Cross posted from The 10,000 Things
Friday, December 16, the New York Times reported that President George W. Bush had signed an executive order authorizing the National Security Agency to eavesdrop on American citizens and others inside the United States of America. Mr. Bush’s order is said to have authorized the NSA to engage in this domestic spying without previously obtaining court-approved warrants.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. – Amendment IV to The Constitution of the United States of America
Saturday, December 17, as part of a radio address President Bush said the following:
“To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I’m also using constitutional authority vested in me as commander in chief.”
The text of the “Authorization for Use of Military Force” passed on Sep. 18, 2001 is exactly what it sounds like. S.J. Res 23 after a bunch of Whereas’s states:
Sec. 2. Authorization For Use Of United States Armed Forces.
(a) IN GENERAL.–That the President is authorized to use all necessary and appropriate force against those nations, organizations, or person he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements.–
(1) SPECIFIC STATUTORY AUTHORIZATION.–Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Power Resolution.
The War Powers Resolution of 1973 (H.J.Res 542) states, under a section titled “Purpose and Policy,” in part:
Sec. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.
The United States Armed Forces consist of the Army, Marine Corps, Navy, Air Force, and Coast Guard.
Further the War Powers Resolution, in a section titled “Consultation,” states:
Sec. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
Section 8(a)(1) titled “Interpretation of Joint Resolution” referenced specifically in the authorization of 9/18/01 states:
Sec. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred–
(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or
Section 5(b) under the title of “Congressional Action” also referenced in the authorization states:
(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States.Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
Seems an odd paragraph to use as defining reference material but I believe the implication is to use the definitions labeled 1, 2, and 3. By default it also brings into play the last sentence giving the President authority to extend deployment of US forces in hostilities seemingly indefintely as long as Congress is notified in writing of the Presidents determination and certification of the truth of the need (gee… now I’m writing like deez guyz).
There is much more to the War Powers Resolution but virtually every paragraph and clause makes reference to the US Armed Forces, foriegn soil, deployment overseas, etc.
Let’s repeat what Bush said today:
“To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I’m also using constitutional authority vested in me as commander in chief.”
Section 8 of The Constitution of the United States enumerates the Powers of Congress. In regard to military and related matters it says:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Article II of The Constitution outlines the Presidency. The last paragraph of section 1 is the well known Oath of office:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-“I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Section 2 enumerates the Powers of the Office of which only the following sentence is pertinent to his statement today:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
Section 4 contains another important feature:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Mr. Bush’s next statement in his radio address was:
“In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.”
Revisiting the 4th Amendment to The Constitution of the United States of America stated above:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searchjes and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Further, the very important Amendments IX and X read:
Amendment IX: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
And the all important 14th Amendment:
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
According to the database of U.S. Code at the Cornell Law School. Their website states “This version is generated from the most recent official version made available by the US House of Representatives.”
In Chapter 36–Foreign Intelligence Surveillance, Subchapter I — Electronic Surveillance, § 1801. Definitions:
(f) “Electronic surveillance” means–
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that–(A) the electronic surveillance is solely directed at–
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless–
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to–
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain. The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.
§ 1805. Issuance of order (in part says)
(f) Emergency orders Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that–
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.
If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.
In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.
§ 1809. Criminal sanctions
(a) Prohibited activities A person is guilty of an offense if he intentionally–
(1) engages in electronic surveillance under color of law except as authorized by statute; or(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
§ 1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
So let’s return to George Bush:
“Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”
The New York Times report linked at the top of this page simply states that the NSA has been wiretapping conversations in an effort to catch terrorists. It is probably safe to assume that foreign nationals inside and outside of the United States engaged in activities intended to be deterimental to the United States expect the United States security, intelligence, police and defense agencies to be attempting to figure out who they are, what they are planning, where, when, how, and are intent in stopping them. The revelation that their phone conversations might be tapped is not likely not a surprise.
“.. and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.”
*cough* Dick Cheney *CoughCough* Karl Rove *CoughCough* Scooter Libby *cough*
“As the 9/11 commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad… The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.”
“The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.
“During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the attorney general and the counsel to the president. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.
“The NSA’s activities under this authorization are thoroughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.”
Where to begin? The “Authorization for Use of Military Force”, the “War Powers Resolution”, and the Presidents authority as Commander in Chief all have to do with the armed services and foreign war. All but the Commander in Chief part are very specific and limited in their application to the use of the Armed Services in war. The NSA and other intelligence agencies are not branches of the United States Armed Forces. His opening justification is patently false.
Mr. Bush’s order authorizing the NSA to engage in unwarrented wiretaps was plainly illegal under the Foreign Intelligence Surveillance Act. This act is very specific on who and when eavesdropping of all sorts can occur. It also provides all necessary provisions for reporting as well as provisions for emergency wiretaps. Importantly it also states in no uncertain terms that this procedures run through the Department of Justice and the Attorney General. The AG is to report to Congress and the Courts. The AG is to obtain appropriate authorizations from the courts. The AG is even allowed to authorize surveillance to go on without court approval for a period of 72 hours. Mr. Bush’s statement of rationalization and justification talks about 45 day review by White House Counsel and the Attorney General rather than receit of authorization and appropriate warrents from the courts established to oversee such activities. He talks about review by the DOJ and the NSA’s lawyers not Congress and the Courts. He talks about briefing Congressional Leaders and not the very specific reporting requirements of the Attorney General and oversight mechanisms of Congressional Intelligence Committees.
Mr. Bush’s order was illegal and for any legitimate purpose it was also completely unnecessary. He states that he needed to do this in order to intercept communications between terrorist operatives. FISA is clear that any shred evidence linking a foreign national in the US with al Queda would have been approved as reason to eavesdrop. The only time FISA would have gotten in the way was when there was no supporting evidence whatsoever.
Is this where I post the 4th Amendment for a third time?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
Mr. Bush’s order was illegal and unconstitutional.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-“I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
As if it’s not enough… just out in the on-line version of today’s New York Times we read that:
“The National Security Agency first began to conduct warrantless eavesdropping on telephone calls and e-mail messages between the United States and Afghanistan months before President Bush officially authorized a broader version of the agency’s special domestic collection program, according to current and former government officials.”
Further, that:
“The disclosure of the security agency’s warrantless eavesdropping on calls between the United States and Afghanistan sheds light on the origins of the agency’s larger surveillance activities, which officials say have included monitoring the communications of as many as 500 Americans and other people inside the United States without search warrants at any one time. Several current and former officials have said that they believe the security agency operation began virtually on the fly in the days after the Sept. 11 attacks.
“The early, narrow focus on communications in and out of Afghanistan reflected the ad hoc nature of the government’s initial approach to counterterrorism policies in the days after Sept. 11 attacks.”
The Bush administration has regularly claimed that everything changed after Sept. 11. Looks like that one was one of their rare truths. They used this spurious rational to assert the Presidents right to make up new laws and rules as they went along. They asserted the sole right of the President to determine the definition of what is an enemy combatent and the fate of these people. They asserted the President had the right to decide when existing law applied and when it didn’t.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The many actions, justifications, and rationalizations of the Bush along these lines have all been illegal and unconstitutional. They do not get to make it up as they go along. If new law needs to be made, new powers enumerated it is the people through their representatives in congress that determine these matters. It is the Presidents role to “take Care that the Laws be faithfully executed….” – Last paragraph, section 3, Article II of The Constitution of the United States of America.