December 21, 2005
If Congress doesn't give us the authority we want we'll just make it up somehow:
QUESTION: Attorney General Gonzales, if the Senate does not reauthorize this provision for the Patriot Act, does the president have the authority under Article 2 and the authorization of use of force to give the go-ahead for these procedures on his own?
GONZALES: What I will say is we continue to have hope that these provisions will be reauthorized.
To the extent that they're not reauthorized, we will look at the Department of Homeland Security and other agencies throughout the government to see what authorities do exist. And we will do what we can do under existing authorities to continue to protect America.
At a press conference Gonzales basically just implied that Bush could do whatever the fuck he wanted no matter what Congress does with the Patriot Act.
We saved the world. I say we thread!
From Marty Lederman:
What's remarkable about Posner's Op-Ed is that his whole point is that the FISA law on this presently is (in his view) woefully inadequate to the task. He never even mentions the serious implication of this point, which is that, if he is right that FISA currently prohibits this -- and he is right -- then the Administration's data mining for the past four years has been a violation of criminal law. (No specious suggestions from Posner, who knows better, that this was authorized by the AUMF: He's forthright that the law needs to be amended.)
Posner may be right that current law is too restrictive. Congress should have that debate. But isn't it troubling that an esteemed federal judge seems so indifferent to the fact that, in the meantime -- before the Nation and the Congress have had the opportunity to debate Posner's proposal -- the Nation's Chief Executive is systematically authorizing criminal felonies?
This is the way Posner characterizes what's been happening: "The Defense Department is rushing to fill [the] gaps." I suppose that's one way of putting it. (I can imagine lawyers for criminal defendants with appeals to Posner's court: "Your honor, as you've written, this criminal restriction is very unwise and needs amending. My client was merely rushing to fill the statutory gap.")
Here's the most chilling line in Posner's column, taking euphemism to a new level: "It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives." That's Posner's kinder, gentler way of saying "It is no surprise that current federal laws, which unwisely criminalize this conduct, are being circumvented by the President's authorization to commit felonies."
Digby pointed this out a little while back but it's driving me crazy. Not Every Single Car Accident Or House Fire For Which There is Film Footage Is Really Deserving of Coverage By A National News Network.
Shorter Bush administration: we have to break the law because we're lazy.
"The whole key here is agility," he said at a White House briefing before Bush's news conference. According to Hayden, most warrantless surveillance conducted under Bush's authorization lasts just days or weeks, and requires only the approval of a shift supervisor. Hayden said getting retroactive court approval is inefficient because it "involves marshaling arguments" and "looping paperwork around."
Richard Posner's all for it:
The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.
The conservatarian movement is now officially dead.
December 19, 2005
Sen. Russell Feingold (D-Wis) responded to Gonzales' comments in an NBC interview this morning. "This is just an outrageous power grab," he said. "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States. "There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution. "The president has, I think, made up a law that we never passed," said Sen. Russell Feingold (D-Wis.)
- My interpretation of the law would be yes, that he did not have the legal authority to do this under the Afghanistan war resolution or under the general powers as commander-in-chief. The Congress in 1978 — and there’s been no effort to modify it in any significant way since that time — understood that circumstances might change, but it did not provide for any circumstance in which the president alone, without consulting any other legal authority, judicial authority, could waive the rights of U.S. citizens to be free from having their phones wiretapped.
John has a sensible theory,
though I think it's a mistake to limit it like this. The fact is we have no way of knowing who Bush was illegally spying on, and given how often they lie we clearly can't take them on their word for everything.
The apologists are incredible.
We don't know who the president was spying on. No matter what it was against the law, but even if you're so frightened by monsters under your bed that you think a little dictatorship is necessary at this time the administration has not given a satisfactory explanation about why this is necessary.
FISA warrants can be obtained, retroactively, up to 72 hours after the fact.
Will the press demand an explanation? Or will they just buy this bullshit. It's fucking incredible.
Gonzales argues we have a dictatorship.
Cheney says that if they had the authority they already had they could've stopped 9/11, despite doing nothing to do so, and that therefore they need to illegally spy on Americans even though they can legally do so.
Bush presser at 10:30.
Thanks, Republicans, for supporting this stuff.
Life?s a thread and we all play a part.
The thread I bear is scorching me.
December 18, 2005
December 18, 2005
Dear Democratic Colleague:
In his December 17 radio address, President Bush disclosed that, after September 11, 2001, he authorized the National Security Agency (NSA) to undertake certain activities that he said were designed to prevent additional terrorist attacks. The President argued that his action was “fully consistent with my constitutional responsibilities and authorities.”
An article in the December 16 issue of the New York Times, “Bush Lets U.S. Spy on Callers Without Courts,” has led to the inevitable conclusion that the President was referring to an authorization to allow the NSA to conduct warrantless electronic surveillance of U.S. persons.
When I was advised of President Bush’s decision to authorize these activities, I expressed my strong concerns verbally and in a classified letter to the Administration. The Bush Administration, however, made clear that it did not believe that Congressional notification was required and it also did not believe that Congressional approval was required to conduct these activities. I have attached a copy of my statement on the President’s disclosure.
Yesterday, several of my colleagues and I sent a letter to Speaker Hastert requesting that he immediately take steps to conduct hearings on the scope of Presidential power in the area of electronic surveillance, and that the Speaker and I jointly appoint a panel of outside legal experts to assist the committees involved in those hearings. I have attached this letter for your information.
I have also been advised by Congresswoman Jane Harman, Ranking Democrat on House Intelligence Committee, that the Bush Administration reversed its decision to brief the full House Intelligence Committee on the details of the activities to which the President referred in his radio address. The refusal to provide the Committee with the information necessary to discharge its oversight responsibilities is reminiscent of an Administration directive in October 2001, which severely restricted the flow of information from the intelligence community to the House and Senate Intelligence Committees. Congressional and public pressure forced the Administration to rescind that directive and I am confident that a similar result will eventually occur on the NSA surveillance issue.
We all agree that the President must have the best possible intelligence to protect the American people. That intelligence, however, must be produced in a manner consistent with our Constitution and our laws, and in a manner that reflects our values as a nation to protect the American people and our freedoms. Our suggestion for hearings and the appointment of an independent panel of experts is fully in keeping with that belief.
House Democratic Leader
You know there are quite a few American threads that are highly underrated. This, unfortunately, is not one of them.