The Bush Administration has conspired to circumvent the widely accepted law set down in the 70's. The "Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as 'plenary' -- a term defined as 'full,' 'complete,' and 'absolute.' These actions have been taken without the advice and consent of Congress.
WaPo
A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents. In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.
Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court. "I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system." Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."
Details of the actions taken are chilling. There is very little information about what excesses might have occurred, but the expense and effort suggests there are detailed dossiers on tens of thousands of American citizens, many whose only act was to attend an anti-war protest. From the WaPo article:
[...There exists] a three-year-old Pentagon agency, the size and budget of which are classified, with wide new authority to undertake domestic investigations and operations against potential threats from U.S. residents and organizations against military personnel and facilities. The Counterintelligence Field Activity, or CIFA, began as a small policy-coordination office but has grown to encompass nine directorates and a staff exceeding 1,000. The agency's Talon database, collecting unconfirmed reports of suspicious activity from military bases and organizations around the country, has included "threat reports" of peaceful civilian protests and demonstrations.
CIFA has also been empowered with what the military calls "tasking authority" -- the ability to give operational orders -- over Army, Navy and Air Force units whose combined roster of investigators, about 4,000, is nearly as large as the number of FBI special agents assigned to counterterrorist squads. Pentagon officials said this month they had ordered a review of the program after disclosures, in The Post, NBC News and the washingtonpost.com Web log of William M. Arkin, that CIFA compiled information about U.S. citizens engaging in constitutionally protected political activity such as protests against military recruiting.
In November, The Post disclosed an exponentially growing practice of domestic surveillance under the USA Patriot Act, using FBI demands for information known as "national security letters." Created in the 1970s for espionage and terrorism investigations, the letters enabled secret FBI review of the private telephone and financial records of suspected foreign agents. The Bush administration's guidelines after the Patriot Act transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies. The Post reported that the FBI has issued tens of thousands of national security letters, extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. Most of the U.S. residents and citizens whose records were screened, the FBI acknowledged, were not suspected of wrongdoing. The burgeoning use of national security letters coincided with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed.
Yesterday's acknowledgment of warrantless NSA eavesdropping brought the most forthright statement from the president that his war on terrorism is targeting not only "enemies across the world" but "terrorists here at home." In the "first war of the 21st century," he said, "one of the most critical battlefronts is the home front." Bush sidestepped some of the implications by citing examples only of foreigners who infiltrated the United States -- Saudi citizens Nawaf Alhazmi and Khalid Almihdhar, two of the Sept. 11, 2001, hijackers. But the most fundamental changes undertaken in the Bush administration's surveillance policy are the ones that have broadened the powers of the NSA, FBI and Pentagon to spy on "U.S. persons" -- American citizens, permanent residents and corporations -- on American soil.
[...]Those anxieties about unknown threats have ebbed and flowed since World War I, according to a bipartisan government commission chaired by Sen. Daniel Patrick Moynihan. President Woodrow Wilson warned against "the poison of disloyalty" and another loyalty campaign created black lists of accused Communists in the 1950s. In the 1960s and 1970s, the Army and the NSA collected files and eavesdropped on thousands of anti-Vietnam War and civil rights activists.
Congress asserted itself in the 1970s, imposing oversight requirements and passing the Foreign Intelligence Surveillance Act (FISA). Kate Martin, director of the Center for National Security Studies, said FISA "expressly made it a crime for government officials 'acting under color of law' to engage in electronic eavesdropping 'other than pursuant to statute.' " FISA described itself, along with the criminal wiretap statute, as "the exclusive means by which electronic surveillance . . . may be conducted."
No president before Bush mounted a frontal challenge to Congress's authority to limit espionage against Americans. In a Sept. 25, 2002, brief signed by then-Attorney General John D. Ashcroft, the Justice Department asserted "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority." The brief made no distinction between suspected agents who are U.S. citizens and those who are not. Other Bush administration legal arguments have said the "war on terror" is global and indefinite in scope, effectively removing traditional limits of wartime authority to the times and places of imminent or actual battle.
[...]By law, according to University of Chicago scholar Geoffrey Stone, the differences are fundamental: Americans have constitutional protections that are enforceable in court whether their conversations are domestic or international. Bush's assertion that eavesdropping takes place only on U.S. calls to overseas phones, Stone said, "is no different, as far as the law is concerned, from saying we only do it on Tuesdays."
Michael J. Woods, who was chief of the FBI's national security law unit when Bush signed the NSA directive, described the ongoing program as "very dangerous." In the immediate aftermath of a devastating attack, he said, the decision was a justifiable emergency response. In 2006, "we ought to be past the time of emergency responses. We ought to have more considered views now. . . . We have time to debate a legal regime and what's appropriate."
So what do we know about how this eavesdropping plays out? Homeland Security has been charged with making a list of US targets for harassment and intimidation. Inexplicably, many Neo-Nazi groups are absent from the list, as are Hamas, Islamic Jihad, and groups who are quite capable and even have a history of launching a domestic attack. But they are targeting Animal Liberation Front (ALF) and the Earth Liberation Front (ELF) even thought they openly promote nonviolence toward human life.
Seeing the Forest reports on a chilling example of library records bringing an innocent to the attention of the FBI.
Yesterday we learned that the government is "eavesdropping" on our conversations and e-mails. Meanwhile, in a post titled One Nation Under Surveillance: 'The Little Red Book' can still get you in trouble, Plutonium Page [at Daily Kos] writes about a student who gets questioned by Federal agents, because he asked at the library to see Mao's "Little Red Book." I want to write about the chilling effect this will have on people. I have a "Little Red Book" that I've had since the 60's. I thought hard about writing that here. The first comment in the Daily Kos post is "Boy, we all who post here regularly better watch our back..Here comes the Brother." A couple of comments later, "I'm sure there are people monitoring all of the left of center and peace oriented blogs and web sites." Many, many more comments along these lines. These are the first things that come into people's minds, "This means I am being watched." [MORE]
Indeed, any blogger, emailer, even any reader on the Internet can have his web visits monitored and logged for human review. The NSA is listening everywhere. Local National Guard and Emergency Management agencies are picking up leads and passing them on to FBI offices for follow-up.
Guardian Unlimited has a piece written by "the celebrated critic Harold Bloom, despairing of contemporary America, turns to his bookshelves to understand the trajectory of his country."
Huey Long, known as "the Kingfish," dominated the state of Louisiana from 1928 until his assassination in 1935, at the age of 42. Simultaneously governor and a United States senator, the canny Kingfish uttered a prophecy that haunts me in this late summer of 2005, 70 years after his violent end: "Of course we will have fascism in America but we will call it democracy!"
I reflected on Huey Long (always mediated for me by his portrait as Willie Stark in Robert Penn Warren's novel, All the King's Men) recently, when I listened to President George W Bush addressing the Veterans of Foreign Wars in Salt Lake City, Utah. I was thus benefited by Rupert Murdoch's Fox TV channel, which is the voice of Bushian crusading democracy, very much of the Kingfish's variety. Even as Bush extolled his Iraq adventure, his regime daily fuses more tightly together elements of oligarchy, plutocracy, and theocracy.
At the age of 75, I wonder if the Democratic party ever again will hold the presidency or control the Congress in my lifetime. I am not sanguine, because our rulers have demonstrated their prowess in Florida (twice) and in Ohio at shaping voting procedures, and they control the Supreme Court. The economist-journalist Paul Krugman recently observed that the Republicans dare not allow themselves to lose either Congress or the White House, because subsequent investigations could disclose dark matters indeed. Krugman did not specify, but among the profiteers of our Iraq crusade are big oil (House of Bush/House of Saud), Halliburton (the vice-president), Bechtel (a nest of mighty Republicans) and so forth.
All of this is extraordinarily blatant, yet the American people seem benumbed, unable to read, think, or remember, and thus fit subjects for a president who shares their limitations.
[...]Yet Emerson bet the American house (as it were) on self-reliance, which is a doctrine of solitude. Whitman, as person and as poetic mask, like his lilacs, bloomed into a singularity that cared intensely both about the self and others, but Emersonian consciousness all too frequently can flower, Hamlet-like, into an individuality indifferent both to the self and to others. The United States since Emerson has been divided between what he called the "party of hope" and the "party of memory". Our intellectuals of the left and of the right both claim Emerson as ancestor.
[...]In September, the US secretary of state Condoleezza Rice was quoted as saying at Zion Church in Whistler, Alabama: "The Lord Jesus Christ is going to come on time if we just wait."
Yet most of America sleeps without any significant awareness of the creeping threat of fascism in America. We have a president who believes he has absolute power to whatever he wants to to protect America. He has stepped over many laws, intruded into personal phone calls, emails, and snooped on what American's are reading, claiming to protect America. Like Nixon before him, he's most closely protecting himself and greatly endangering our civil liberties that we have largely on paper, but not in practice.
I'm reminded of Edward R Murrow's comment about Senator Joe McCarthy in the great must see movie Good Night and Good Luck.
We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men - not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular. - Edward R. Murrow
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