Wash. Post falsely reported that DeWine proposal would require congressional authorization for extended warrantless spying
SUMMARY: A Washington Post article reported that a recent GOP bill would require the Bush administration "to convince" two congressional subcommittees that individual cases of extended warrantless domestic surveillance are necessary, implying that the eavesdropping would not continue unless the committees were convinced. To the contrary, under the bill, the subcommittees do not have the authority to approve or reject the continued surveillance.
In a March 17 article, Washington Post staff writer Charles Babington reported that a recent Republican bill would require the Bush administration "to convince" two congressional subcommittees that individual cases of extended warrantless domestic surveillance are necessary, implying that the surveillance would not continue unless the committees were convinced. Babington's suggestion that the administration must, in each case, obtain permission from these panels is false. To the contrary, under the bill, the subcommittees do not have the authority to approve or reject the continued surveillance.
On March 16, Sen. Mike DeWine (R-OH), along with Sens. Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the so-called "Terrorist Surveillance Act of 2006." In his article, Babington reported that the bill would allow President Bush's warrantless domestic eavesdropping to continue, but it would require that the administration "justif[y]" individual instances of extended surveillance to newly-formed, seven-member House and Senate subcommittees and "convince" these members of Congress that such operations are necessary:
The Bush administration could continue its policy of spying on targeted Americans without obtaining warrants, but only if it justifies the action to a small group of lawmakers, under legislation introduced yesterday by key Republican senators.
[...]
The bill would allow the NSA to eavesdrop, without a warrant, for up to 45 days per case, at which point the Justice Department would have three options. It could drop the surveillance, seek a warrant from FISA's court, or convince a handful of House and Senate members that although there is insufficient evidence for a warrant, continued surveillance "is necessary to protect the United States," according to a summary the four sponsors provided yesterday.
In fact, the amendment does not require the Justice Department "to convince" the newly-formed "terrorist surveillance subcommittees" that the warrantless eavesdropping is necessary. Rather, it requires the Attorney General to "certify ... under oath" to the House and Senate panels why he has decided to circumvent court approval in these cases.
The Foreign Intelligence Surveillance Act of 1978 (FISA) requires that the government seek a court warrant in order to conduct domestic surveillance for foreign intelligence purposes. DeWine's bill allows surveillance of U.S. residents without court approval for a period of 45 days. Under his proposal, if the administration seeks to conduct this surveillance for a period longer than 45 days, it has two options -- either seek a warrant or swear an oath to the subcommittees:
Every 45 days, the Attorney General must also review the surveillance of any individual targets under the program. -- If, at any time, the Attorney General determines that he has sufficient evidence to obtain a FISA warrant, he must seek a FISA warrant to continue surveillance on that target. -- If the Attorney General determines that he does not have sufficient evidence to obtain a FISA warrant, but nonetheless wants to continue surveillance, then he must certify in writing and under oath to the Terrorist Surveillance Subcommittees the following four things: 1) that all previous surveillance complied with this Act; 2) that there is insufficient evidence to obtain a warrant under FISA; 3) that the President has determined that continued surveillance of the target without a court order is necessary to protect the United States, its citizens, or its interests; and 4) that continued surveillance is being undertaken in a good faith belief that it will result in the acquisition of foreign intelligence information.
Nowhere in the bill are the subcommittees granted the authority to take adverse action if they disapprove of the administration's rationale in any given case. Indeed, when asked by a reporter at a March 7 press conference "what leverage" Congress would have over administration decisions to continue warrantless surveillance after 45 days, DeWine responded, "[I]t's the same leverage we have in any other type of oversight." He noted that Congress would have the "power of the purse" and the power to "change legislation ... de-authorizing the program, altering the program." In other words, DeWine acknowledged that Congress' recourse if it opposes an individual act of surveillance is legislation, and not, as Babington suggested, simply denying the administration permission to conduct that surveillance.
Where is the independent judicial oversight?
This is the type of items I like to see on MMFA. Most media sources would lead one to believe that the "compromise" legislation fixes the oversight issue on the NSA program. However, the legislation does nothing to create oversight, but only creates the appearance of oversight. Note that the legislation essentially substitutes the executive branch's "belief" for the 4th Amendment's "probable cause."
CD
that once upon a time, executive agencies through their police powers routinely ignored search and seizure restrictions. It was not until the Supreme Court began making the product of searches inadmissible in criminal trials that much attention was paid to the restrictions in the Bill of Rights (which the framer's naively thought was sufficient to bar such conduct). Bush's solution for this, like his solution for prisoners, is to avoid courts altogether. Until Sixty Minutes and people like it begin to teach the portion of the public that doesn't understand the deficiencies of the existing statute, let alone those being created to retroactively shield the President and his highest officers from impeachment and/or conviction of for ordering felonious conduct by civilian employees, almost half of the country will continue to say "I haven't done anything wrong, why worry?" A lot more people have died or been maimed creating and sustaining the Constitutional form of Government that treats the Bill of Rights as hallowed than have died or been injured at the hands of terrorists. It is not right to forget those who have made their sacrifices by bowing to fear.
I would be happy to see several "60 Minutes" style exposes on this executive breach of law and Congressional snowjob. The media have no interest in educating the public because BushCo. have effectively misframed the debate and purpose of the FISA laws. Maybe we'll see some investigations in 2006.
Imagine if Clinton had suddenly declared the perjury laws out of date and decided to redraft them retroactively. The Republican Congress's outcry would've been deafening! That's precisely the sleight of hand trick Bush is pulling. Not only does the Republican Congress comply, pooh-pooh to that antiquated 4th Amendment, MSM hitmen in their employ are trumping the role of Congressional oversight, throwing a blanket of lies over the issue and calling it a closed matter. Shameless to the end. Our end I'm afraid.
- What happened to the FISA judges? - pick of the litter
At the onset of the NSA warrantless search program the president received from the FISA court the following..."We take for granted that the President does have that authority (warrantless searches for gathering foreign intelligence) and, assuming that is so, FISA could not encroach on the President's constitutional power."
President Bush sought the advice of legal scholars, the U.S. Department of Justice and the FISA court and they agreed that he had the constitutional authority to perform the warrantless searches...and he has used that authority to perform his duty.
Wesley, you contention that the FISA court opinion supports the NSA program is flat out wrong. Just as supporters of the program have, you take a quote from the courts opinion out of context. However, you even go one further, suggesting that the case specifically addressed the NSA program.
The question before the quote had nothing to do with the specifics of whether the warantless NSA wiretaps. As the next sentence of the opinion states, "The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable." I.e., the question was whether certain wiretaps performed under FISA were consitutional. (On that question, the court found in the affirmative.) The question was not whether NSA wiretaps that circumvent FISA were legal.
What supporters supporters of the NSA program have argued is that the statement by the court supports the notion of inherent presidential constitutional power, and that FISA is a unconstitutional encroachment on that power. However, the court did not find that FISA was an encroachment, but did uphold FISA.
To explain the apparent contridiction, attorneys with the Congressional Research Service suggested two possible interpretations of the court's statement:
1) The court was referrring to inherent authority to conduct surveillance activities "which were intentionally excluded from FISA when it was encated."
2) The court was referring to the "excercise of inherent presidential authority within the FISA structure."
Prior court cases have also supported the idea of inherent presidential power to conduct foreign surveillance. The FISA appeals court noted four cases, but failed to cite them specifically. However, the cases were clearly pre-FISA, thus could not address the constitutionality of FISA.
In summary, the president may indeed have inherent power outside the scope of FISA. However, FISA is not viewed as restrictive on those powers, but an expansion of presidential powers. Surveillance that falls under FISA, must follow its provisions.
CD
This has been brought up and dealt with already at least half a dozen times. That case was about whether or not FISA had gone too far creating a wall between the foriegn intelligence gathering and use of information gathered in criminal prosecutions. Specifically that paragraph dealt with the Troung ruling which was pre FISA. The point was that Troung dealt with a pre FISA ruling and in the ABSENCE of a specific law, rather than deal with whether the president had inherent authority to act, rather than in VIOLATION of a specific law (FISA) they would make the assumption he did and address their specific strictures. Other places in that SAME ruling they said theyhad to deal with the strictures the fourth Amendemnt created. NOT that the President could ignore the fourth amendment. One more time you are a day late and a dollar short. This DICTA, not ruling, in NO WAY is saying the President is now Pharoah, and has magical invisible powers to ignore the law as he sees fit.
WESLEY presents a phrase from the FISA directive to the president, regarding the president's authority to wiretap FOREIGN sources of information.
This has NOTHING to do with what the President has been doing. He has been wiretapping AMERICAN CITIZENS without a warrant.
What the court has to say about THIS practice:
"The statute creates an affirmative defense for a law enforcement agent acting within their official duties and PURSUANT TO A VALID COURT ORDER. Presumably, such a defense IS NOT AVAILABLE to those operating exclusively under presidential authorization."
"Presumably", because the question had (HAS) never been placed before the court (YET, and Bush is doing everything possible to see that no court HEARS this issue, because he will LOSE): does the president's "exclusive authorization" provide an "affirmative defense" to those conducting warrantless searches of American Citizens? The answer is NO; we have a 4th Amendment which requires BY LAW (which the President is sworn to uphold) warrants to be obtained for such searches of American citizens.
The question is not whether Bush's actions have been legal and constitutional ... they have demonstrably NOT. The question is why supporters, like WESLEY, are expending great effort to try to jettison our constitutional rights, which will place us under dictatorial rule? Why are some humans predisposed to being dominated, and have no use for FREEDOM?
One would find such "useful idiots" as Wesley in the Old Soviet Union, or perhaps in Cuba today, stating how it's just fine to TRUST the government, and the citizens shouldn't worry about losing their piddling rights. The GLORIOUS LEADER will take care of us all, like his children!
We should recognize such Anti-American talk for what it is: an attempt to subvert our Constitution and plunge our population under the control of tyranny. Nothing less.