Lawyers ain't so smart after all

Subject: Lawyers ain't so smart after all
From: GUEST,AR282
Date: 30 Dec 05 - 11:00 PM

[David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations. They wrote the following defense of Bush and his use of domestic spying. I added in my own critique of their arguments. Not that most people couldn't see through something this transparent.]

>>>>SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States. This program was adopted by direct presidential order and was subject to review every 45 days. Judicial warrants for this surveillance were neither sought nor obtained, although key members of Congress were evidently informed. The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.<<<<

First of all, what are the criteria for determining those who are "suspected members of Al Qaeda"? Are those criteria legal and viable? How would they prevent an innocent person from becoming a terrorist suspect? We don't know simply because the administration is silent on the issue and no judge has had an opportunity to rule on it. What we do know is that anyone whose life is ruined by NSA and/or CIA snooping will have no recourse to sue for damages in a court of law.

As for "key members of Congress" being "evidently informed," we now know most were ignorant of exactly what was transpiring between the White House and the intelligence community. All congressional members in the know, a mere handful, were sworn to secrecy and therefore not at liberty to discuss the matter with anyone—even one another!! At least one congressional member, Senator Rockefeller, wrote a letter to Bush complaining that the secret briefings raised more questions than they answer. The whole deal appeared to be nothing more than a hoodwink job pulled off by spooks that specialize in such things.

>>>>The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view.<<<<

Conveniently, the authors do not mention a single case that acknowledges and affirms this presidential constitutional authority. Even past presidents who wanted such authority went through Congress and were rebuffed but they obeyed the ruling. Bush avoided the courts and Congress for precisely that reason—he knew it would not be allowed and he didn't want to just ignore them because of how it looks. There are no laws on the books that permit searches or wiretaps of American citizens without a warrant. No court in the nation would ever think to sanction such actions. What court worthy of the title would prefer to cut itself out of this most controversial issue with such far-reaching legal ramifications that affect not only Americans but every person in the world with a cell phone or a computer??

>>>>The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad.<<<<

Needless to say, this is pure bullshit. The 4th amendment reads thusly:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Not a word about this amendment applying only to detect crime or to build criminal prosecutions. A wiretap on my phone without a warrant constitutes and unreasonable search. That's all that needs to happen for the 4th amendment to be violated and the amendment is very clear that this right "shall not be violated."

Rivkin and Casey stated that "[t]he purpose here is not to detect crime…but to identify and prevent attacks on American interests…" Presumably, by "detect crime" they mean one that has already been committed. But again, there is not a word about this to be found in the 4th amendment. The Constitution was written primarily to avoid the establishment of a dictatorship or totalitarian state and the 4th amendment is one of the strongest statements concerning the matter. Yet Rivkin and Casey interpret this amendment such that it cannot defend against the worst forms of dictatorship. If it only applies to a crime already committed, then legally Bush could have your door knocked down and you dragged out into the night and stuffed in the trunk of a car on the way to some undisclosed location and he could do this on the grounds that they had reason to believe you were about to commit a crime based on statements you made that were obtained by secret wiretaps. Rivkin's and Casey's interpretations of the 4th amendment are as unwarranted as the NSA's spying activities.

>>>>The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.<<<<

This statement is a justification for all the spinning, denying and lying the administration will be engaging in to stay out of hot water. Of course, the administration will vigorously resist attempts to curb its abuses of power. What choice does it have?

>>>>After all, even the administration's sternest critics do not deny the compelling need to collect intelligence about Al Qaeda's plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush's decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act. <<<<

They say this as though challenging the legality is a sure sign of a devious mind.

>>>>In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has "probable cause" to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.<<<<

And had Bush done so, there would be no controversy now. We do not so much challenge what he did but how he went about it because it seems to be very devious attempts to skirt the Constitution which violates his oath of office.

>>>>Although the administration could have sought such warrants,<<<<

Translate as "should have".

>>>>it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps.<<<<

More bullshit since FISA allows for a wiretap to be put in place 72 hours before a warrant is requested. The NSA would not have been the slightest bit bogged down.

>>>>Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance.<<<<

Bullshit yet again since the Foreign Intelligence Surveillance Court (FISC) approves virtually every request for a warrant. Of the thousands that have been submitted to FISC since 1978, when FISA was first established, only a half-dozen or so requests have been turned down. FISA is, in fact, virtually the very rubber stamp that Rivkin and Casey insist it is not.

>>>>More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use.<<<<

Again, the 72-hour grace period between setting the wiretap and requesting a warrant to authorize it prove that Rivkin and Casey are grasping. Moreover the immediacy attributed to intelligence gathered from terrorists is being grossly over exaggerated here to the point of total absurdity. Coordinated, devastating attacks require careful planning and training and do not and cannot happen on the spur of the moment.

>>>>Indeed, it is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.<<<<

This is basically saying that all's fair in love and war. I think the American people will be highly unreceptive to being told, "Live with it, baby, because that's just how it is in the middle of a war." Especially a war many are doubting should ever have happened and that we were misled into.

>>>>Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."<<<<

Yes, FOREIGN surveillance. Not surveillance of his own fellow citizens with no judicial approval. The 4th amendment strictly forbids that and there is no getting around it. FISA did not do away with warrants in such cases but actually demands them. A warrant does not have to be granted before an operation begins, but a warrant must be obtained at some point. Bush violated FISA.

>>>>In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization "to use all necessary and appropriate force" against those responsible for the Sept. 11 attacks "in order to prevent any future attacks of international terrorism against the United States." These words are sufficiently broad to encompass the gathering of intelligence about the enemy, its movements, its abilities and its plans, a core part of the use of force against Al Qaeda and its allies. The authorization does not say that the president can order the use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush is barred from doing so.<<<<

This argument again ignores the 4th amendment. The president may do what is necessary and appropriate including dropping bombs but he has taken an oath to protect and defend the Constitution and therefore cannot violate or ignore it. Warrantless surveillance of U.S. citizens no matter what the reason would therefore be deemed inappropriate.

>>>>The fact that the statutory language does not specifically mention intelligence collection, or that this matter was not raised by the White House in negotiations with Congress, or even that the administration had sought even broader language, all points recently raised by former Senator Tom Daschle, is irrelevant.<<<<

This argument can only be termed bizarre. If Bush does not need to tell Congress explicitly what he plans to do, why then go to Congress at all? This is the same argument Bush used to defend his actions but if he has this power to do as he sees fit at any time in order to protect the nation, he wouldn't need a Patriot Act and his near-frantic efforts to save it are pointless.

>>>>Overall, this surveillance program is fully within the president's legal authority,<<<<

In fact, he has no legal precedent at all. You'd think two lawyers could quote just one.

>>>>is limited in scope (involving communications to or from overseas related to the war against Al Qaeda),<<<<

Or so they say. Since Bush bypassed the courts, it is impossible to determine just how limited the program is because no judge has looked at it and ruled on it. We already know that it is much wider than Bush has thus far admitted to. There is, in fact, no reason to believe the program focused solely on international calls. Congressional or judicial oversight would be necessary to make that determination and there was none because it was kept secret from them.

>>>>and is subject to stringent presidential review.<<<<

I can only wonder if Rivkin and Casey are wrote this with a straight face. Since it is the president's executive order to spy domestically, his own review is likely to be a wee bit favorable to his position.

>>>>The contretemps its revelation has caused reveals much more about the chattering classes' fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching.<<<<

Here Rivkin and Casey reveal what they and the Bush administration truly are—elitists who believe anything and everything they do is permissible. The contretemps here has been the spying itself. For those who don't know what "contretemps" means, it is an embarrassing incident or mishap. Notice how they apply it—to those complaining about Bush's unchecked actions. Those who care about their freedoms and are vocal about it are embarrassing according to Rivkin and Casey and have relegating themselves as members of the "chattering classes" (apparently unlike the silent masses who shut up and do what they're told like good little loyal subjects). Notice too how they changed "big government" to "strong government"—understandable since conservatives have run for over two decades on the anti-big govt gravy train. Never has govt been as big and bloated as under Bush. The amalgam of 33 govt bureaus to form the monolithic Department of Homeland Security is a huge bureaucratic quagmire—a beast so wastefully and unnecessarily huge that it can barely move under its own weight.

>>>>The Constitution's framers did not vest absolute power in any branch of the federal government, including the courts, but they did create a strong executive and equipped the office with sufficient authority to act energetically to defend the national interest in wartime. That is what President Bush has done, and nothing more.<<<<

Again, the idiocy of this argument is that plenty of past presidents have served during wars and never resorted to anything as lawless as warrant-less wiretaps of American citizens with the exception of Richard Nixon and we know what happened to him. Rivkin and Casey, like all neocons, inflate the dangers of the terrorist threat in hopes of scaring the populace into allowing them to expand presidential powers to that of despot (which they have always believed in) and divide the world into two distinct segments: pre- and post-9/11. Anything pre-9/11 simply doesn't apply anymore. Even, apparently, the Constitution.

Subject: RE: Lawyers ain't so smart after all
From: GUEST,AR282
Date: 30 Dec 05 - 11:01 PM

Whoops, sorry, I put this in the wrong folder!

Subject: RE: BS: Lawyers ain't so smart after all
From: JohnInKansas
Date: 31 Dec 05 - 12:57 AM

There are precedents for the argument that the Constitution protects only "American Persons." There is some vagueness about whether this means only US citizens, or includes others legally in the US or acting on its behalf. Some recent Federal Court decisions have taken a broad interpretation, as in the mandate that even illegal aliens are entitled to send their kids to public schools.... There have been no publicly known(?) high court decisions that provide much guidance in other situations.

There are ample instances in which Presidents have "exceeded their Constitutional Authority" and mostly got away with it.

I believe it was the current issue of Smithsonian Magazine that has a short article asserting that Lincoln's "Emancipation Proclamation" was an ILLEGAL action on his part. It imposed a new law without participation of the Legislature, and further it changed Consitutional Law since at the time the US Constitution and Supreme Court case precedents specifically said that slavery was Constitutionally legal (in some parts of the US).

An earlier issue of the same magazine examined the attempt by Franklin Roosevelt to "strip the power" of the Supreme Court - by Executive Order and by advocating legislation - when it appeared that the Court was likely to declare that his whole "New Deal" package was a violation of the Constitution. (It probably was, according to precedent then.) The US Legislature has made several attempts at the same sort of thing more recently; and some State Legislatures appear to have had some "success" with respect to State Courts.

The Patriot Act, and the establishment of the FISC contain some questionable features, and it's gratifying that Congress has delayed extension of the Patriot Act. It needs more serious examination, but I'm not sure real hope is justified.

The assertion by the Administration and by others that the President could have gotten approval from the FISC for what he "authorized is clearly either a LIE or is based on ignorance (or on deliberately attempting to mislead the public?).

The FIS Court itself has, in publicly known advisories, specifically questioned the methods the President authorized, and opinions from individual current members clearly indicated that a majority of the FSIC would find that those actions were not acceptable.

What the President "authorized" was the recording of all traffic through particular communications trunk switches, so that computer "pattern searches" could be used to sift through all communications that went through a communication center in order to look for:

1. Evidence of possible plans for terrorist actions, and
2. Identification of persons who might be "terrorist agents."

In addition, the NSF (and possibly other agencies) exerted pressure on US (and possibly foreign) communications companys to reroute massive amounts of "foreign communications" through trunk switches located in the US and/or in specific foreign locations where the NSF could access them easily.

The fundamental question perhaps is whether electronic communications of the kind being recorded and examined are a "private thing" protected by the Constitution, or because of the ease with which it's accessible - and known to be accessed - it should be considered to be similar to "conversations in public" which may generally be legally recorded and used in court actions.

A few Federal Court decisions have held, or appear to have applied the interpretation, that internet communications are not "private" in the sense of the Fourth Amendment. There are few cases that offer clues to how the Courts would interpret the "telephone" converstations that are the main object of the recent NSF surveillance.

There are massive numbers of cases in which Federal Courts have held that situations where most people would assume a "right of privacy" are NOT PRIVATE in the sense of the 4th Amendment. (Most of these involve prosecution of "morals" violations, but they are citable precedent.)

Altogether a messy situation.

John

Subject: RE: Lawyers ain't so smart after all
From: Rapparee
Date: 31 Dec 05 - 10:47 AM

Moreover, Lincoln suspended Habeas Corpus. Madison signed the (later overturned) Alien and Sedition Acts. FDR interned American citizens of Japanese, Italian, and German ancestry, some of whom were second and even third generation citizens.

I have long wondered about the "privacy" of Internet communications, given that they travel through several "nodes" to reach a destination and could be intercepted at any of the nodes. In the military we were taught that message security was in the following order, most secure to least:

1. Written or oral message delivered in person.
2. Written message delivered by messenger.
3. Written message delivered by postal service.
4. TTY.
5. Telephone.
6. Radio.

"Written" included coded messages.

To that I would add the Internet to the telephone, or perhaps even lower.

Basically, if you don't want it known, deliver it in person. (This is one way that the Germans were able to surprise the Allies at the Battle of the Bulge -- the CG didn't trust even the Enigma machine and sent written orders by couriers. Of course, Allied complacency played a large role as well.)

Subject: RE: Lawyers ain't so smart after all
From: GUEST
Date: 31 Dec 05 - 10:51 AM

Was the President acting in the best interest of the United States by taking this action?

Subject: RE: Lawyers ain't so smart after all
From: GUEST,AR282
Date: 31 Dec 05 - 11:37 AM

>>Basically, if you don't want it known, deliver it in person. (This is one way that the Germans were able to surprise the Allies at the Battle of the Bulge -- the CG didn't trust even the Enigma machine and sent written orders by couriers. Of course, Allied complacency played a large role as well.)<<

But this flies in the face that these electronic communications must be gathered without time to get warrants because of the incredible speed with which terrorist intelligence must be processed. Terrorists are likely doing exactly as you suggest--delivering messages in person. No wonder the neocon dream that technology would enable America to govern the world isn't quite working out.

Subject: RE: Lawyers ain't so smart after all
From: GUEST,Geoduck
Date: 31 Dec 05 - 11:38 AM

Would Clinton have done such a thing?

What would Clinton do? See below:

WASH POST, July 15, 1994, "Administration Backing No-Warrant Spy Searches": Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order."

Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."

Secret searches and wiretaps of Aldrich Ames's office and home in June and October 1993, both without a federal warrant.

Government officials decided in the Ames case that no warrant was required because the searches were conducted for "foreign intelligence purposes."

Government lawyers have used this principle to justify other secret searches by U.S. authorities.

Subject: RE: Lawyers ain't so smart after all
From: GUEST,AR282
Date: 31 Dec 05 - 11:57 AM

>>The fundamental question perhaps is whether electronic communications of the kind being recorded and examined are a "private thing" protected by the Constitution, or because of the ease with which it's accessible - and known to be accessed - it should be considered to be similar to "conversations in public" which may generally be legally recorded and used in court actions.<<

It's not what is being listened to so much as why. What safeguards do I have that won't suddenly make me a "terrorist suspect"? If they were searching for child-perdators--fine. There is a very specific type of communication being searched for. The problem here is, what exactly constitutes a suspicious communication?

>>A few Federal Court decisions have held, or appear to have applied the interpretation, that internet communications are not "private" in the sense of the Fourth Amendment. There are few cases that offer clues to how the Courts would interpret the "telephone" converstations that are the main object of the recent NSF surveillance.<<

It's not the privacy that is so much at issue as the legality of Bush's order to begin with. Even if they are not private, is he authorized to order people to examine and gather those communications they think are "of interest" and that the companies that own the means of transmitting those communications be ordered or bullied into participating?

>>There are massive numbers of cases in which Federal Courts have held that situations where most people would assume a "right of privacy" are NOT PRIVATE in the sense of the 4th Amendment. (Most of these involve prosecution of "morals" violations, but they are citable precedent.)<<

Yes, but what Bush is doing is a whole different animal. Does he have the authority to order warrantless wiretaps/searches? That he would want to monitor communications is not at issue. The govt should be allowed to because it does serve a public good more than it does any harm--when established legal channels are employed. Does Bush have the authority to say, "Forget about private or non-private--that's not important. I have a war to fight and a country to protect and I'll do whatever the hell I have to and no one is going to stop me." Because is what Bush is essentially doing that is how the 4th amendment is being violated--because it is being skirting under the ever popular "national security" label.

>>Altogether a messy situation.<<

It will get much messier. Just when the pro-Bush legal beagles and pundits work out an argument totally justfying Bush monitoring virtually all calls coming into and leaving the country, it will be revealed that they monitored calls inside the country too. And Bush will once again say, "Well, obviously, I need to be able to do that in order to protect you from another attack. You think terrorists don't make calls to each other inside the U.S.? Common sense, people!" And then what?

Subject: RE: Lawyers ain't so smart after all
From: GUEST,AR282
Date: 31 Dec 05 - 12:11 PM

>>Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."<<

What does monitoring Aldrich Ames have to do with whether the president can order a massive monitoring of all calls coming in or out of the US and strongarm the cooperation of the communications corporations for prolonged periods without obtaining judicial or legislative approval or even keeping it secret from them?

How does tracking one suspected spy who was deduced to be the leak compare to a situation where the fundamental check-and-balance system of our govt has been willfully subverted?

Subject: RE: Lawyers ain't so smart after all
From: Rapparee
Date: 31 Dec 05 - 04:41 PM

Geez, if you think that your communications are private you're living in a dream world! Use a cell phone and it can be monitored as easily as the radio link it actually is. Use a landline and it can be monitored from an airplane 30,000 feet up -- my brother did this for the USAF when he flew over Vietnam during the Late Unpleasantness there. Use the Internet and it can be interrupted anywhere along the line. A "bionic ear" type listening device can "hear" you a couple hundred meters away -- and a laser can record the vibrations your voice creates in the window glass and these can be translated back into speech.

You live with it.

Whether or not the Prez was right to authorize such is another story entirely....

Subject: RE: Lawyers ain't so smart after all
From: Once Famous
Date: 31 Dec 05 - 04:57 PM

Guest, AR282 you have obviously received an A in your Paranoi 101 class.

Subject: RE: Lawyers ain't so smart after all
From: GUEST,AR282
Date: 31 Dec 05 - 06:31 PM

>>Whether or not the Prez was right to authorize such is another story entirely....<<

Exactly. I'm not concerned that he monitored calls. I'm concerned that he is not carrying out his oath but seems to look for excuses to sidestep it and when he is not likely to get the legal nod, he just bypasses that part and does it anyway. That seems to be making a mockery of our Constitution and it has to be investigated and a determination made.