The disgraceful right-wing distortion on the domestic spying issue

[Nepa]

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I have no problem if they do so in closed session so as not to expose our intelligence gathering capabilities. But I do have a problem if they seek to prevent what the president has authorized since it would hamper our ability to track those foreigners in American who seek to commit or aid terroristic acts, which has of course been shown to happen.

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I don't have a problem with the wire tapping.

There is a system in place where a wire tap can be placed and within 72 hours they would have to get this approved by a secret court. These aren't exact numbers but I'v heard there have been something like 12000 wire taps since 1980 and the court has turned down like 9.

Here is where my problem is. Why did the president order wiretaps then never take it in front of the secret court? Is there something to hide?

Would the court have disallow these wire taps? Were they spying on foes of the Bush admin? ect. ect.

Did Bush go to far this time?

[BluffTHIS!]

If you google for and read some more in depth on this issue, you will find that although it is true that the secret court is fairly speedy in its mostly rubber stamp approvals once the issue has been heard, that it nonetheless is very time consuming to prepare the matter for the court and get it on the docket and heard. That shows that there is in fact an issue of urgency in many of these matters that is hampered by the entire process.

[Nepa]

[ QUOTE ]
If you google for and read some more in depth on this issue, you will find that although it is true that the secret court is fairly speedy in its mostly rubber stamp approvals once the issue has been heard, that it nonetheless is very time consuming to prepare the matter for the court and get it on the docket and heard. That shows that there is in fact an issue of urgency in many of these matters that is hampered by the entire process.

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I don't believe that this is the reason that they did this? At least nothing that I'v read or heard would lead me to believe this. This is a weak taking point.

[andyfox]

It is my understanding that the approval from the special FISA court can be gotten after the fact. That is, that they can do what they want for 72 hours and get approval thereafter for what they did. And out of about 19,000 requests for approval, only five had been denied since the law was passed.

The law was passed with this in mind. Namely that the situations involving terrorism or other emergencies would require quick action that wouldn't necessarily come from regular courts.

If the Bush administration, in the aftermath of 9/11, had felt that FISA was inhibiting fighting the war on terrorism, they could have gone to Congress with a proposal to amend the law. Who in Congress would have opposed this?

The most obvious explanation for the failure to get approval from the FISA court is that is might not have been given. For the president to say that he didn't have to go to the court because of the Constitution or the congressional authorization for the use of force against Afghanistan is quite a stretch.

[BluffTHIS!]

Excerpt below from today's WSJ op-ed page gives the president's legal authority for warrantless wiretaps.

Thank You For Wiretapping

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

[andyfox]

Thanks for the link. It's going to take a lot to analyze the editorial. A whole shovelful.

"America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility."

Really? Where does the Journal see that in the Constitution? I can't imagine the framers didn't recognize that 535 "talking heads" couldn't have grave responsibilities because they clearly wanted a balanced government where congress made the laws and the executive executed them. And, of course, there were not 535 members of congress in 1789.

"FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed."

The president and the attorney-general are claiming that the Constitution grants them the right to wiretap whenever they feel like if they say national security is involved. One wonders where in the Constitution they see this. The vice president weighed in on this today. More on that below.

"the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties"

Where is this evidence?

"Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear."

The fact that Mr. Gonzalez approved the wiretaps is no consolation to me. He believes in an apparently unlimited presidential prerogative to do whatever the president wants; if the president does it, it's legal. And there is no smear as the Journal insinuates. I heard President Bush's most prominent critic on this issue, Senator Feingold, on Jim Lehrer's show last night and he said nothing of the sort.

"All the more so because there are sound and essential security reasons for allowing such wiretaps. The FISA process was designed for wiretaps on suspected foreign agents operating in this country during the Cold War. In that context, we had the luxury of time to go to the FISA court for a warrant to spy on, say, the economic counselor at the Soviet embassy."

There is no time constaint whatesoever. The president can wiretap and then has 72 hours to get ex post facto approval from the FISA court. That approval has been granted in all but five of the thousands of times the government has gone to the court. In fact, critics of the court have called it the Rubber-Stamp Court. There is no time constraint and no problem in getting court approval.

"Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We're glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans."

In a word, [censored]. Too many in the administration have forgotten that the executive is only one branch of government and that we have a free society only so long as all three branches follow the laws.

That brings us to Vice President Cheney's comments today:

"I believe in a strong, robust executive authority and I think that the world we live in demands it. And to some extent, that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them."

What is he talking about? Does he really think the executive authority has been attenuated?

"If there's a backlash pending," because of reports of National Security Agency surveillance of calls originating within the United States, he said, "I think the backlash is going to be against those who are suggesting somehow that we shouldn't take these steps to defend the country."

Note that language. Those who disagree with the wiretaps or other things ("these steps") are saying that we shouldn't defend the country. This has been a consistent argument of the administration, questioning the patriotism of those who take issue with the administration's tactics.

"Either we're serious about fighting the war on terror or we're not," the vice president said. "The president and I believe very deeply that there is a hell of a threat."

Apparently then, by implication, those who disagree with the administration are not serious about the war on terror and don't believe there is a hell of a threat.

This is simply shameful. It's a throwback to the redbaiting of the McCarthy era when politicians at the same point in the political spectrum as Mr. Cheney constantly smeared those who disagreed with them with the accusation of being "soft" on Communism.

"Watergate and a lot of the things around Watergate and Vietnam both during the '70s served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Cheney said. But he also said the administration has been able to restore some of "the legitimate authority of the presidency."

Watergate and Vietnam showed us that we had an imperial presidency that was out of control. Pathological liars, most prominents, Lyndon Johnson and Richard Nixon shamed America, one quitting before he could be chased out of town and the other resigning in the wake of illegal actions. It was Nixon who said, "If the president does it, it's legal." This is apparently the doctrine the administration believes in, since both the vice president and the attorney general have said as much this week.

Cheney said that "many people believe" the War Powers Act, enhancing the power of Congress to share in executive branch decision-making on war, is unconstitutional and said "it will be tested at some point. I am one of those who believe that was an infringement on the authority of the president."

I await further explication from the vice president. According to the constitution, the congress has the war-making power.

"But I do believe that especially in the day and age we live in, the nature of the threats of we face - and this is true during the Cold War as well as I think is true now - the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," the vice president said.

His constitution powers "unimpaired"? Mr. Cheney should read the constitution sometime.

"You know, it's not an accident that we haven't been hit in four years," Cheney said. "I think there's a temptation for people to sit around and say, 'Well, gee that was just a one-off affair, they didn't really mean it.'"

What people have been sitting around saying this? (According to the 9/11 commission, it's the Bush administration, who got a terrible report card from the commissioners recently.) Who has said, "they didn't really mean it?" Again, it's a smear on opponents insinutating that either "you're for us or you're against us."

"The bottom line is we've been very active and very aggressively defending the nation and using the tools at our disposal to do that," he said.

The criticism is not that the administration is not defending the nation but that it might have broken laws in doing so.

The administration has brought back a hubris and arrogance, and a disdain for respect for the law that we haven't seen since the worst days of Vietnam and Watergate. And, according to Mr. Cheney, he thinks it should, because the aftermath of Vietnam and Watergate was an unwarranted diminution of presidential power.

The comparison of Iraq with the disaster of Vietnam becomes more apt every day.

[BluffTHIS!]

andy, I want to commend you for your humility in admitting that it does indeed look like previous court decisions validate the legal opinion of the Attorney General and the legality of the president's actions. Very big of you.

[andyfox]

Touche! Very good.

I would have to read the court decisions (and know more about exactly what the wiretaps involved) to see if the Journal's take on them is correct. It is interesting that neither Gonzalez nor the president mentioned those court decisions as validating their argument. Both mentioned the 2001 authorization to use force and the Constitution. Perhaps they meant the court decisions when they said the Constitution.

Out of curiosity, do you have any fears about an imperial presidency or abuse of power in light of President Bush's, Vice President Cheney's, and Attorney General Gonzalez's comments of the past fews days?

[etgryphon]

[ QUOTE ]
It is my understanding that the approval from the special FISA court can be gotten after the fact. That is, that they can do what they want for 72 hours and get approval thereafter for what they did. And out of about 19,000 requests for approval, only five had been denied since the law was passed.

The law was passed with this in mind. Namely that the situations involving terrorism or other emergencies would require quick action that wouldn't necessarily come from regular courts.

If the Bush administration, in the aftermath of 9/11, had felt that FISA was inhibiting fighting the war on terrorism, they could have gone to Congress with a proposal to amend the law. Who in Congress would have opposed this?

The most obvious explanation for the failure to get approval from the FISA court is that is might not have been given. For the president to say that he didn't have to go to the court because of the Constitution or the congressional authorization for the use of force against Afghanistan is quite a stretch.

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I'm going to go ahead and agree completely with andy.

The FISA court is set up for emergency situations. You can set up a tap for 72 prior to getting approval. In addition, you can get the tap extended in 15 day increments to give approval time.

It is very disingenuous to state that you "don't have time" to get approval.

I think he can argue that he was given authorization through the 9/11 act, but that is a REAL stretch and the reason that we have the judiciary.

They have the job of sorting it out. I am very leery of this whole thing. It is a very scary America if this becomes OK.

-Gryph

PS: Still wouldn't have voted for Kerry...

Bush in 2004:
"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."