Dem Presidents spied on Martin Luther King

[fossten]

Chairman Roberts Reacts to DNC Chairman Howard Dean’s Egregious Comments on Terrorist Surveillance

WASHINGTON, DC – U.S. Senator Pat Roberts, Chairman of the Senate Select Committee on Intelligence, today sent the following letter to Democratic National Committee Chairman Howard Dean:

“I was recently apprised of your assessment of the President’s terrorist surveillance program – an “early warning” capability to intercept the international communications of al Qaeda terrorists to and from persons within the United States. With respect to this important program, you stated, “President Bush’s secret program to spy on the American people reminds Americans of the abuse of power during the dark days of President Nixon and Vice President Spiro Agnew.” As Chairman of the Select Committee on Intelligence, I find your statements to be irrational and irresponsible.

“Any suggestion that a program designed to track the movement, locations, plans, or intentions of our enemy – particularly those that have infiltrated our borders – is equivalent to abusive domestic surveillance of the past is ludicrous. When Presidents John F. Kennedy and Lyndon B. Johnson approved the electronic surveillance of Martin Luther King, those Presidents were targeting American citizens based on activities protected by the First Amendment. When President Richard Nixon used warrantless wiretaps, they were not directed at enemies that had attacked the United States and killed thousands of Americans.

“I believe Americans understand that the careful and targeted program authorized by President Bush has no relation to the abuses of the past. Indeed, its closest antecedent is the direction of President Franklin D. Roosevelt to Attorney General Robert H. Jackson on the eve of World War II. With war looming and reports of lurking enemy saboteurs, President Roosevelt ordered the use of domestic electronic surveillance to target “persons suspected of subversive activities.” As President Roosevelt noted, “It is too late to do anything about it after sabotage, assassinations and ‘fifth column’ activities are completed.” Significantly, President Roosevelt’s direction was issued despite a statute (Section 605 of the Communications Act of 1934) and Supreme Court precedent (United States v. Nardone, 302 U.S. 379 (1937)) that prohibited such wiretapping.

“When President Bush exercised his constitutional authority and responsibility as Commander-in-Chief to target international communications between potential terrorists within this country and al Qaeda members overseas, he recognized, just like President Roosevelt, that after a terrorist attack occurs “t is too late.” Our nation had been attacked on September 11, 2001, by foreign enemies. We were, and are still, at war with an enemy that Congress identified in an Authorization for Use of Military Force (Pub. L. No. 107-40 (Sept. 18, 2001)). Much of the war against al Qaeda is being fought overseas – Afghanistan, Pakistan, Iraq. But the war against terrorism is not confined to foreign lands. The war against terrorism is being fought every day in our own backyard. America is a battlefield.

“In peacetime and especially when our nation is at war, our leaders, including the chairmen of our political parties, should be more careful and better informed before they criticize the intelligence programs that protect our nation. Vibrant debate is important in our free society, but that debate should be serious and rational, especially where national security is concerned. Too many are looking at national security issues through partisan lenses. I have seen it on the Intelligence Committee for the past three years. Our nation, and the men and women of the military, law enforcement, and the intelligence community, deserve better.”

 

[pbslmo]

Dean Is Right

Dean is right in his comparison of GW Bush to Richard Nixon. The issue "IS NOT" domestic spying! The issue is whether the executive branch adheres to the legal requirement to ensure that any domestic spying is undertaken with appropriate checks and balances. This is the crucial role played with judicial over site. If Bush acted in a manner similar to Nixon, then Bush has abused his presidential power.

Believe it or not, liberals, democrats, progressives, lefties [whatever names you want to call us] live in the real world. WE too suffer the threat of terrorism and are potential targets for terrorist. WE too expect our leaders to lead and be vigilant in the defense of our democracy and national security. But at the same time, we demand that we have a democracy left to defend and not just a secure totalitarian state. It is the erosion of privacy and other rights that motivate criticism of the Bush administration. The president has the tools to conduct legal domestic surveillance of American citizens. Democrats, Republicans and Independents have the responsibility to scrutinize and even criticize when a president wields those tools carelessly.

 

[RB3]

Or maybe Dean is wrong...

IS THE PRESIDENT “ABOVE THE LAW”? I GUESS IT DEPENDS ON WHO THE PRESIDENT IS [Andy McCarthy]

Several former Clinton administration officials are among the group of “scholars of constitutional law and former government officials” who last week submitted a letter to Congress – posted on the New York Review of Books website – asserting that the Bush administration had “fail[ed] to identify any plausible legal authority” for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978). One of those former Clinton administration officials is Walter Dellinger.

But in 1994, Dellinger was singing a different tune. As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

The opinion is excerpted at some length in a letter being submitted to the Judiciary Committee by my friend Bryan Cunningham, a terrific lawyer in Colorado who worked in both the Clinton and Bush administrations (in the NSA, CIA and DOJ). That letter is now available at the website of Bryan’s lawfirm, www.morgancunningham.net.

The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally). Bryan also illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers – just as FISA does. This, too, is a position the Justice Department has aggressively defended under both Republican and Democrat administrations.

Given the hearing scheduled to begin on Monday, when AG Alberto Gonzales will be testifying before the Senate Judiciary Committee, they entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:


… Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).


Also particularly interesting given the number of Clinton officials who signed the afore-described letter condemning President Bush’s alleged flouting of the FISA wiretap statute, is another opinion issued by the Clinton administration’s OLC – this one in 2000. It’s discussed at length in the Cunningham letter. The Clinton OLC asserted, among other things, that even though the criminal wiretap statute (18 USC Sec 2510 et seq.) purports to limit the executive branch’s ability to disclose wiretap information, the President was free to ignore those statutory provisions where limiting “the access of the President and his aides to information critical to national security or foreign relations . . . would be unconstitutional as applied in those circumstances.”



Or maybe he meant it's alright if it's a Democrat...

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES" [Andy McCarthy]

Imagine the hysteria at the New York Times if the Ashcroft Justice Department had issued formal legal guidance with such a title! Is there any doubt that we'd be hearing horrific reminders of Watergate, "torture memos," and "domestic spying"?

Alas, this is the title of the formal guidance issued by the CLINTON Justice Department in 1994, to which I referred last evening.

The Office of Legal Counsel Opinion, written by then-Assistant Attorney General Walter Dellinger to then-White House Counsel Abner Mikva, is available online . Evidently, presidential power -- including the authority to ignore statutory restrictions that would curtail the President's inherent power to collect foreign intelligence information and protect national security -- was worthy of vigorous defending when it was being wielded by a Democrat.



Or maybe he's just biased....

MORE FROM THE CLINTON OLC ON PRESIDENTIAL AUTHORITY TO IGNORE STATUTES [Andy McCarthy]
Also very worthy of perusing is a 2000 opinion rendered by the Clinton Justice Department, entitled: "SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY." It is available here. It includes these gems:

n extraordinary circumstances electronic surveillance conducted pursuant to Title III may yield information of such importance to national security or foreign relations that the President's constitutional powers will permit disclosure of the information to the intelligence community notwithstanding the restrictions of Title III. . . . [T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because "t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.
Accordingly, law enforcement officers who acquire information vital to national security or foreign relations would be obliged to convey it to the appropriate superiors (e.g., the United States Attorney), who would report it to the Attorney General or Deputy Attorney General, who would in turn report it to the President or his designee. The President (or appropriate officials acting on his behalf, such as the Attorney General) would be authorized to share such crucial information with his executive branch subordinates, including intelligence community officials, to the extent necessary to discharge his constitutional responsibilities. Of course, this constitutional authority should not be exercised as a matter of course. Rather, it should only be exercised in extraordinary circumstances and with great care, and only where disclosure is necessary to the discharge of the President's constitutional responsibilities over matters of national security or foreign affairs. Even then, any contemplated exercise of this authority would necessitate careful consideration of the intrusion on privacy that might result.

Nor do we believe that disclosure of Title III information in these circumstances would violate the Fourth Amendment. Even if a disclosure of Title III information (as distinct from the seizure of the information) could otherwise violate the Fourth Amendment in some circumstances--a matter we do not address--we do not believe that this is an impediment to disclosure of Title III information of serious foreign affairs or national security import to the President. As we noted in our 1997 grand jury memorandum, the Supreme Court has recognized in other contexts that government actions overriding individual rights or interests may be justified where necessary to prevent serious damage to the national security or foreign policy of the United States. See Haig, 453 U.S. at 309 (invoking the principle that the Constitution's guarantees of individual rights do not make it a "suicide pact"); American Communications Ass'n v. Douds, 339 U.S. 382, 408-09 (1950) (to the same effect). We consider it very unlikely that the Court would conclude that the Fourth Amendment prohibits the disclosure of information vital to the national security or foreign relations of the United States.


Of course, if a Republican President -- acting during a shooting-war while American forces are in harm's way against a foreign enemy which has killed nearly 3000 Americans in a domestic attack and constantly announces that it is planning even more devastating strikes -- were to ignore restrictions in a wiretap statute in order to set up an early warning system to prevent domestic attacks, the legal analysis would be different, and such blatantly illegal domestic spying would obviously be grounds for impeachment ... if not execution.

Or maybe Dean is just full of you know what.

Source: National Review

 

[fossten]

Dean is full of you know what, just like you Weenies.

Sen. Roberts: Bush Has Authority for NSA Program

Friday, February 03, 2006

WASHINGTON — Senate Intelligence Committee Chairman Pat Roberts said Friday the Bush administration's domestic spying is within the president's inherent power under the Constitution, and he rejected criticism that Congress was kept in the dark about it.

The program is "legal, necessary and reasonable," the Kansas Republican wrote in a 19-page letter, taking a particularly expansive view of the president's authority for the warrantless surveillance.

"Congress, by statute, cannot extinguish a core constitutional authority of the president," Roberts wrote.

Presidents from George Washington to George W. Bush have intercepted communications to ascertain enemy threats to national security, Roberts told the chairman and ranking Democrat on the Senate Judiciary Committee. Roberts' letter came just three days before that panel was to question Attorney General Alberto Gonzales about the surveillance.

All eight Judiciary Committee Democrats urged Chairman Arlen Specter, R-Pa., to call more top Bush administration in for questioning, including former Attorney General John Ashcroft and ex-Deputy Attorney General Jim Comey. Comey reportedly objected to parts of the program.

Roberts said the Bush administration's notification of just eight members of Congress fulfilled the legal requirement that the legislative branch be kept fully and currently informed.

Roberts has received a dozen briefings on the program; the committee's ranking Democrat, Sen. Jay Rockefeller of West Virginia, half that many.

Rockefeller says he has not received enough detailed information about the surveillance to make a judgment about its legality, and that the full committee should be briefed.

A closed-door hearing is scheduled for Feb. 9, with testimony from Gonzales and Gen. Michael Hayden, the principal deputy director of national intelligence and a former National Security Agency director.

Committee Democrats are pushing for a vote on whether to authorize an investigation. A Feb. 16 business meeting of the committee is scheduled.

With Congress preparing to plunge into a hearing focused exclusively on the warrantless wiretapping, Vice President Dick Cheney said exposing the effort has done "enormous damage to our national security." The New York Times revealed the program's existence in December.

"It, obviously, reveals techniques and sources and methods that are important to try to protect," Cheney said. "It gives information to our enemies about how we go about collecting intelligence against them. It also raises questions in the minds of other intelligence services about whether or not they can work with the United States intelligence service, with our CIA, for example, if we can't keep a secret."

Cheney said he agreed with CIA Director Porter Goss, who told a Senate hearing on Thursday that such leaks are undercutting U.S. intelligence efforts. "I thought Director Goss was rather restrained in his comments, but he was absolutely correct," said Cheney.

Cheney's remarks came in a radio interview with conservative talk show host Laura Ingraham.

 

[97silverlsc]

Chairman Roberts Reacts to DNC Chairman Howard Dean’s Egregious Comments on Terrorist Surveillance

WASHINGTON, DC – U.S. Senator Pat Roberts, Chairman of the Senate Select Committee on Intelligence, today sent the following letter to Democratic National Committee Chairman Howard Dean:

“I was recently apprised of your assessment of the President’s terrorist surveillance program – an “early warning” capability to intercept the international communications of al Qaeda terrorists to and from persons within the United States. With respect to this important program, you stated, “President Bush’s secret program to spy on the American people reminds Americans of the abuse of power during the dark days of President Nixon and Vice President Spiro Agnew.” As Chairman of the Select Committee on Intelligence, I find your statements to be irrational and irresponsible.

“Any suggestion that a program designed to track the movement, locations, plans, or intentions of our enemy – particularly those that have infiltrated our borders – is equivalent to abusive domestic surveillance of the past is ludicrous. When Presidents John F. Kennedy and Lyndon B. Johnson approved the electronic surveillance of Martin Luther King, those Presidents were targeting American citizens based on activities protected by the First Amendment. When President Richard Nixon used warrantless wiretaps, they were not directed at enemies that had attacked the United States and killed thousands of Americans.

“I believe Americans understand that the careful and targeted program authorized by President Bush has no relation to the abuses of the past. Indeed, its closest antecedent is the direction of President Franklin D. Roosevelt to Attorney General Robert H. Jackson on the eve of World War II. With war looming and reports of lurking enemy saboteurs, President Roosevelt ordered the use of domestic electronic surveillance to target “persons suspected of subversive activities.” As President Roosevelt noted, “It is too late to do anything about it after sabotage, assassinations and ‘fifth column’ activities are completed.” Significantly, President Roosevelt’s direction was issued despite a statute (Section 605 of the Communications Act of 1934) and Supreme Court precedent (United States v. Nardone, 302 U.S. 379 (1937)) that prohibited such wiretapping.

“When President Bush exercised his constitutional authority and responsibility as Commander-in-Chief to target international communications between potential terrorists within this country and al Qaeda members overseas, he recognized, just like President Roosevelt, that after a terrorist attack occurs “t is too late.” Our nation had been attacked on September 11, 2001, by foreign enemies. We were, and are still, at war with an enemy that Congress identified in an Authorization for Use of Military Force (Pub. L. No. 107-40 (Sept. 18, 2001)). Much of the war against al Qaeda is being fought overseas – Afghanistan, Pakistan, Iraq. But the war against terrorism is not confined to foreign lands. The war against terrorism is being fought every day in our own backyard. America is a battlefield.

“In peacetime and especially when our nation is at war, our leaders, including the chairmen of our political parties, should be more careful and better informed before they criticize the intelligence programs that protect our nation. Vibrant debate is important in our free society, but that debate should be serious and rational, especially where national security is concerned. Too many are looking at national security issues through partisan lenses. I have seen it on the Intelligence Committee for the past three years. Our nation, and the men and women of the military, law enforcement, and the intelligence community, deserve better.”

:sleep: :sleep: :sleep: :sleep: :blah: :blah: :sleep: :sleep:

 

[ToddG]

Dean is right in his comparison of GW Bush to Richard Nixon. The issue "IS NOT" domestic spying! The issue is whether the executive branch adheres to the legal requirement to ensure that any domestic spying is undertaken with appropriate checks and balances. This is the crucial role played with judicial over site. If Bush acted in a manner similar to Nixon, then Bush has abused his presidential power.

The problem with this viewpoint is that it ignores both the facts and the law. The media have carelessly used the term "domestic spying" or "domestic surveillance" without any real understanding of what is going on, and the lefties eat it up implying that the President is using his war powers in a Nixonian attempt to spy on the American people. This is absurd.

First of all, the surveillance is "domestic" only in the sense that one end of the conversation either originates in the US or goes through the US domestic communication switches. If you take the time to read the FISA law, it expressly excludes this type of communications. It would be a different matter entirely if both ends of the conversation were within the US, but that is not the case here.

Second, the FISA law is likely to be unconstitutional. Why? Because it attempts to constrain the President's war powers that are given to him in Article II of the Constitution. In case you've forgotten your 12th grade Civics, Congress cannot pass a law that limits a constitutional provision.

Andrew McCarthy, a former federal prosecutor, provides a good explanation of the history of domestic surveillance and the folly of FISA:

---------

If President Bush’s reelection is any indication, what most Americans will care about is that we are monitoring the enemy. Chances are they won’t be overly interested in knowing whether that monitoring is done on the president’s own constitutional authority or in accordance with a statutory scheme calling for judicial imprimatur. Nevertheless, the Left is already indulging in loose talk about impeachment. Even some Republican “moderates,” such as Arlen Specter, say the domestic-spying allegations are troubling enough that hearings are warranted. So it’s worth asking: What is all the fuss about?

At bottom, it is about a power grab that began nearly three decades ago. Ever since it became technologically possible to intercept wire communications, presidents have done so. All of them, going back to FDR, claimed that the powers granted to the chief executive under Article II of the Constitution allowed them to conduct such wiretapping for national-security purposes. Particularly in wartime, this power might be thought indisputable. The president is the commander in chief of the armed forces, and penetrating enemy communications is as much an incident of war-fighting as bombing enemy targets is.

But surveillance power has been abused — and notoriously by President Nixon, whose eavesdropping on political opponents was the basis of a draft article of impeachment. Watergate-era domestic-spying controversies dovetailed with important developments in the law of electronic surveillance. In 1967, the Supreme Court, in Katz v. United States, held that Fourth Amendment protection against unreasonable searches extended to electronic surveillance — meaning that eavesdropping without a judicial warrant was now presumptively unconstitutional. Congress followed by enacting a comprehensive scheme, known as “Title III,” that required law-enforcement agents to obtain a court warrant for probable cause of a crime before conducting electronic surveillance. Yet both Katz and Title III recognized inherent presidential authority to conduct national-security monitoring without being bound by the new warrant requirement.

The Supreme Court undertook to circumscribe this inherent authority in its 1972 Keith decision. It held that a judicial warrant was required for national-security surveillance if the target was a purely domestic threat — the Vietnam-era Court giving higher priority to the free-speech interests of “those suspected of unorthodoxy in their political beliefs” than to the safety of those who might be endangered by domestic terrorists. Still, the Court took pains to exempt from its ruling the “activities of foreign powers or their agents” (emphasis added).

The true power grab occurred in 1978, when Congress enacted the Foreign Intelligence Surveillance Act. FISA attempted to do in the national-security realm what Title III had done in law enforcement: erect a thoroughgoing legal regime for domestic eavesdropping. And therein lies the heart of the current dispute. If the president has inherent authority to conduct national-security wiretapping, it is a function of his constitutional warrant. It is not a function of Congress’s having failed until 1978 to flex its own muscles. A constitutional power cannot be altered or limited by statute. Period.

But limiting presidential authority is precisely what FISA purports to do. It ostensibly prohibits national-security eavesdropping (and, since 1994, physical searches) unless the executive branch can satisfy a federal judge — one of eleven who sit on a specially created Foreign Intelligence Surveillance Court — that there is probable cause that the subject it seeks to monitor is an “agent of a foreign power” (generally either a spy or a member of a foreign terrorist organization).

FISA does not aim to restrict the power to eavesdrop on all conversations. Communications that are entirely foreign — in that they involve aliens communicating overseas, for example — are exempted, as are conversations that unintentionally capture “U.S. persons” (generally, American citizens and permanent resident aliens), as long as these communications are intercepted outside the U.S. But where it does apply, FISA holds that the president — the constitutional officer charged with the nation’s security — is powerless to eavesdrop on an operative posing a threat to the United States unless a judge — who need not possess any national-security expertise — is persuaded that the operative is a genuine threat. One suspects that such a system would astonish the Founders.

THE BOUNDS OF FISA
Does the NSA program violate FISA? That question is difficult to answer with certainty. The program remains highly classified, and many of its details are not publicly known, nor should they be. Much has been made of the fact that FISA approval is required to intercept calls into or out of the United States if an American is intentionally being targeted. But scant attention has been given to FISA’s caveat that such conversations are protected only if their participants have a reasonable expectation of privacy. It is difficult to imagine that Americans who make or receive calls to war zones in, say, Afghanistan or Iraq, or to al-Qaeda operatives anywhere, can reasonably expect that no one is listening in.

Nevertheless, it would not be surprising to learn that at least some of the NSA monitoring transgresses the bounds of FISA. For example, the statute mandates — without qualification about the reasonable expectation of privacy — that the government seek a judicial warrant before eavesdropping on any international call to or from the U.S., if that call is intercepted inside our borders. A distinction based on where a call is intercepted made sense in 1978. Back then, if a conversation was intercepted inside our borders, its participants were almost certain to include at least one U.S. person. But modern technology has since blurred the distinction between foreign and domestic telephony. Packets of digital information are now routed through switches inside countries (including, predominately, the U.S.) where neither the sender nor the recipient of the call is located. The NSA has capitalized on this evolution, and is now able, from within the U.S., to seize calls between Tikrit and Kabul, or between Peshawar and Hamburg. If done without a warrant, those intercepts present no FISA problem, because all the speakers are overseas. But it’s hard to believe that the NSA is using this technology only to acquire all-foreign calls, while intercepting calls between, say, New York and Hamburg only from locations outside the U.S.

Perhaps that is why the Bush administration’s defense has been light on the abstruse details of FISA and heavy on the president’s inherent Article II power — although carefully couched to avoid offending Congress and the FISC with suggestions that FISA is at least partly unconstitutional. Essentially, the administration argues that FISA is beneficial in ordinary times and for long-term investigations, but that it did not and cannot repeal the president’s independent constitutional obligation to protect the country: an obligation that was explicitly reserved even by President Carter, who signed FISA; that has been claimed by every president since; and that is uniquely vital in a war against thousands of stateless, stealthy terrorists, in which both a “probable cause” requirement and a sclerotic bureaucracy for processing warrant applications would be dangerously impractical.

 

[fossten]

It's clear that this wiretapping baloney is just a pathetic attempt by the left to smear and embarrass Bush by twisting the truth and filling the information gaps with whatever they can make up. The fact is, if I were Bush, I'd welcome hearings so I could get FISA wiped out. It's a bunch of bull and, if that's what the lefty weenies are banking their reelection chances on, even better. Chalk up another win for the Conservatives.

 

[barry2952]

Not likely.

 

[Vitas]

Not likely.

Are you for or against surveillance of International telephone calls that may lead to evidence of an attack against the U.S.?

I believe that about 65% of Americans are for it, correct me if I am wrong.

 

[barry2952]

Not against it at all if done within the established framework.

 

[Vitas]

Not against it at all if done within the established framework.

Well, then you get into "rules." Before this became a public issue, the wrongdoers had no clue. Now they know, and they will cover their tracks.

This should never have become public knowledge.

 

[barry2952]

Chalk up another win for the Conservatives.

From Rasmussen:

"Democrats have an 8-point lead on the generic Congressional Ballot."

 

[barry2952]

Well, then you get into "rules." Before this became a public issue, the wrongdoers had no clue. Now they know, and they will cover their tracks.

This should never have become public knowledge.

I agree. I interpret the rules differently than GWB. It is clear to many that there were to be checks and balances on this issue. Can we agree on that?

 

[Vitas]

I agree. I interpret the rules differently than GWB. It is clear to many that there were to be checks and balances on this issue. Can we agree on that?

Please provide a link.

 

[barry2952]

To what? My opinion?

 

[pbslmo]

Outrageous Hypocracy Of The Right

It's clear that this wiretapping baloney is just a pathetic attempt by the left to smear and embarrass Bush by twisting the truth and filling the information gaps with whatever they can make up. The fact is, if I were Bush, I'd welcome hearings so I could get FISA wiped out. It's a bunch of bull and, if that's what the lefty weenies are banking their reelection chances on, even better. Chalk up another win for the Conservatives.

Leave it to Fossten to point out the splinter in some one's else's eye while being blinded by the plank in his own. Such hypocrisy is both humorous and sad.

The "left" is not attempting to "smear" Bush! This characterization reflects a fundamental weakness of the Bush administration. Critical analysis that raises questions of propriety and prudence are not necessarily being posed to embarrass the president. The information gap has been created directly by the fact this administration thinks it is beyond congressional and judicial over sight. That in the name of national security and the war on terror, the executive office must only answer to itself [and God!]. The statement you make illustrates the above point:"The fact is, if I were Bush, I'd welcome hearings so I could get FISA wiped out." If this isn't Nixonian, then what would be? Wouldn't it be better to say that you welcome hearings so that the president would be proved to have acted within the law! Or, to demonstrate that the law is either unconstitutional or that it needs to be repealed because it no longer serves the common good.

And why with the name calling ...Lefty Weenies....come on I'm sure you are more creative and intelligent than that. When those who can disagree are able to do so in a respectful manner it strengthens the character and quality of the discussion. The focus should not be on "winning or losing" the next election cycle but rather on becoming the best we can be as an individual, community, society and country. Afterall, we all drive America's Best Vehicle....LINCOLN/CADILLAC

 

[pbslmo]

Or Maybe Not

Or maybe Dean is wrong...

IS THE PRESIDENT “ABOVE THE LAW”? I GUESS IT DEPENDS ON WHO THE PRESIDENT IS [Andy McCarthy]

Several former Clinton administration officials are among the group of “scholars of constitutional law and former government officials” who last week submitted a letter to Congress – posted on the New York Review of Books website – asserting that the Bush administration had “fail[ed] to identify any plausible legal authority” for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978). One of those former Clinton administration officials is Walter Dellinger.

But in 1994, Dellinger was singing a different tune. As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

The opinion is excerpted at some length in a letter being submitted to the Judiciary Committee by my friend Bryan Cunningham, a terrific lawyer in Colorado who worked in both the Clinton and Bush administrations (in the NSA, CIA and DOJ). That letter is now available at the website of Bryan’s lawfirm, www.morgancunningham.net.

The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally). Bryan also illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers – just as FISA does. This, too, is a position the Justice Department has aggressively defended under both Republican and Democrat administrations.

Given the hearing scheduled to begin on Monday, when AG Alberto Gonzales will be testifying before the Senate Judiciary Committee, they entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:


… Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).


Also particularly interesting given the number of Clinton officials who signed the afore-described letter condemning President Bush’s alleged flouting of the FISA wiretap statute, is another opinion issued by the Clinton administration’s OLC – this one in 2000. It’s discussed at length in the Cunningham letter. The Clinton OLC asserted, among other things, that even though the criminal wiretap statute (18 USC Sec 2510 et seq.) purports to limit the executive branch’s ability to disclose wiretap information, the President was free to ignore those statutory provisions where limiting “the access of the President and his aides to information critical to national security or foreign relations . . . would be unconstitutional as applied in those circumstances.”



Or maybe he meant it's alright if it's a Democrat...

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES" [Andy McCarthy]

Imagine the hysteria at the New York Times if the Ashcroft Justice Department had issued formal legal guidance with such a title! Is there any doubt that we'd be hearing horrific reminders of Watergate, "torture memos," and "domestic spying"?

Alas, this is the title of the formal guidance issued by the CLINTON Justice Department in 1994, to which I referred last evening.

The Office of Legal Counsel Opinion, written by then-Assistant Attorney General Walter Dellinger to then-White House Counsel Abner Mikva, is available online . Evidently, presidential power -- including the authority to ignore statutory restrictions that would curtail the President's inherent power to collect foreign intelligence information and protect national security -- was worthy of vigorous defending when it was being wielded by a Democrat.



Or maybe he's just biased....

MORE FROM THE CLINTON OLC ON PRESIDENTIAL AUTHORITY TO IGNORE STATUTES [Andy McCarthy]
Also very worthy of perusing is a 2000 opinion rendered by the Clinton Justice Department, entitled: "SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY." It is available here. It includes these gems:

n extraordinary circumstances electronic surveillance conducted pursuant to Title III may yield information of such importance to national security or foreign relations that the President's constitutional powers will permit disclosure of the information to the intelligence community notwithstanding the restrictions of Title III. . . . [T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because "t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.
Accordingly, law enforcement officers who acquire information vital to national security or foreign relations would be obliged to convey it to the appropriate superiors (e.g., the United States Attorney), who would report it to the Attorney General or Deputy Attorney General, who would in turn report it to the President or his designee. The President (or appropriate officials acting on his behalf, such as the Attorney General) would be authorized to share such crucial information with his executive branch subordinates, including intelligence community officials, to the extent necessary to discharge his constitutional responsibilities. Of course, this constitutional authority should not be exercised as a matter of course. Rather, it should only be exercised in extraordinary circumstances and with great care, and only where disclosure is necessary to the discharge of the President's constitutional responsibilities over matters of national security or foreign affairs. Even then, any contemplated exercise of this authority would necessitate careful consideration of the intrusion on privacy that might result.

Nor do we believe that disclosure of Title III information in these circumstances would violate the Fourth Amendment. Even if a disclosure of Title III information (as distinct from the seizure of the information) could otherwise violate the Fourth Amendment in some circumstances--a matter we do not address--we do not believe that this is an impediment to disclosure of Title III information of serious foreign affairs or national security import to the President. As we noted in our 1997 grand jury memorandum, the Supreme Court has recognized in other contexts that government actions overriding individual rights or interests may be justified where necessary to prevent serious damage to the national security or foreign policy of the United States. See Haig, 453 U.S. at 309 (invoking the principle that the Constitution's guarantees of individual rights do not make it a "suicide pact"); American Communications Ass'n v. Douds, 339 U.S. 382, 408-09 (1950) (to the same effect). We consider it very unlikely that the Court would conclude that the Fourth Amendment prohibits the disclosure of information vital to the national security or foreign relations of the United States.


Of course, if a Republican President -- acting during a shooting-war while American forces are in harm's way against a foreign enemy which has killed nearly 3000 Americans in a domestic attack and constantly announces that it is planning even more devastating strikes -- were to ignore restrictions in a wiretap statute in order to set up an early warning system to prevent domestic attacks, the legal analysis would be different, and such blatantly illegal domestic spying would obviously be grounds for impeachment ... if not execution.

Or maybe Dean is just full of you know what.

Source: National Review[/QUOTE

Thanks for getting to the core question and addressing the heart of the issue "Domestic Spying". There is sufficient cause that warrants congressional investigation to determine how the executive branch is currently collecting intelligence information. The president is sincere and believes he is acting within his constitutional authority and consistent with historical precedent. However, the legislative branch is just as sincere and is acting within its constitutional authority and historical precedent to determine [through its power to investigate] what the facts are and then to act appropriately based on the facts.

The issue is not or should not be "Democrat vs. Republican" or to justify abuse of constitutional authority in the present based on past abuse. The issue is one of checks and balances between different branches of government in an effort to secure and protect our constitutional rights.

The congressional hearings could reveal that the Bush administration acted appropriately and prudently to protect national security... or MAYBE NOT.

 

[RB3]

The issue is not or should not be "Democrat vs. Republican" or to justify abuse of constitutional authority in the present based on past abuse. The issue is one of checks and balances between different branches of government in an effort to secure and protect our constitutional rights..

This issue has been made Democrat vs. Republican, by the Democrats, because of their taking the EXACT OPPOSITE position when it's Bush as they did when it was Clinton. That is transparent hypocrisy.

The congressional hearings could reveal that the Bush administration acted appropriately and prudently to protect national security...

They will find exactly that, as long as the Congress reads the constitution and understands the powers that every President in the last fifty years has exercised. It can't be fine for everyone else, but illegal for Bush.

 

[pbslmo]

This issue has been made Democrat vs. Republican, by the Democrats, because of their taking the EXACT OPPOSITE position when it's Bush as they did when it was Clinton. That is transparent hypocrisy.



They will find exactly that, as long as the Congress reads the constitution and understands the powers that every President in the last fifty years has exercised. It can't be fine for everyone else, but illegal for Bush.

So why is there such a reluctancy for the inquiry? Hell, Ken Starr took 5 years and millions and millions of tax payer dollars to tell the public Clinton lied about Sex. Not to mention it began with the The White House Travel Office (did they fire people and put their own in?) then Whitewater (did the Clintons make money from a land deal) and ended with the semen stained dress. Tsk Tsk Tsk...

 

[RB3]

So why is there such a reluctancy for the inquiry? Hell, Ken Starr took 5 years and millions and millions of tax payer dollars to tell the public Clinton lied about Sex. Not to mention it began with the The White House Travel Office (did they fire people and put their own in?) then Whitewater (did the Clintons make money from a land deal) and ended with the semen stained dress. Tsk Tsk Tsk...

An utterly irrelevant reply.

Ken Starr was a special prosecutor, not a Congressman. He was investigating criminal acts, not sex. Clinton committed perjury and suborned perjury, both felonies, in connection with attempting to deny the civil rights of a citizen of the United States. The Travel Office wasn't merely firing people, it was the attempt to prosecute the employees (who were Democrats by the way) on trumped up charges. Whitewater resulted in 14 convictions of persons, who were associates and business partners of the Clintons, for criminal acts. Tsk tsk tsk indeed.

None of which has anything to do with the present issue. Try to stay on topic.

And what reluctance for hearings? They start tomorrow.

 

[ToddG]

So why is there such a reluctancy for the inquiry?

The difference is that this inquiry will be on a sensitive national security operation. It needs to be kept secret. The White House does not want to disclose their procedures, tactics, and sources for the intercepts and wiretapping, because they will be leaked, even if the inquiry is in a closed Congressional session.

The WH is trying to maintain secrecy so it can fight the terror war effectively. Public disclosures of programs like this (first made shamelessly by the New York Times, btw) only serve to undermine our efforts in fighting terrorism. The damage done to our terror-fighting capabilities by disclosure of the wiretapping program is far greater than the outing of Valerie Plame as a CIA officer, although you'd never know it if you read the mainstream press.