Bush "White Paper" Says Neither Congress Nor FISA Can Stop Him From Domestic Electronic Spying
by Steve
Mr. Bush, why is this man still alive? Oh, I see. He's needed for your legal argument of unchecked power.
Geez, I go away on business for two days, and come back tonight to see the trolls fire up the "Clinton-did-it-with-Echelon" garbage as a faulty defense. Well, at least you guys are consistent with your nuttery.
To defend itself and go back on the attack over the NSA spying mess, the Administration has decided that it is simply better to claim something that isn’t true and has been refuted several times in the last two weeks. The Justice Department came out with a “white paper” late today (remember the last time this administration issued a white paper, and how credible that one was?), which argued that Bush had the authority for warrant-less electronic surveillance because:
1) The 2001 Authorization to Use Military Force said he could (it didn’t and they’re lying); and
2) If you don’t buy that one, then Congress simply doesn’t have the authority to stop us here.
I kid you not.
On the first point, the Congressional Research Service has already debunked the claim that the AUMF gave Bush the authority to do warrant-less electronic surveillance on Americans here at home. The CRS has also said that Bush broke the law by failing to brief congressional intelligence committees, and that his legal justifications didn't hold up either. Now the White House has decided to argue that FISA and Congress cannot stop the president from waging a war of his own definition.
In the past two weeks, the nonpartisan Congressional Research Service has released two reports suggesting significant legal flaws in the president's program. One analysis concluded that the warrantless surveillance effort directly conflicts with Congress's intentions in passing the FISA law. It also found that the rest of the administration's legal justifications were "not as well-grounded" as the administration asserted.
A second CRS report, released Tuesday, concluded that the administration appears to have violated a national security law by failing to brief the full House and Senate intelligence committees on the program in 2001. The administration limited its briefings instead to the two most senior members on each committee.
In its legal analysis, the Justice Department contends that "the broad language" of Congress's authorization to use force "affords the President, at a minimum, the discretion to employ the traditional incidents of the use of military force," including the warrantless surveillance program.
The Justice Department also argues that the inherent presidential powers in Article II of the Constitution -- to wage war -- cannot be abridged or impended in the context of a global terrorism fight. Justice lawyers say they believe that the president's powers are consistent with FISA but that if there is any question of a conflict, the president's powers trump FISA.
(Notice anything a little too convenient about that argument? In other words, as long as we are in a global terrorism fight, Bush gets to do whatever he wants. So if you can keep Osama alive, and keep your enemy around instead of kill it when you have the chance, you maintain your "get out of jail free" card.)
But James Bamford, an expert on U.S. intelligence and the author of two books considered primers on the NSA, said the Justice Department's arguments are refuted by Congress's clear intent in 1978 to block warrantless surveillance and by its lack of intent to suggest such surveillance in October 2001.
"You could review the entire legislative history in the authorization to use military force and I guarantee you won't find one word about electronic surveillance," Bamford said. "If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again."
On the second point, Abu Gonzales came out today and said that neither Congress nor the FISA can stop Bush from doing what he wants in the name of national security.
Nor does the N.S.A. program conflict, the Justice Department said, with what many legal analysts had regarded as the exclusive authority for intelligence wiretaps under the Foreign Intelligence Surveillance Act, passed by Congress in 1978 in response to Watergate-era political abuses. Some presidential powers, particularly in the area of national security, are simply "beyond Congress' ability to regulate," it said.
Read that last sentence and understand that what Cheney and the cabal are saying is that as long as Bush says the spying involved national security, and was necessary, neither Congress nor FISA can stop him. So what will Sam Alito say about that claim?
Again, as long as Bush can keep Al Qaeda alive as an enemy and fight an unending global war on terror, instead of killing these guys off when he has chances to do so, the Administration will argue that Bush's powers are unimpeded by Congress, the law, or for that matter, the courts.
And just to make that case clearer, Osama reappears to remind us that he is still around, four years later, ready for more attacks here.