The Bush Administration Crawls Back Under FISA Umbrella: REALLY???

A Spy Program in From the Cold

Of the many ways that President Bush has trampled civil liberties and the balance of powers since the 9/11 attacks, one of the most egregious was his decision to order wiretaps of Americans’ international calls and e-mail without court approval. It was good news, then, when the administration announced yesterday that it would now seek a warrant from the proper court for that sort of eavesdropping.

I don't think anyone could have said it better. The warrantless, secret and unsupervised NSA domestic spying program is a breach of the Constitution. Bush and his gang have "trampled" not only civil liberties and the balance of power, but he has also trashed his oath of office and the duty to fully and competently adhere to the provisions of the Constitution. Impeachment is not only warranted, but it is necessary to demonstrate to the nation--and the entire world--that our liberties are our ultimate values and our Constitution cannot be violated even by our president, whether he believes he has cause or not. We must demonstrate that the "supreme law of the land" is exactly that... and no person, no matter how high of an office held, can violate that law without suffering the consequences. If we fail to impeach Mr. Bush, we are essentially throwing out our Constitution, our principles, our uniquely American values and demonstrating to the world that we do not mind living under the tyranny of fascism under the color of liberty... the false color of liberty.

The president’s decision hardly ends this constitutional crisis. Among other things, the public needs to know why Mr. Bush broke the law for more than five years and what should be done to ensure there will be no more abuses of the wiretap statute.

Indeed! We need to know why Bush violated the Constitution and his oath of office. We need to know why Vice President Cheney did not gather the Cabinet and seek his removal because of incompetence and breach of the Constitution, a clear demonstration that President Bush was incapacitated or unable to fulfill his oath of office, as provided by the Twenty-Sixth Amendment:

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Clearly there is an affirmative duty upon the Vice President and the Cabinet to assess whether the President is indeed competent and in compliance with the duties of his office, including his oath:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The moment Bush gave an order to blatantly ignore the Constitution as provided by the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Amendments of the Constitution (all contained in the Bill of Rights); as well as circumvented, ignored or deliberately breached the provisions of the Constitution that provide for the system of "checks and balance,"; and consciously violated FISA as provided by congress and signed into law by previous presidents, he violated his oath and Section 4 of the Twenty-Sixth Amendment should have been implemented. [N.B. I have posted previously on how exactly these provisions of the Constitution have been violated]

Since Cheney, Rice, Rumsfeld, Ashcroft, Gonzalez, and the other members of the Cabinet did not act to implement the provisions of succession due to incapacity or inability to fulfill his oath and duties, they are equally guilty. I submit that these folks have given "aid and comfort" to our enemies because our enemies are rejoicing at our hypocrisy, our failure to live up to our own rule(s) of law, our casting aside of our fundamental values and first principles, and allowed our president to run amok, committing not only civil liberty violations, but also international war crimes in our name. I further submit that the failure of the Vice President and Cabinet members to pro-actively act to prevent such violation of the Constitution and international treaties, as well as international laws regarding war crimes, they, too, became guilty of "war crimes." The standards set at Nuremburg made it clear that subordinates in a chain of command have an affirmative duty to act and prevent such breaches of law and human decency. The claim of following the orders of a superior is not a defense for such violations. Further, we have held to that standard in both civilian and military courts. [N.B. Invasion of a sovereign nation and violation of several international treaties are "war crimes" according to the standards set forth by the US and Allies at Nuremburg]

See the following links for clarification of the standards for establishing that war crimes have indeed been committed in our name by Bush and his administration:

War Crime:

In the context of war, a war crime is a punishable offense under International Law, for violations of the laws of war by any person or persons, military or civilian. Every violation of the law of war in an inter-state conflict is a war crime, while violations in internal conflicts are typically limited to the local jurisdiction. In essence, the term "war crime" represents the concept of an international jurisdiction as applicable to the most severe crimes, in areas where government is dysfunctional and society is in a state of turmoil.

List Of War Crimes:

War crimes under international law were firmly established by the 1945 Nuremberg Major War Crimes Trials, in which German leaders were prosecuted for war crimes committed during World War II. For purpose of selectivity, only war crimes since the customary laws of war were clarified in the Hague Conventions of 1907 are included, because in the judgement at the Major War Crimes Trial in Nuremberg in 1945, it was stated that "by 1939 these rules laid down in the Hague Convention of 1907 were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war".

Crime Against Peace:

A crime against peace, in international law, refers to the act of military invasion as a war crime, specifically referring to starting or waging war against the integrity, independence, or sovereignty of a territory or state, or else a military violation of relevant international treaties, agreements or legally binding assurances.

The definition of crimes against peace was first incorporated into the Nuremberg Principles and later included in the United Nations Charter. This definition would play a part in defining aggression as a war crime.

Crime Against Humanity:

A crime against humanity is a term originating in Western system international law that refers to acts of persecution or any large scale atrocities against a body of people, as being the criminal offence above all others.

The Rome Statute Explanatory Memorandum states that crimes against humanity "are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion."

Certainly the authorization of torture, maltreatment, extraordinary rendition, indefinite detention, the casting aside the provisions of the Geneva Conventions, and the abuse of prisoners at Abu Ghraib, Guantanamo, and prisons in Afghanistan qualify under these parameters. In addition, since a case can be made that the several atrocities committed by US troops in an environment of tacit approval of maltreatment for abuses, we can include these as evidence of a clear pattern consistent with intent to breach the principles embodied in international laws governing war crimes. Additionally, since we have had a vast majority of detainees proven not to be combatants, agents of terrorists and/or definitive enemies of the United States in any manner, and almost all of those detained are Muslim, a case can be made that grave infringement of human rights and persecution of an identified group. While that may not be the stated intent, the war crimes statutes and principles have a standard of "condoned," "tolerated," "de facto" and part of a pattern that indicates "policy." All of which are present in the actions cited above.

The Crimes Of War Project offers some examples of how crimes of war are defined, including an article on Three Misconceptions About The Laws Of War.


Indeed, our own statutory law defines "War Crimes" (U.S. C. TITLE 18: PART I, CHAPTER 118, § 2441, (c)) as follows:

Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

But we’re pleased that Attorney General Alberto Gonzales informed leaders of the Senate Judiciary Committee that Mr. Bush had decided to end the warrantless program. He said the administration had worked out a way to speed the process of getting a warrant from the Foreign Intelligence Surveillance Court to intercept communications to and from the United States “where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization.”

While I am deeply pleased that this particular warrantless spying program will now comply with FISA and will be reviewed by the FISA Court, I am concerned, given the Bush administrations past conduct and propensity for circumventing the law and oversight, about the particulars as to how Bush and Gonzalez have worked out a "way to speed the process of getting a warrant." Since I have written past posts on how many ordinary warrants have been granted on falsified evidence and lies by law enforcement authorities--even by FBI and other federal agents--there is cause to pause and question these issues. Will the mere accusation by a third party, as is provided for by the USA Patriot Act and the so-called "signing statements" that Bush is so fond of using to "exempt" himself and his administration from adhering to the law, be the grounds for a FISA warrant, or will there be an actual standard of evidence. After all, it has been reported in the past that only two percent of FISA warrant applications have been refused in the past. Additionally, since the Bush administration is relying upon data mining, which the best experts (c.f. Effective Counterterrorism and the Limited Role of Predictive Data Mining and Balancing Privacy and Security: The Privacy Implications of Government Data Mining Programs) clearly identify as a seriously flawed approach, as the basis of much of the "evidence" in these cases, will the standards employed by the FISA Court be consistent with our constitutional principles of having reliable evidence before issuing a warrant?

He said the court — created by the 1978 law on domestic wiretapping — issued an order on Jan. 10 governing this new process and that eavesdropping under “the terrorist surveillance program” would be subject to the court’s approval. There are still some big unanswered questions. For one thing, because the new warrant process is secret, we don’t know whether the court has issued a blanket approval for wiretapping, which would undermine the intent of the law, or whether the administration agreed to seek individual warrants.

Since the FISA Court operates in secret, and there is no way to assure compliance with the laws set forth by congress, there is clearly a need for another means to provide oversight. I would suggest weekly reviews by the House and Senate Intelligence Committees. Or perhaps a weekly review by the SCOTUS so that the separation of powers are not hauled into question.

It was also troubling that Mr. Gonzales repeated his insistence that the warrantless spying was legal. That suggests that the administration — which has never explained why it could not have sought warrants from the start and turned down offers to amend the law — will continue to resist legislative oversight of the wiretapping. It’s also likely to argue that the lawsuits challenging the eavesdropping should be dismissed. The damage has already been done by the president’s decision to ignore the law, and the lawsuits should proceed.

The continuous self-exemption from the law provided by the Bush administration is nothing more than a means to insulate Bush and Cabinet members from impeachment and accountability for criminal acts (violation of affirmative duties under a law are criminal acts). Since Bush, Rice, Ashcroft, Gonzalez, Rumsfeld and Cheney have all placed themselves above the law in so many cases and instances, can we trust this crew and this administration to adhere to the law without persistent and stringent oversight? I think not.

Mr. Gonzales’s announcement clearly was politically timed: he will appear today before the Judiciary Committee, now controlled by Democrats who have vowed to investigate the eavesdropping.

Bush and company are trying to prepare for the '08 elections and repair the GOP's public image. I do not think that such can be done. However, like Nixon, Reagan, Bush (Sr.) and Clinton before him, George W. Bush has a certain knack for distracting us from the important issues while he pulls off yet another secret operation that we eventually discover to be a violation of law, principle and ethics.

We strongly agree with John Rockefeller IV, the Democratic chairman of the Senate Intelligence Committee, that “the administration’s go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary” and that the White House should turn over documents on the creation of the wiretapping program. If the 1978 law needs to be updated, that should happen in public, not in a secret court.

Amen!!!!

This administration long ago forfeited the public trust on these issues.

The list of acts and deceptions that caused such forfeiture is long and disgusting. But the climate of disdain and disregard for law, standards and principle is well established in the Bush administration. Consider the following articles as examples:


Gonzales Disparages Judicial Competence In National Security Cases

US Attorney General Alberto Gonzales used the occasion of a Wednesday speech to the conservative American Enterprise Institute on the perils of judicial activism to suggest that judges are not the appropriate agents to rule on national security issues, and that they should otherwise exercise extreme caution when declaring executive and legislative action as unconstitutional.

Gonzales said: "I do not believe the Framers ever intended for the Judicial Branch – the Supreme Court or the lower courts – to make policy. It is worth recalling Hamilton's famous words, again from Federalist 78: 'The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.' ..."

Of course this is nothing more than the same old wild goose chase regarding judicial activism used by the ultra-conservatives and the Religious Right to distract us from their own brand and version of judicial activism. Certainly, as I have written about in previous posts, the approach to law offered by Scalia, Alito, Thomas and the late Rhenquist is judicial activism of the ultra-conservative persuasion. What Gonzalez is really saying is that any effort to balance the conservative and liberal approaches to constitutional law is "activism" and only the ultra-conservative version of constitutional law is acceptable. It is odd that this is the same approach to life employed by the Christian Right and the overall Religious Right. Unfortunately for the ultra-conservatives (including Gonzalez and Bush), our founders and framers did not build a system based on the "my way or the highway" approach being advocated by Bush, Gonzalez and the rest of the ultra-conservatives. In fact, our framers did intend for debate, civilized conflict and debate, and judicious resolution of our conflicts and social problems, including threats to our national security.

But the disdain for the rule of law and the uniquely constitutional process laid down by our founders and framers is rampant among the Bush administration:

DOD Official Slams US Law Firms For Defending Guantanamo Detainees (Stimson Apologizes To Detainee Lawyers For Guantanamo Representation Comments)

US Deputy Assistant Secretary of Defense for Detainee Affairs Charles "Cully" Stimson has set off a firestorm of protest by publicly questioning the propriety of some of the country's top law firms representing Guantanamo Bay [JURIST news archive] detainees. In an interview [recorded audio] on Federal News Radio [media website] Thursday on the fifth anniversary of the US military prison, Stimson predicted that "when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line in 2001 those CEO's are going to make those law firms choose between representing terrorists or representing reputable firms." The former Navy lawyer said "It's shocking...The major law firms in this country...are out there representing detainees."

Military Expands Intelligence Role in U.S.

But it was not previously known, even to some senior counterterrorism officials, that the Pentagon and the Central Intelligence Agency have been using their own “noncompulsory” versions of the letters. Congress has rejected several attempts by the two agencies since 2001 for authority to issue mandatory letters, in part because of concerns about the dangers of expanding their role in domestic spying.

The military and the C.I.A. have long been restricted in their domestic intelligence operations, and both are barred from conducting traditional domestic law enforcement work. The C.I.A.’s role within the United States has been largely limited to recruiting people to spy on foreign countries.

RELATED REFERENCES:

Domestic Surveillance Activities Now Subject To FISC Supervision: Gonzales

Court to Oversee U.S. Wiretapping in Terror Cases