "inherent power" to violate laws.
"We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution," Taylor wrote.
"There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution, she added."
Administration officials strongly disagreed with the ruling and said they would seek a reversal by the 6th U.S. Circuit Court of Appeals in Cincinnati. They say the program is a key tool for fighting terrorism.
"We're going to do everything we can do in the courts to allow this program to continue," Attorney General Alberto Gonzales said at a news conference in Washington.
White House press secretary Tony Snow said the Bush administration "couldn't disagree more with this ruling."
He said the program carefully targets communications of suspected terrorists and "has helped stop terrorist attacks and saved American lives."
Taylor ordered an immediate halt to the program, but the government said it would ask for a stay of that order pending appeal. The American Civil Liberties Union, which brought the suit, said it would oppose a stay but agreed to delay enforcement of the injunction until Taylor hears arguments Sept. 7.
The ACLU filed the lawsuit in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors international phone calls and e-mails to or from the U.S. involving people the government suspects have terrorist links.
The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists.
The government argued that the NSA program is well within the president's authority but said proving that would require revealing state secrets.
The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule. The adminstration has decried leaks that led to a New York Times report about the existence of the program last year.
Taylor, a Carter appointee, agreed, writing that "Plaintiffs need no additional facts" to establish their claims.
"It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," she wrote. "The three separate branches of government were developed as a check and balance for one another."
Administration officials said the program is essential to national security. The Justice Department said it "is lawful and protects civil liberties."
In Washington, Republicans expressed hope that the decision would be overturned, while Democrats praised the ruling.
ACLU Executive Director Anthony Romero called Taylor's opinion "another nail in the coffin in the Bush administration's legal strategy in the war on terror."
"At its core, today's ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that's necessary to our democracy," he told reporters.
Bush is keeping the terrorists out of your living room. Whatever he is doing is working, and the only "rights" being violated are those of the terrorists and terrorist suspects.
If that is the case, then the administration should have no problem presenting a little bit of evidence to a secret FISA court.
Bush has no obligation to yield to some unaccountable judge. When these FISA jacklegs started turning down FISA requests, he was right to go outside the process.
The President is responsible for the security of the country, not a judge like Diggs-Taylor.
It was nine years between Terrorist attacks on the WTC. Do you credit Clinton with "keeping the terrorists out of your living room" for those nine years? The rest of your post is speculation.
Well, that's the question, isn't it?
The case law has yet to be settled.
From my (admittedly layman's) point of view, the Bush administration is far too enamored of executive power. Which could set a dangerous precedent (especially if we accept a state of perpetual war)
because you essentially believe the executive has no inate constitutional powers. if he can't tape foreign phone calls, and he can't hold prisoners outside the US without having US trial rights granted to them, and if he can't interpret the geneva agreement to deny captured terrorists POW rights - exactly what powers DOES the President have?
yet, you are willing to cede ALL of these powers, and anything else I imagine, to 5 lawyers on the SCOTUS - and label it "constitutional".
Clinton didn't do anything.
Had he surveilled suspected terrorists here in the United States, by wiretapping, he might have stopped 9/11.
yeah sure - the legislative and judicial branches - are equipped to prosecute a war. let's strip away ALL executive powers then, who needs any of them.
After 20 years of executive power cowering in fear of Congress and the courts.
It is the president who is responsible for national security. With a big-mouthed Congress running in front of any camera it can find, is it any surprise that Bush wants to keep them out of the loop in matters of personal and financial surveillance of terrorist activities?
Good point. Luckily, the FISA Court is not part of Congress.
Just went to see the WTC movie. Everyone should be forced to watch that movie once per year. Then we wouldn't be worrying about wiretaps and such.
A look back into history to see the conservative reaction to Clinton"s terror Bill after the first WTC bombing is enlightening...
GUN OWNERS OF AMERICA
8001 Forbes Place / Suite 102 / Springfield, VA 22151 / (703) 321-8585 / FAX (703) 321-8408
For Immediate Release
Contact: Kathleen Gennaro
December 6, 1995
(703)321-8585
GOA Opposes Government Terror Bills
(Washington, D.C.) -- Gun Owners of America today joined several organizations in opposing the existing terror bills in the Congress. The groups included such diverse organizations as the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and the National Rifle Association.
"Representative Henry Hyde, sponsor of the House terrorism bill, has become the Mad Bomber of the Bill of Rights," said GOA Executive Director Larry Pratt. "His bill will give the Mark Fuhrman's of the world greater power and will ignore Constitutional safeguards.
"Fuhrman displayed his contempt for the Constitution during the O.J. Simpson trial. We don't need to give his kind more power in the name of fighting terrorism," Pratt said.
The House of Representatives is expected to vote on H.R. 1710 next week. The coalition to reform law enforcement is sending a letter to House Speaker Newt Gingrich today, expressing the group's opposition to any bill containing the following six points:
* Defining terrorism so broadly that even a person like Bernie Goetz, who used a gun in self-defense, could be prosecuted as a "terrorist";
* Involvement of the military in law enforcement;
* Depriving people of liberty based on secret evidence;
* Designating disfavored groups as "terrorist" organizations;
* FBI investigating individuals without evidence of criminality; and,
* Government wiretapping and ignoring the exclusionary rule.
We should think always that every new law may be enforced by our worst enemies. Think about maybe a Hillary Clinton enforcing these laws to 'investigate' conservatives.
This was National Reviews stance on Clinton's anti terror bill....
However, the measures designed to combat domestic terrorism are dangerous.
All of them are terribly useful as weapons against domestic political enemies. The requirement for government access keys to private computer cryptography, the loosened guidelines for wiretapping individuals, the increased access to hotel, travel, and even bank records -- all this portends trouble.
snip
And if the Administration gets its way, the issuance of warrants for wiretapping, infiltration, search of bank and travel records, and physical searches will follow the precedent of the Foreign Intelligence Surveillance Act of 1978 and be lodged in a court that holds secret, ex parte proceedings.
Have we seen this sort of thing before? Not quite. Until the 1960s the attorney general publicly listed Communist and other subversive organizations allied with foreign enemies. The U.S. Government excluded the members of these organizations from public employment, maintained surveillance on them, and warned other Americans away from them. Occasionally the FBI sowed discord among them. During this period the reasonable answer to civil libertarians' reasonable objections was that Communists had stepped outside the full protection of the laws by allying themselves with a foreign enemy. The existence of the Soviet Union imposed on us the necessity of criminalizing domestic Communism. After the Soviet Union's disappearance, however, it would be well-nigh impossible to square official discrimination against Communists with the American legal tradition. Recall that Abraham Lincoln suspended habeas corpus and violated property rights only when enemy armies were in control of 11 states.
President Clinton, however, is making a clean break with the American tradition. He is effectively re-establishing the attorney general's list. Moreover, the reach of law enforcement is so much broader and harsher than it was in the 1950s that what it can now do to people amounts to war. Today government makes so many rules with so many details (202 volumes, 132,000 pages) that almost anybody can be accused of some violation. ``We can indict a ham sandwich'' is the proud saying among some federal prosecutors. Add the words of informants, and it is possible to fabricate the basis of a warrant against anyone at any time.
Furthermore, the Supreme Court's general caution to the contrary notwithstanding, a search warrant today permits armed, masked agents to burst in with guns drawn, and to fire at the discretion of whoever is making the rules that day. And the practice of ``civil forfeiture'' allows officials to seize your computer, your cash, your house, or your farm's tractor without ever filing a charge. These are not ``paranoid fantasies.'' This is the legacy of almost thirty years of the federalization and militarization of American law enforcement.
What will happen if this panoply of weapons is put to the service of political passions and bureaucratic self-interest? President Clinton has brushed aside such considerations as impediments to the ``war on terrorism.'' But he is terribly mistaken. The first objective in any battle against domestic terrorism must be to seal it off from domestic politics as completely as possible. Whether or not those who set bombs or fires are connected to the great issues of the day, they are mere criminals and should be treated as such.
To move away from the principle that the only people responsible for a crime are the ones who committed it -- and to involve whole political parties and social categories as enemies in blood quarrels with the state -- is the first step down a well-worn path to civil war.
Republican relativism:
Congressional Republicans were against wiretapping, before they were for it. To posit that a president's power waxes and wanes according to his party affiliation is to engage in moral relativism, an immoral act that Conservatives in America have long claimed was only practised by the left-side of the Political BiPolarity.
Still, many of the same Republican legislators who defend Bush's rampant wiretapping, were adamantly opposed to any expansion of wiretapping during the the Clinton Presidency.
The following quotations are but a few of the total, taken from the 1996 Congressional Record, as a divided Congress ineffectually attempted to help the government stop acts of terrorism, after the first bombing of the World Trade Tower, and the Bombing in Oklahoma City.
Congressional Record: March 13, 1996 (House) - Pages H2129-H2190
Government Printing Office's Online Records: DOCID:cr13mr96-94]
Comprehensive Antiterrorism Act of 1995
Dan Burton (R-Ind): Mr. Chairman, this is one of our major concerns among the groups called the conservative action team in the House. I just want to make absolutely clear to all of our colleagues what the gentleman is saying right now, and I want them to understand it. This is going to expand the ability for people to be wiretapped way beyond where it is right now.
Mr. Barr: Mr. Chairman, the gentleman is correct.
Dan Burton (R-Ind): So any citizen of the United States might be subject to this good-faith exception which would allow the Government to find something out about them inadvertently through a wiretap that could cause them unbelievable problems.
Mr. Barr: The gentleman is correct.
Dan Burton (R-Ind): I think my colleagues ought to think long and hard about that. One of the things we are concerned about is expanding the Government's ability to spy on or to find out everything about any individual in this country. Expanding this wiretap provision, I think, is something that is very, very disconcerting to me and many of my colleagues.
Congressional Record: April 18, 1996 (House) - Pages H3605-H3618
[Government Printing Office's Online Records: DOCID:cr18ap96-43]
Conference Report on s. 735, Antiterrorism and Effective Death Penalty Act of 1996
Dan Burton (R-Ind): If the Government of the United States can through, quote-unquote, good faith tap our phones and intrude into our lives, they violate our constitutional liberties, and that is something that we should not tolerate, and that is in section 305 and section 307. The FBI can gain access to individual phone billing records without a subpoena or a court order. Once again I believe that infringes upon our constitutional rights and liberties, and while we are trying to deal with terrorism, and we should, we should not violate our constitutional rights and liberties, and I believe this bill in its present form does. And that is why I think the Barr amendment is absolutely essential if we are going to pass something that will really deal with terrorism crime, but protect the liberties that we fought so hard for in the Revolutionary War.
Wayne Allard (R-Colo) Mr. Speaker, I rise in support of this conference report.
Today I am going to vote in favor of S. 735, the Terrorism Prevention Act conference report. As I stated throughout debate on the antiterrorism bill I have had concerns that the bill might be used as a vehicle to expand Federal power over law-abiding citizens. This was my reason for opposing the original House bill, I was concerned that a House-Senate conference would add a number of undesirable Senate provisions. A number of bad ideas were in play, including expansive Federal wiretapping authority, included in the Senate bill, excessive power for certain Federal law enforcement agencies, and excessive spending. I have followed the conference closely, and I am now satisfied that the civil liberties of law-abiding citizens are protected, and that Federal authority is appropriately restricted. The bill focuses on international terrorist organizations, a matter of Federal jurisdiction.
Congressional Record: April 17, 1996 (Senate) - Pages S3454-S3478
[DOCID:cr17ap96-153]
Terrorism prevention Act--Conference Report
Orrin Hatch: Mr. President, again, in the real world, in the case of the Unabomber or a terrorist where there is a real threat or an immediate concern, you do not need this provision to get an emergency wiretap. All the Senator's motion does is expand the number of crimes that would trigger the wiretap statute. This amendment was offered during the Senate debate. It was defeated. It was not a part of the Senate bill. It was not a part of the House bill. It is not a part of our conference report, and rightly so. I oppose this provision that could expand emergency wiretap authority to permit the Government to begin a wiretap prior to obtaining court approval in a greater range of cases than the law presently allows. I personally find this proposal troubling. I am concerned that this provision, if enacted, would unnecessarily broaden emergency wiretap authority. Under current law, such authority exists when life is in danger, when the national security is threatened, or when an organized crime conspiracy is involved. In the real world, we do not need this amendment to get emergency wiretap authority, and that is a fact.
Let me also say that this authority is constrained by a requirement that surveillance be approved by the Court within 48 hours, but that authority already exists in those areas I have addressed.
Congressional Record: August 2, 1996 (House) - Pages H9877-H9886
[DOCID:cr02au96-151]
Providing for Consideration of a Certain Motion to Suspend the Rules
Porter Goss (R-Fla): Mr. Speaker, this effort comes in the wake of three horrible tragedies: The bombing of a military installation in Saudi Arabia, the loss of TWA flight 800 out of New York's JFK Airport, and the recent pipe bomb explosion in Atlanta at the Olympics. While we haven't had time to thoroughly assess these tragedies and the effectiveness of the antiterrorism law Congress passed earlier this year, these attacks tell us that our society remains vulnerable to terrorism. Unfortunately, terrorism is a fact of life. In response to recent events, a series of proposals were offered to solve the problem--some with merit, and some that could cause more problems than they might solve by cutting deeply--and unnecessarily--into the constitutional freedoms of American citizens. I include in that category certain proposals for expanded wiretapping authority for Federal law enforcement. This is a dangerous proposition--and one that would be ceding victory to terrorists, whose goal is to disrupt our society, create anxiety and constrain our freedoms. That's the way terrorism attacks a free open society. Let me be clear, this bill does not--I repeat, does not--expand wiretapping authority. In fact, it goes the other direction, strengthening penalties for misuse of Government's existing authority. That's good news for all Americans--especially the many southwest Floridians who urged us not to succumb to the pressure to diminish our liberties. For this we owe our thanks to our able policy committee chairman, Chris Cox.
[. . .]
Charles Schumer (D-NY): Mr. Speaker, if we want to know why people are sick and fed up with Congress, look at this debate. On Sunday the President asked and all the law enforcement people asked for two things, the top two things they needed to fight terrorism. One, taggants. Identifiers in explosives, particularly black power and smokeless; and two, multipoint wiretaps. Neither are in this bill.
Neither are in this bill because the NRA did not want it. Neither are in this bill because forces on the extreme dictated what the Republican Party was going to put forward.
This bill is a sham. It does a few good things, but it does not give law enforcement what they want, plain and simple. We all know that.
All the other provisions are an elaborate smokescreen to hide what everyone in this Chamber knows: that the majority party is not doing what the FBI, the ATF and all the other law enforcement experts have asked for. Mr. Kallstrom, long before this conference, the FBI man in the lead at TWA, said please give us multipoint wiretaps. The majority says no.
Mr. Freeh, the head of the FBI, says please give us taggants so we can trace the kind of pipe bomb that blew up at the Olympics. The majority says no.
And last night, when we had agreement from the President, the Republican leaders of the Senate, the Democratic leaders of the Senate and the Democratic side of the House, only the Republican majority in the House refused to go along.
Members, this bill is what should make us ashamed of our inability to pull together and fight terrorism.
[. . .]
Joe Moakley (D-Mass): Over a year ago President Clinton started the whole process by coming up with an antiterrorism proposal and beginning discussions with Republicans. When negotiations broke down, House Republicans wrote this bill on their own, under cover of night, and they left out one of the most important parts of President Clinton's bill--the provisions granting wiretapping authority.
Because Mr. Speaker, rather than just punishing terrorists, we need to prevent terrorism. And the one thing law enforcement officers have asked for time and again, is wiretapping authority.
But my Republican colleagues refuse to give it to them.
Instead, Mr. Speaker, my Republican colleagues have decided to make even the issue of terrorism political.
I would at least expect my Republican colleagues to allow us to offer amendments to this bill, but apparently they will not.
Mr. Speaker, as today's Washington Post reports, this important antiterrorism legislation has been slowed down because of conservative Republicans' refusal to allow law enforcement officers the wiretapping capability they ask for and President Clinton and the Democrats are trying to give them.
As far as I am concerned, Mr. Speaker, when it comes to combating terrorism, we should give law enforcement officers any and every reasonable tool they need, including wiretapping authority.
[. . .]
Nita Lowey (D-NY): Mr. Speaker, I rise in strong opposition to the bill, and on behalf of a constituent whose daughter was lost in TWA flight 800, because this bill is an outrage and a disgrace to that family, and an outrage and a disgrace to this body.
This bill should include both taggants and enhanced wiretapping provisions. Instead, it has neither. Law enforcement has repeatedly asked for these critical tools to combat terrorism. Yet this Congress has repeatedly denied them.
When, Mr. Speaker, when are we going to say enough is enough? How many bombs have to go off? How many daughters do we have to lose? How many Americans have to die before the GOP leadership will give us a tough antiterrorism bill?
Once again we had an opportunity today to protect Americans from terrorism, and once again the Republican leadership took its marching orders from the National Rifle Association and gutted the bill. The NRA opposes taggants because it says they will be placed in the types of gunpowder that hunters and marksmen use. Taggants will also be placed in the gunpowder that terrorists use in bombs like the ones that killed and injured more than 100 in Atlanta last weekend.
The taggants in these bombs will lead us to the terrorists who planted them. Today, this Congress has hoisted the white flag of surrender in the fight against terrorism. It is a repeat of the last time we considered terrorism legislation, when the Republican leadership talked tough and acted weak. Those responsible for weakening this bill yet again should be ashamed of themselves, because they have put Americans at risk.
Chris Cox (R-Calif.): The truth is that the administration wanted wiretapping language in this bill and, as the Washington Post points out in its editorial today, we have not included it because caution and deliberation are necessary on that topic. But we have included everything else that they wanted.
[. . .]
Chris Cox: of California. Mr. Speaker, I thank the gentleman from Florida for yielding.
What we just heard the gentleman from New York tell us is essentially true; that if we had included in this bill everything that is before us and one other thing, and that is multipoint and warrantless wiretaps, then there would have been agreement. And the truth is that because wiretaps are not in this bill, the gentleman is disappointed.
I have to say that this gentleman is disappointed because there is not a good faith exception to the exclusionary rule in this bill, something that would have helped us in the Oklahoma City prosecution. We passed it through this House five times. It ought to be acceptable to our body, but it was objected to by the Senate.
Now, imagine our predicament if we had brought this bill with everything in it; the only difference was it also had warrantless wiretaps and multipoint wiretaps. That is a very serious issue I think Members deserve more time to consider. And for that reason, above all, it is not put in a bill that is coming to us under a suspension of the rules that we have not had an opportunity to read.
20 well-deserved years, after the abuses of Watergate and the folly of Vietnam.
And judges like the arrogant Royce Lamberth, who is currently the subject of an ethics complaint, likely denied warrants for the sheer exercise of his own power and authority.
Bush was elected to protect the country. If he doesn't protect the country, he's gone. In war time, a President cannot be obstructed by some judge on a power trip.
Congress obviously approves of what Bush is doing because it is in no hurry to stop him.
for the 5 millionth time - these are intercepts of overseas phone calls.
and the comments from the republicans you posted - who, for example, were against multi-point wiretaps (with warrants) - they were idiots. the idea that you need a warrant for each and every phone that a person might use, in an era where you can walk into best buy and walk out with an activated cell phone for $20 - is stupid.
That's why it's a slippery slope (If Kerry were prez and the judge were John Roberts, I'd go with the judge)...
Let's hope there's a damned fast-track appeal in this case.
And because Congress curtailed executive authority, Congress became the caretaker for national security.
That's not in the Legislative Branch's job description. Any body that has to allow 435 people to speak is going to be too slow to react.
Actually yes I am. There is a reason for checks and balances.
What's the problem? If the SCOTUS deems it unconstitutional then so be it. If they deem it within the law then O.K..
I mean there is precedent to deny unlimited power.
http://en.wikipedia.org/wiki/Magna_carta
Then of course:
http://en.wikipedia.org/wiki/The_Constitution
We could of course ignore these and rely on:
www.namethedictatorship.com
no, that's not how our constitution works. each branch has powers.
and the idea that these foreign intercepts represent "umlimited" power for the executive - is nuts. they have been going on for decades.
We can indict a ham sandwich'' is the proud saying among some federal prosecutors. Add the words of informants, and it is possible to fabricate the basis of a warrant against anyone at any time.
That says a lot!
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