Without passing new legislation, the Senate Intelligence Committee has signed, or is signing, a blank check giving permission for an illegal program of domestic surveillance  by the Bush administration to spy on “suspected” US citizens to run for 45 days without warrants.  One would assume that after that 45 days the NSA would have to offer proof that the suspicions were grounded, and then get the warrants they should have had in the first place.  The legal window (FISA) is 72 hours.

Have I got this right so far?

It is illegal to do this… even with oversight there is no oversight.  When has this administration, or any administration said, “Sorry, we spied on the wrong guy.”

The Senate Intelligence Committee has endorsed the Nixon approach:  “When the President does it, that means its not illegal.”

This legislating confusion that has been the guiding modus operandi of this administration… Geneva up, Geneva down.  Which law are we operating under?  The law as passed, or the law as rewritten in Presidential signing statements?  Or the law as waived by the Senate Intelligence Committee?

Power We Didn’t Grant
By Tom Daschle
Washington Post
Friday, December 23, 2005

In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president “was granted authority by the Congress to use all means necessary to take on the terrorists, and that’s what we’ve done.”

As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.


    “The power of the president is at its zenith under the Constitution when the President is directing military operations of the armed forces.”  He has the authority “to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters” whether or not such entities can be “demonstrably linked to the September 11 incidents.”  John C. Yoo; September, 2001.  Yoo was formerly with the Office of Legal Counsel, and is presently professor of law at UC Berkeley.

This administration has claimed that the war against terrorism is a new kind of war, outside the province of “traditional” criminal law…. outside the Uniform Code of Military Justice, and outside the Constitution as we know (knew) it.  This barricade against future possible prosecution was laid by the late great Jay Bybee (now a federal judge) and the ever-prolific Professor John C. Yoo.  Gonzales commissioned the memos and signed them that nullified Geneva Conventions, international law, and protected the CIA from ever being held legally accountable for anything.  

This persisted into November of 2004 when the Bush administration, via Condolleezza Rice, pressured Senators to remove language that HAD ALREADY PASSED prohibiting the CIA from torturing prisoners.  Olympia Snowe of Maine was one of the four Senators who caved in, accepting promises that the issue would be taken up in 2005.  But in 2005, we were too busy trying to track down the secret black prisons scattered throughout Europe.  With the CIA it’s “catch as catch can”… and the thing is YOU CAN’T.

By building his first detention camp in Cuba, outside US territory, and designating his prisoners “illegal enemy combatants,” Bush further attempted to evade US law, The Convention Against Torture, and the Geneva Conventions.  Finally, at the “zenith of his powers,” Bush improvised the New Constitution and established a New System of US Government.  This effort was underwritten by John Yoo who said in 2002, “What the administration is trying to do is create a new legal regime.” A new regime it is, but legal?  Devised by his league of lawyers, yes.  To establish this new regime the administration had to create a new meaning of “legal.”

What is this?  A New Constitution?  A New Presidency?  A New War Powers Resolution?  A New Form of US Government?  What happened?  Was there a hostile takeover?  Since when is a presidential election the equivalent of surrender to a foreign system of government?  Did anybody know about this?

John C. Yoo did.  He wrote it.  From his 1996 “Continuation of Politics By Other Means: The Original Understanding of War Powers,” to the “THE PRESIDENT’S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM;” September, 2001, through to the 2002 Yoo/Bybee Torture Memo, John C. Yoo wrote the book that overturned 212 years of American law.  

He didn’t stop there, however.  He nullified the Magna Carta, too.  Quite a guy.  The creative Professor Yoo is speaking in a forum at UC Berkeley this weekend… that’s okay, I’m getting used to this.  The law is not the law and UC Berkeley is not UC Berkeley.


What hath the Senate Intelligence Committee wrought?

The Death of the Intelligence Panel
New York Times
Opinion Editorial
March 9, 2006

The wrenching debate in the 1970’s over the abuse of presidential power produced two groundbreaking reforms aimed at preventing a president from using war or broader claims of national security to trample Americans’ rights.

One was the Foreign Intelligence Surveillance Act, which struck the proper balance between national security and bedrock civil liberties, and the other was the Senate Select Committee on Intelligence, a symbol of bipartisan leadership. They endured for a quarter of a century — until George W. Bush and Dick Cheney left FISA in tatters and the Senate Select Committee on its deathbed in just five years.

The Senate panel has become so paralyzingly partisan that it could not even manage to do its basic job this week and look into President Bush’s warrantless spying on Americans’ international e-mail and phone calls. Senator Pat Roberts, the chairman, said Tuesday that there would be no investigation. Instead, the committee’s Republicans voted to create a subcommittee that is supposed to get reports from the White House on any future warrantless surveillance.

It’s breathtakingly cynical. Faced with a president who is almost certainly breaking the law, the Senate sets up a panel to watch him do it and calls that control. This new Senate plan is being presented as a way to increase the supervision of intelligence gathering while giving the spies needed flexibility. But it does no such thing.


WSJ editorial claimed GOP senators “mugg[ed]” White House in wiretapping agreement
March 10, 2006

Summary: A Wall Street Journal editorial described a recent agreement between GOP Senate Intelligence Committee members and the Bush administration concerning its warrantless domestic surveillance program as a “White House mugging by Republicans.” However, far from a “mugging,” the agreement essentially legitimizes the controversial program, which currently operates in apparent violation of the law.

Senators bow to White House

It’s a shame that Republicans in Congress are already brokering a deal with the White House to shield the administration’s warrantless eavesdropping on American citizens before the program has been fully examined.

The deal involving weak-kneed Republicans on the Senate Intelligence Committee and Vice President Dick Cheney would forestall a serious investigation while permitting the National Security Agency to continue domestic eavesdropping without court warrants.

Can journalists be prosecuted as spies?
By Daniel Schorr Fri Mar 10, 3:00 AM ET
WASHINGTON – It’s no secret that the White House is no fan of leaks. But, can a reporter who breaks some official secret be prosecuted for espionage? That question has arisen as the Bush administration, incensed over leaks such as the warrantless NSA wiretapping, looks for more ways to crack down.
It is not clear whether the World War I Espionage Act can be used against persons outside the government. It refers to “whoever” transmits information with reason to believe it will be used to the injury of the United States. The reach of that language is an unsettled question. In the past, prosecutors have preferred to use the contempt citation as in the Judith Miller case.


President Bush has called the NSA leak a “shameful act” that is “helping the enemy.” That begins to sound like espionage-act language.
In a court filing last month, the Justice Department maintained that reporters can be prosecuted for espionage. CIA Director Porter Goss has said, “It is my aim and it is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information.”
A reporter prosecuted for espionage? A new day in government-media relations may be dawning.

* Daniel Schorr is a senior news analyst at National Public Radio.


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Stop this reign of lawless spying, suspicion and terror.  Stop these bastards with the law.


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