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Monday, May 08, 2006

A Constitutional Crisis

Originally Posted: December 18, 2005 -- 1:14 PM
Fool Boards Link: http://boards.fool.com/Message.asp?mid=23443416

The third in a series of notes on the faulty logic used to support flawed security strategies in a post- September 11, 2001 world.


The New York Times story on Friday, December 16 2005 divulged that President Bush has approved over 30 wiretaps by the NSA on calls originated by individuals within the US to overseas parties without a court approved warrant. Since the evidence is so irrefutable, the Bush administration has subsequently decided the best defense is a good offense and not only has publicly CONFIRMED the story but put forth several bogus arguments in support of its actions.

For those who have been following the saga on the home game edition of "The War on Terror and Logic", it appears to be time once again to adjust your game pieces. For a refresher on the previous state of the game, you can consult the following posts:

http://boards.fool.com/Message.asp?mid=22793127 (#1-8)
http://boards.fool.com/Message.asp?mid=23296243 (#9)

FALLACY #10: The president has acted under statutory authorities under FISA and other acts and constitutional authority as commander-in-chief in approving wiretaps on persons within the United States. (A near direct quote of Condoleeza Rice on the December 18 edition of Meet the Press).

FISA is the Foreign Intelligence Surveillance Act of 1978. The Ashcroft era Justice Department created the following brief in 2002 describing what they termed the "false dichotomy" between foreign intelligence and law enforcement:


The core of the Bush Administration's argument would seem to boil down to the following paragraph in the above brief:

FISA does indeed contemplate the possible use in criminal proceedings of information derived from electronic surveillances. The Committee's 1978 report accompanying FISA recognized, moreover, that FISA surveillance would be * * * "part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnapping, and terrorist acts committed by or on behalf of a foreign power. Intelligence and law enforcement tend to merge in this area." The [1978] report made a particularly strong case in the counterintelligence area, noting that "foreign counterintelligence surveillance frequently seeks information needed to detect or anticipate the commission of crimes." In a later passage, however, the report states that "the primary purpose of electronic surveillance conducted pursuant to this chapter will not be the gathering of criminal evidence." Variations in judicial interpretations are thus not surprising.

In other words, because the supposed focus of our anti-terrorism efforts involves persons not acting on behalf of some specific foreign government, FISA restrictions do not apply.

What this really says is that George Bush and his administration believe they have the latitude to interpret the situations in which spying takes place and make their own determination of which United States laws apply and when.

This is utter garbage. We have a Constitutional republic designed to operate as a government of laws, not of men. If two different laws enacted by our government are found to somehow conflict with one another or with an authority or restriction in the Constitution, the Executive branch doesn't simply get to decide which law(s) they choose to honor and when, THE LAWS THEMSELVES are either thrown out or modified so that they are deemed to be constitutionally coherent. The president's obligations as Commander-In-Chief do not supercede any obligation to act under existing, published laws nor does the President (ANY President) have the authority to pass "secret" laws to provide cover for his actions or implement secret interpretations / enforcement policies of existing laws.

FALLACY #11: The wiretaps approved by President Bush were an attempt to close the "gap" identified by the 9/11 Commission regarding foreign nationals operating within the United States communicating with external parties.

References within the 9/11 Commission Report to FISA and its impacts begin on page 78 and state in part:

This law regulated intelligence collection directed at foriegn powers and agents of foriegn powers in the United States. In addtion to requiring court review of proposed surveillance (and later, physical searches), the 1978 act was interpreted by the courts to require that a search be approved only if its "primary purpose" was to obtain foreign intelligence information. In other words, the authorities of the FISA law could not be used to circumvent traditional criminal warrant requirements. The Justice Department interpreted these rulings as saying that criminal prosecutors could be briefed on FISA information but could not direct or control its collection.

The report doesn't cite a "gap" of potential surveillance targets who aren't explicitly addressed by foreign or domestic investigative powers, nor does it state that when such a gap exists, the NSA is allowed to spy domestically without any controls. It simply states that processes for sharing information about potential overseas risks learned from domestic criminal investigations and information learned by United States espionage efforts overseas involving persons physically within the United States require improvement. It does NOT state that existing requirements for warrants and court approval don't apply.

FALLACY #12: The President briefed members of the Senate Intelligence committee on these unauthorized wiretaps, therefore, it is OK.

FALSE. If Democratic and Republican members of the Senate Intelligence committee knew of these wiretaps and/or approved them, we simply have more elected officials who have utterly failed in their duty to uphold the Constitution and need to be removed from office immediately.


Folks, this is serious. We have a constitutional crisis at a point where:

  1. The President feels he can pick and choose which laws apply to him and has publicly admitted to at least 30 incidents where he approved domestic spying by the NSA in direct violation of US law.

  2. We have a Vice President who has publicly lobbied for the "right" to use torture and participated in secret meetings with oil company executives prior to 9/11 discussing strategies for a post-Saddam Iraq.

  3. We have a Secretary of State who actively participated in selling a bogus war in her role as National Security Advisor and recently went on record denying abuse and torture that agencies within our own government have already confirmed as fact.

  4. We have an Attorney General who, while acting as White House Counsel, drafted purposely vague directives on torture and would be involved in any criminal investigations of these activities.

  5. We apparently have leaders of both political parties in the House and Senate who knew about the domestic spying by the NSA and did nothing to stop it.

  6. We have press outlets who apparently knew about the domestic NSA spying over a year ago PRIOR TO THE 2004 ELECTION and failed to report it. For The New York Times, this is now its SECOND utter failure in its role as one of the nation's leading newspapers of record in properly informing the public -- the first being Judith Miller's stenography of Bush Administration justifications for going to war in Iraq.

There is NO written legal basis for these wiretaps being conducted by the NSA without a court order. NONE. We have a president who has publicly admitted criminal, impeachable offenses that go to the very heart of our principles of separation of powers and the rule of law. We have key players in the chain of succession who are all DIRECTLY complicit in these actions or other similarly dubious actions currently under criminal investigation.

I hope every American watches tonight's Oval Office address to the nation and hears firsthand their President's attempt to justify the violation of laws so crucial to the core of our government.



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