Contradiction Of Terms, Ideas & Principles: Congress & The Executive In Action

Even the Republicans can't seem to agree on the way the Bush administration does things. One leading Republican senator (Sen. Pat Roberts R-Kansas) is backpeddling and calling for the NSA to come under the jurisdiction of a special intelligence court (similar to to the FISA court?) while another (Sen. Mike DeWine R-Ohio) from a more Bush-friendly neck of the woods is calling for anything the NSA does to be exempt and excluded from the FISA court (and ostensibly all oversight) altogether. Meanwhile, anyone that is really paying attention would see an opportunity to fundamentally change the way congress does business, reining in the Bush administration from its wayward grab for powers and authority not specifically granted to the executive branch by the Constitution or congress.

Senate Chairman Splits With Bush on Spy Program - New York Times

WASHINGTON, Feb. 17 — The chairman of the Senate Intelligence Committee said Friday that he wanted the Bush administration's domestic eavesdropping program brought under the authority of a special intelligence court, a move President Bush has argued is not necessary.

Wait a minute... It is already supposed to be under the jurisdiction of the FISA court. The NSA does not have the authority to conduct domestic surveillance without a warrant, regardless of the arguments made by the Bush administration, because the Constitution forbids it. Congress does not have the authority to ignore, abridge, abrogate or circumvent the Fourth Amendment even in times of war unless martial law is declared. Martial law can only be declared under very specific circumstances and must be limited in its actions and duration.

The chairman, Senator Pat Roberts, Republican of Kansas, said he had some concerns that the court could not issue warrants quickly enough to keep up with the needs of the eavesdropping program. But he said he would like to see those details worked out.

In order to work this out, increase the number of judges sitting on the FISA court and make sure that an equal number of Republican and Democrat appointees are sitting on the bench. Set forth procedures that must be followed, and make sure that the FISA court adheres to the Fourth Amendment.

"Mr. Roberts also said he did not believe that exempting the program from the purview of the court created by the Foreign Intelligence Surveillance Act 'would be met with much support' on Capitol Hill. Yet that is exactly the approach the Bush administration is pursuing. 'I think it should come before the FISA court, but I don't know how it works," Mr. Roberts said. "You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit. So we have to solve that problem.'"

The problem with this logic is that the adminstration has not presented one iota of evidence that the FISA court isn't working efficiently. They have made the claim that such is the case, but there has not been one case where they have applied for a warrant from the FISA court and the process used resulted in a delay.

One of the comments from AG Gonzalez was that even with the 72 hour window that FISA provides, the administration still has to be careful to provide due process and have "its ducks lined up in a row" before it can proceed with a wiretap. He stated that this process was cumbersome and inefficient. But he did not provide any examples--in open or closed sessions--where this actually presented a problem. After listening to Gonzalez I had the clear conclusion that nothing short of suspending the Fourth Amendment completely would satisfy the Bush administration... which is exactly why they chose to bypass FISA, sidestep judicial and congressional oversight and declare themselves as guardians of our rights.

"Mr. Roberts spoke in an interview a day after announcing that the White House, in a turnabout, had agreed to open discussions about changing surveillance law. By Friday, with Mr. Roberts apparently stung by accusations that he had caved to White House pressure not to investigate the eavesdropping without warrants, it appeared the talks could put the White House and Congress on a collision course."

And that is exactly what Roberts and other congress critters did... they have caved in on principle and abandoned our first principles.

Meanwhile, back at the ranch, er... Capitol Building, Sen. Mike DeWine has furthered the White House effort to throw the Constitution into the hopper:

WHITE HOUSE PRESS GAGGLE: 17 FEB 06

Q Actually, can I ask one more? I'm sorry. On the NSA program, apparently the White House is agreeing to actually look at legislation. Do you know if the White House would agree to legislation that would specifically authorize the NSA program under FISA, and bring it under FISA rules?

MR. DUFFY: Well, I'll decline to get into the specifics about the discussions, but the White House does look forward to working on legislation to further codify the President's authority. I believe that Senator DeWine has offered some good legislative principles in this area, and we look forward to working with the Congress on that. The President believes that he has the authority necessary, but of course we're willing to work with the Congress if they feel that further codification of that would be necessary.

But what is really interesting is that it was DeWine that tacked on amendments to FISA that would have given the government greater discretion in terms of FISA warrant and the Bush administration opposed them:

"In the last week, revelations that the Bush Administration itself opposed legislative changes to the 1978 FISA statue-- changes that would have lowered the legal bar for warrantless eavesdropping of non-US Citizens inside the United States-- have shaken the foundations of the administration's robust defense of its domestic spying program. Now, it appears that the three most controversial paragraphs of DOJ Lawyer James A. Baker's 2002 testimony to the Senate Committee on Intelligence on the legislation-- paragraphs in which Baker wrote that 'the Administration at this time is not prepared to support [changes to FISA]' have disappeared from the official record of the July 2002 hearing."

"Blogger and First Amendment lawyer Glen Greenwald ignited a media firestorm earlier in the week when he discovered that 'in June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA.' Bush the Bush administration itself, according to James A. Baker, a lawyer with the US Department of Justice, opposed the legislation, arguing that the changes were both constitutionally questionable and practically unnecessary. The administration's opposition to S. 2659, documented in a written statement to the Senate Selected Committee on Intelligence, were catalogued online by the Federation of American Scientists, an organization formed in 1945 in order to address "a broad spectrum of national security issues of the nuclear age" and with a 'mission to promote humanitarian uses of science and technology.'"

Copy Of S2659 and S2586 Submitted By Sen. DeWine

"The implications of the DOJ statement regarding S. 2659 are immense. Writes Greenwald: "the Administration’s excuse from the time the scandal broke and repeated by Gen. Hayden two days ago – that FISA does not provide the necessary 'speed and agility' for eavesdropping - was directly contradicted by its claims in June, 2002 that the Patriot Act’s FISA amendments give it all the speed and agility it needed. [...] Here is the critical point: if, as the Administration is now claiming, FISA was inadequate for eavesdropping, why was it telling the Congress in June, 2002 that FISA was perfectly adequate to enable all the eavesdropping it wanted, and even praising Congress for amending FISA (via the Patriot Act) and thereby giving the Administration everything it needed?"

I would also recommend that interested persons read Glenn Greenwald's The NSA Scandal and Public Opinion Myths

But very few congress critters are paying attention to the fact that the spying program initiated by the Bush administration is USELESS! It is not only ineffective, it doesn't work. Out of 5000 referrals of wiretaps to the FBI, investigators found only a handful of cases that yielded "persons of interest" and none that resulted in arrests, interventions or decisive action. Not only that, but since the program is now out in the open, many question its future efficacy:

Efficacy of Spying Program In Doubt

Washington - The House Intelligence Committee chairman on Sunday questioned the value of President Bush's secret eavesdropping program, saying al- Qaeda undoubtedly has changed its means of communication to avoid Washington's monitoring. Bush said two weeks ago in his State of the Union address that the program of monitoring calls and e-mail between the United States and suspected terrorists overseas 'remains essential to the security of America.'

But Rep. Pete Hoekstra, R-Mich., suggested that the public disclosure of the program's existence in December in the New York Times has undermined its effectiveness. "Does anyone really believe that, after 50 days of having this program on the front page of our newspapers, across talk shows across America, that al-Qaeda has not changed the way that it communicates?" Hoekstra said on NBC's "Meet the Press.'

But we have to give the Bush administration, the Republicans and the ultra-conservatives a but of credit: once they bite into a subject they don't let go no matter what facts are presented before them... unless it happens to be politically expedient, useful or in furtherance of their pre-determined agenda.

As Yakov Smirnoff said, "America, what a country!" We are fast becoming the joke that Smirnoff made his signature line.