NSA Spygate
• Failure of U.S. State Shows Necessity for New Arrangements
Views on the NSA Spy Scandal
• Bush Must Be Held Accountable • Bush and Wiretaps: Congress, Citizens, This Means War • Note to Mr. Bush: The U.S. is Not a Monarchy • Big Brother Bush
For Your Information
• The Federal Intelligence Surveillance Court
• Constitutional References in the NSA Spygate Debate
•
Authorization for Use of Military Force: September 18, 2001
Significance of the Canadian Election Results
• TML Daily Interview with MLPC Leader Sandra L. Smith
• Discussion on the Election Results: Contributions Sent to the MLPC
Failure of U.S. State Shows Necessity for New Arrangements
The National Security Agency (NSA) Spygate crisis, like the continuing government-organized disaster in the aftermath of Hurricane Katrina, are sharply revealing the failure of the arrangements of the U.S. state. Arrangements between the executive and Congress have failed, with the Office of the President usurping more powers and Congress repeatedly capitulating to the role of consultative body. Even now, when Bush has openly flaunted the law and the Constitution, not only in terms of the NSA Spygate, torture and the Iraq war, Congress is capitulating. Their main complaint is not with the spying itself, not with the fact that torture and war crimes continue, but that Bush did not consult Congress.
Senator John McCain, of Arizona, for example, said the problem is that the “new threats” from terrorism mean Bush needs to fully consult with lawmakers from both parties on the best strategy for spy programs within the confines of the law. He added, “I know of no member in Congress, frankly, who if the administration came and said, ‘Here’s why we need this capability,’ that they wouldn’t get it,” McCain said.
Senator John Kerry, Bush’s rival for the presidency in 2004, also made clear that Congress does not object to the massive spying and impunity that characterizes the U.S. state at this time. Kerry said that Democrats are “prepared to eavesdrop wherever and whenever necessary in order to make America safer.”
The ruling circles are in agreement on the need for impunity. The old Constitutional arrangements, laws like the Geneva Convention, restrictions on the police agencies, stand in the way of this. Even the Foreign Intelligence Surveillance Act (FISA), which made use of secret courts, secret evidence and broad spying “legal” is now “too restrictive.” Now even broader spying with no cause whatsoever, and the indefinite detention and branding as “enemy combatants” that is sure to follow, are being sanctioned.
The NSA crisis, like Katrina, also sharply reveals that the arrangements between the government and the people, including those restricting the police agencies, have failed. All down the line, people are being treated as though they are outcasts that have no rights.
Katrina survivors, for example, were left to die, then rounded up, often at gunpoint and sent to various camps. Families were separated, and their homes are being seized and bulldozed. The very being of New Orleans is being wiped out and its people treated as though they have no say and no rights. In order to have any assistance from a government responsible for their well-being, people were forced to register with the Federal Emergency Management Agency (FEMA) and receive an “authorization number.” People are now, like prisoners, just a number.
The old arrangements have failed. Life is showing, day in and day out, that the Constitution did not and cannot overcome the failure. It is also showing that the only direction Bush and Congress can take is backward to the tyranny of kings, to the genocide and slavery the U.S. state was founded on.
What is required is new arrangements that favor the people and empower them to govern and decide. The Constitution did not do that, cannot do that and in fact prevents that. Daily life is also showing that consciousness of the necessity for new arrangements is growing among the people, as they take up the struggle to rebuild New Orleans, as they organize to oppose the war in Iraq, as they fight for their rights. Mechanisms for decision making by the people themselves and in their interests are coming into being. Organizations are strengthening themselves as they join the resistance and strengthen their ties with each other. It is this work to build new arrangements that empower the people that serves to counter the reaction and impunity of the ruling circles.
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George Bush cannot protect democracy by destroying it. Every American should be outraged by the president’s attempt to justify domestic spying. It is wrong, and the president should acknowledge that fact. He must be held accountable.
Congress should immediately launch a truly bipartisan investigation into the administration’s spying campaign. If the Constitution and laws of the United States were broken, Congress should censure the president. And if the lies, the deceit and lawbreaking continue, Congress should take even more drastic action.
Either we are a nation of laws and moral values or we are not. We cannot pick and choose which laws to abide by and which to ignore for the sake of convenience or expediency.
George Bush is not above the law.
This is a military community, with thousands of active duty and retired members of the armed forces among our friends and neighbors. The presidents’ actions undermine their service to this nation.
The soldiers in Iraq and Afghanistan are fighting for true democracy, not a democracy that condones domestic spying, or secret prisons or subversion of the Constitution. President Bush has played right into the hands of terrorists and diminished the reputation of the fine men and women who wear this nation’s uniforms.
President Bush is the one sending the wrong message to our soldiers and our enemies. Under his leadership, we are becoming known as a nation of hypocrites.
Lies and exaggerations
President Bush has built an administration founded on lies and exaggerations and fear. And he has gotten away with it. It is unconscionable.
President Bush promised to take action against any White House official leaking classified information. Yet Karl Rove remains.
When CIA director George Tenet said weapons of mass destruction in Iraq were a “slam dunk,” he was dead wrong. How was he punished? He was awarded the Presidential Medal of Freedom.
George Bush says the United States does not torture, yet his administration fought tooth and nail against an explicit ban on torture. Abu Ghraib was an exception, we were told. But then we learned there were secret prisons abroad where who knows what goes on.
The president excoriated congressmen Monday for not blindly passing the overbroad USAPatriot Act because they didn’t trust that there were adequate safeguards against abuses. Ironically, that happened at the same time as President Bush promised to continue the illegal wiretaps. He seemed to be saying, “Trust me.”
Well, Mr. President, we are sorry to say that we don’t trust you or your administration because you have abused that trust so often in the past.
Big Brother
His effort this week to turn around his abysmal poll numbers should fall on deaf ears. The American public knows that domestic spying is something out of George Orwell’s “1984.” Yet George Bush has made that “Big Brother” fantasy a reality.
Attempting to justify the indefensible, the president on Monday said he would continue the program of monitoring phone calls and emails “for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens” and added that it included safeguards to protect civil liberties.
Baloney!
The president could have gone to Congress and asked for permission to spy on citizens in the United States. The Republican-controlled Congress would have given the president permission in a heartbeat. Or he could use existing wiretap laws that allow a court order 72 hours after the taping has begun. That way, our vital system of checks and balances would have been preserved.
In his arrogance, President Bush did not go to Congress or to the courts for permission (although he claims that he did tell select members of Congress what he was doing — as if that is enough). He sees himself above the law. As commander in chief, he believes he is not bound by the Constitution and its guarantees of civil liberties. In his view, the warrantless spying conducted by the National Security Agency under his direction is an essential element in the war against terrorists. In that belief he has lowered himself to their level. And there is a disturbing pattern to his behavior.
It is OK to lie about the reasons to go to war.
It is OK to hold hundreds, maybe thousands of prisoners without charges, without legal representation and for an indefinite period of time,
It is OK to have secret prisons.
It is OK to say the provisions of the Geneva Convention don’t apply in a war on terror.
It is OK to treat detainees inhumanely, because we can define them as we see fit.
It is OK to use the Patriot Act to pry into library records and lord knows what else.
It is OK, as NBC News reported, for the Pentagon to spy on peace activists.
It is OK to trample on the rights of citizens.
Unchecked powers
At Monday’s news conference, President Bush angrily denied that he is using unchecked or dictatorial powers. But how else can you characterize his behavior? What tyrant has not claimed the need to use extra legal powers to protect the motherland or fatherland from some threat? How much Orwellian doublespeak can this country tolerate?
Congress impeached former President Clinton for lying about consensual sex with a White House intern.
No one died. No prisoners were tortured. Clinton simply tarnished his own reputation and sullied the stature of the Oval Office.
This is not a liberal or conservative issue, a Democrat or Republican issue. It is an issue of fundamental civil rights.
We repeat: Congress must muster the courage to hold this president accountable. A bipartisan commission investigation is warranted. And if the lies and deceit continue, Congress should consider the ultimate step and impeach President George Bush. It is all about accountability and protecting, not destroying, democracy.
December 20, 2005
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Bush and Wiretaps: Congress, Citizens, This Means War
In asserting his right to ignore the law, President Bush has slapped Congress right across the face and told them they better like it.
Congress can now mutter “Yes, sir” and cower in its corner like a whipped dog, as it has for most of the past five years, or it can fight back to defend its institutional authority. Either choice will mark a -turning point in U.S. history.
At immediate issue is the president’s decision four years ago to allow the National Security Agency, an arm of the Pentagon, to spy on phone conversations and emails of U.S. civilians without court-approved warrants. President Bush insists the program is legal, but it is important to understand what he means by that term.
Bush and his advisers do not claim that his actions are legal because they abide by the Foreign Intelligence Surveillance Act, or FISA; they quite clearly violate that law. Instead, they claim his actions are legal because as commander in chief, he can violate the law if he chooses and still be acting legally.
It is, in other words, his royal prerogative.
That is an extraordinary assertion of executive power, particularly since the president claims this authority will last “so long as the nation faces the continuing threat of an enemy that wants to kill American citizens,” which is pretty much forever.
Conservatives rushing to support Bush’s position out of personal loyalty might want to think about that. If allowed to stand, the president’s claim will fundamentally alter the balance of power not just between Congress and the presidency, but between our government and its citizens, and it will do so regardless of who occupies the Oval Office in the future.
Bush grounds his argument on need, claiming that current law gives him too little leeway to fight the war on terror effectively. That argument has at least four basic flaws.
First, it ought to alarm anyone who is truly serious about preserving personal liberty in the face of government power. “Necessity is the plea for every infringement of human freedom,” British statesman William Pitt warned in 1783. “It is the argument of tyrants; it is the creed of slaves.”
Second, the claim that Bush has had to violate FISA to protect our security is false. Under FISA, the government has explicit authority to begin wiretapping whenever it deems necessary, without seeking prior approval from a judge. The law merely requires the executive to seek after-the-fact approval from a top-secret special court within 72 hours. Since 1978 that FISA court has rejected just five of 18,748 warrants sought by the government.
Third, even if the law were defective, as Bush claims, no president has the power to make that determination on his own. This is a democracy; if there is a problem with a law, the Constitution gives us a process for fixing it. In this case, FISA was a carefully calibrated, thoroughly debated effort to find the right balance between security and liberty; Bush does not have the authority to simply toss that work out the window because he disagrees with it. That is the power of a dictator, not of a president.
Fourth, and most fundamentally, this argument of necessity calls into question who we have become as a people.
More than 160,000 U.S. troops are in Iraq this holiday season, putting their lives, bodies, souls and futures on the line. Thousands more are on duty in Afghanistan. And while those of us here at home celebrate their bravery, for the most part we are not required to share in it. We let them do the fighting and dying for us; we do the applauding and burying.
We do, however, run an infinitesimally small chance of falling victim to a terrorist attack. It happened once; it could certainly happen again, and we should do everything within reason to prevent a recurrence.
But it does not seem too much to ask that in facing down that danger, we demonstrate just a fraction of the bravery and resolution that our soldiers show. Osama bin Laden, after all, is not Adolf Hitler or imperial Japan or the Soviet Union.
If we civilians quake at the comparatively minor danger that he and his followers pose, if we rush to offer up our civil liberties in hopes of a little more safety, we prove ourselves unworthy of the sacrifice that our men and women in uniform are prepared to make.
Yes, the president has told us we should be fearful, encouraging us to compromise not just our freedom but our constitutional system of government. But if this is still the country we claim it to be, we will tell him no.
Jay Bookman is the deputy editorialist for the Atlanta Journal-Constitution. The article was originally published December 22, 2005
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Note to Mr. Bush: The U.S. is Not a Monarchy
Our forefathers created a system of government built on checks and balances that they envisioned would protect a free people from abuses of their privacy, their property and their liberty at the hands of anyone, especially anyone in public office.
They never intended for an imperial presidency to rise above the legislative and judicial branches of government, for they had their fill of kings and emperors who ruled with absolute power in the old world. They knew that absolute power corrupts absolutely.
They wanted none of this, and wrote a Constitution and Bill of Rights to enshrine the protections they knew were needed to keep Americans free and democracy healthy.
They crafted a system of government rooted in the principle that citizens have rights and presidents violate those rights at their own peril.
Let us review the bidding as the dark year 2005 fades:
President Bush admits that he secretly ordered the government to eavesdrop on American citizens, without recourse to the established legal methods of doing that. He declares that he had and has the right to do so. Says who? Well, he says so, and Vice President Cheney says so, and his attorney general, Alberto R. Gonzales, says so too.
Some legal scholars beg to differ, arguing that the president has violated federal law and has opened himself to impeachment for high crimes and misdemeanors. They contend that he trampled the Constitution in a bid to expand the powers of the executive branch and conduct the war on terrorism.
This is the same president, the same administration, that under cover of the same wartime power grab declared its right to detain prisoners outside the court system in secret foreign prisons and the right to use inhumane and degrading measures in interrogating those prisoners in violation of the Geneva Conventions.
In ordering the National Security Agency to intercept phone and e-mail traffic of American citizens, members of the administration chose not to avail themselves of a secret federal court established nearly 30 years ago to provide the government the means to secretly investigate anyone believed to have ties to foreign governments or movements that threaten the United States.
They say it is too cumbersome and slow to seek warrants from that court - even though the court has granted such warrants in more than 17,400 cases and only rejected them four times. They say they must move more swiftly - even though the law permits them to eavesdrop for 72 hours before seeking a warrant that is routinely and quickly granted.
Some suggest that the Bush administration's real reason for cutting the secret court out of the loop is that some of the information they are basing the secret wiretaps on was gotten through torture. The court warned early on that it would not permit information gotten through extra-legal or illegal methods to pervert the American court system.
Congress passed the law creating the Foreign Intelligence Surveillance Court precisely because another president, Richard Nixon, bent the intelligence agencies and the entire government to his will in pursuing those he considered his enemies. If you made the Nixon enemies list, then your phones were tapped, your comings and goings watched, your tax returns audited.
How big a leap is it from ignoring the rule of law in pursuing foreign enemies to pursuing and punishing domestic enemies, those Americans who for political reasons or reasons of principle oppose your aims?
The president and his vice president and his attorney general are saying, essentially, trust us. We will not use our extra-legal powers against ordinary Americans. We just want to protect you from further terrorist attacks. Trust us. We are honorable men who have nothing but your well being at heart.
Sorry. That will not cut it. They have all the legal tools any president needs already on the books for our protection. Congress makes the laws. The judiciary interprets them. The president and all the rest of us live by them.
George W. Bush is not the emperor of America or the king of the 50 states of the union. He, like us, must live by the rule of law. He is bound by the Constitution and the Bill of Rights. In the end, he works for us.
As Ben Franklin wrote more than two centuries ago: "Those who would give up essential liberty in the pursuit of a little temporary security deserve neither liberty nor security."
December 22. 2005. Joseph L. Galloway is the senior military correspondent for Knight Ridder Newspapers
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The president took a step toward a police state. The Bush administration is continuing its assault on Americans’ privacy and freedom in the name of the war on terrorism.
First, in 2002, according to extensive reporting in The New York Times on Friday, it secretly authorized the National Security Agency to intercept and keep records of Americans’ international phone and email messages without benefit of a previously required court order. Second, it has permitted the Department of Defense to get away with not destroying after three months, as required, records of American Iraq war protesters in the Pentagon’s Threat and Local Observation Notice, or TALON, database.
Both practices mean that a government agency is maintaining information on Americans, reminiscent of the Johnson and Nixon administrations’ approach to Vietnam War protesters. The existence of those records should be seen against a background of the Bush administration’s response to criticism of the Iraq war by retired Ambassador Joseph C. Wilson. His wife’s career at the CIA was ended in revenge for an article he wrote unmasking a dodgy piece of intelligence that President Bush had used in a State of the Union message to seek to support his decision to go to war.
It appears that the phone and email messages of thousands of Americans and foreigners resident in America have been or are being monitored and recorded by the NSA. Such action is not supposed to be taken without an application to and an order approved by the Foreign Intelligence Surveillance Court. Mr. Bush issued an executive order in 2002, months after the September 11, 2001, attack, removing — secretly — that legal safeguard of Americans’ privacy and civil rights.
The Pentagon’s action as part of TALON will be put forward as an oversight, but the idea of the Department of Defense maintaining files on American war protesters, perhaps with easy cross-reference to the NSA’s records based on the results of their monitoring of phone calls and emails of potentially those same protesters, makes possible a very serious violation of Americans’ civil rights.
Without a serious leap of imagination, particularly with the list of those under surveillance not available to anyone outside the NSA and the Pentagon, it is also possible to project that political critics of the Bush administration could end up among those being tracked. The Nixon administration, a previous Republican administration beleaguered by war critics, maintained “enemies lists.”
The White House needs to tell the Pentagon promptly to destroy the records of protesters as required, within three months. It also needs promptly to tell the NSA to return to following the rules, to get the approval of the Foreign Intelligence Surveillance Court before monitoring Americans’ communications. The idea that all of this is being done to us in the name of national security does not wash; that is the language of a police state. Those are the unacceptable actions of a police state.
December 18, 2005
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The Federal Intelligence Surveillance Court
For the information of our readers, we are reprinting below an article on the Foreign Intelligence Surveillance Court (FISC) brought into being by the Foreign Intelligence Surveillance Act (FISA). Both FISA and the court are frequently referred to in the current contention over President George W. Bush’s use of the National Security Agency (NSA) to spy on innocent people, in the U.S. and abroad. Republican Senator and Bush supporter Arlen Specter, chairman of the Senate Judiciary Committee, for example, said, “On the surface, [Bush’s NSA spying] appears to conflict very directly with the Foreign Intelligence Surveillance Act.” Specter has called for a one-day hearing, February 6, on “Wartime Executive Power and the NSA’s Surveillance Authority.” Attorney General Alberto R. Gonzales will testify at the hearing. While many are opposing Bush’s spying as breaking the FISA law, few have -addressed the reality that the FISA law itself has already served to make broad spying by the executive “legal.”
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On October 25, 1978, President Jimmy Carter signed into law the Foreign Intelligence Surveillance Act (FISA). Executive Order 12139, signed by Carter several months later, officially chartered the Foreign Intelligence Surveillance Court (FISC). The legislation and court were created in the context of outrage by the American public in the wake of revelations by the Senate Select Committee on Intelligence, headed by Senator Frank Church of Idaho, against, among others things, the FBI’s infamous COINTELPRO “counter-intelligence” program that targeted anti-war and political activists, the Black Panther Party, the Reverend Dr. Martin Luther King, Jr., Malcolm X and the American Indian Movement. It was also an effort to block such spying within the ruling circles, carried out by Nixon in the name of stopping “political enemies,” as evidenced in the Watergate break-ins.
Presidents consistently claim the authority for the executive branch to conduct warrantless searches, on the basis of the Constitutional provision for the President to conduct foreign policy and presidential authority as Commander in Chief. This notion was codified in the passage of the Omnibus Crime Control Act of 1968. It required electronic surveillance in criminal investigations to be done only when “probable cause” of a crime could be demonstrated to a judge. However, cases of “national security” and “foreign intelligence” were exempt from this law.
Following the Church Commission’s public revelations, the FISA was drafted and presented as a mechanism to separate law enforcement and intelligence activities, while providing judicial oversight to intelligence activities through the FISC. But as numerous political analysts and legal experts point out, the law and the court it created instead provided the mechanisms for secret searches and surveillance to be conducted without any burden of showing probable cause. Further, FISA stipulated that the applications to the FISC, the court’s proceedings, and any evidence gathered would be off limits — to the public, to the Congress and even to juries, defendants and their lawyers in court cases using the evidence. As well, the “judicial oversight” has been nothing more than a rubber-stamp. In over 12,000 applications brought before the court, only one has been turned down and that was at the request of the FBI and NSA, the applicants [As of 2005, FISC had authorized more than 18,700 warrants and rejected only 4, with use of FISA warrants greatly increasing.] The 2001 USA PATRIOT Act further broadened the scope of FISA to state that secret searches and surveillance, and the use of the resulting secret evidence, may be conducted in cases where the Attorney General deems it necessary to “protect against international terrorism or -clandestine intelligence activities.”
Patrick Poole, Deputy Director of the Center for Technology Policy, in a 1998 paper entitled “Inside America’s Secret Court: The Foreign Intelligence Surveillance Court,” said the FISC concept was a compromise between legislators who wanted the FBI and National Security Agency (NSA), the only two agencies affected by the FISA statute, to follow the standard procedure for obtaining a court order required in criminal investigations and legislators who supported the demand of the federal agencies to have no restrictions in conducting foreign intelligence surveillance inside the U.S.
Poole reports: “The court itself is comprised of seven federal judges chosen from the federal district courts by the Chief Justice of the Supreme Court; each serves a non-renewable seven-year term. [Note: the 2001 USA PATRIOT Act increased the number of judges to 11, three of whom must live within 20 miles of the District of Columbia]... A separate FISC Appeals Court composed of three members hears the case for applications denied at the lower level of the court. To date, the appeals court has never heard a case.”
While FISA judges by tradition make no public statements regarding any aspect of their work, in recent years U.S. District Court Judge Royce Lamberth, a FISC judge, spoke before the U.S. Bar Association. Asked about the court’s track record of never turning down a government request, Lamberth said it was because the Justice Department has a “superb internal-review process.” He added that each FISA application comes with the personal approval of the attorney general, “so we know there is political accountability for what is being presented to us.”
The FISC also works with almost no Congressional oversight. Poole reports: “The only information required by FISA to be provided to congressional oversight committees is the number of surveillance orders approved each calendar year and brief semi-annual reports. The entire 1997 report on the FISC’s activity totaled two paragraphs.”
The court itself, Poole says, “conducts all of its hearings in a secret windowless courtroom, sealed from the public by cipher-locked doors on the top floor of the Department of Justice.” He adds, “If the FISC judge considering the application believes that the request meets the standards of the FISA statute, electronic surveillance can be approved for up to ninety days for U.S. citizens or a year for foreign nationals. The court also hears requests for extensions, which are routinely granted.”
FISC Powers Extended to Physical Searches
The initial authorization of the FISA court included only the power to approve wiretapping and surveillance. Poole explains, “After Janet Reno approved a warrantless physical search of CIA spy Aldrich Ames’ Arlington, Virginia home in October 1993, the Department of Justice made a request to Congress that the authority of FISC be expanded to include physical searches. Congress obliged by including the authorization for an expansion of FISC powers in the Intelligence Authorization Act of 1995.
“President Clinton implemented the new powers through Executive Order 12949. Apart from giving the FISC physical search powers, the executive order also authorized the Attorney General to approve physical searches, without a court order, to acquire foreign intelligence information for periods up to one year, if the Attorney General makes the certification required by [FISA].” [Congress further significantly expanded FISC powers, to include spying on “terrorist” groups or individuals, and including cell phones, emails, etc. with the USA PATRIOT Act, and the Intelligence Authorization Act of 2002 and the Homeland Security Act of 2002.]
Along with this trend toward broadening the scope of the FISC has come a several-fold increase in its use. In 1980, the first full year of FISC’s implementation, the court heard and approved 319 applications. By 1990, that number had increased to 595. In 2000, the court heard and approved 1005 applications. The FISC now approves more surveillance applications than the whole of the rest of the federal judiciary combined. In 1996, when the FISC approved 839 applications, federal judges approved 569 surveillance and search requests to investigate criminal activity. [Today the FISC continues to issue more warrants than all federal judges combined.]
Secret Evidence in Criminal Cases
With the expansion of scope and use of the FISC, Poole points out, has been the introduction of the use of secret evidence in criminal proceedings. Clinton’s executive order “also included the power for evidence gathered in FISA surveillance and searches to be used in criminal proceedings. However, all the information regarding the order and any evidence obtained under the order are permanently sealed and classified top secret.’” Poole explains how in one example of the use of this provision, the judge instructed the jury in a criminal case that evidence against the defendant would not be presented for “national security” reasons. The jury was instructed to rely on the “testimony” of the judge himself. The defendant’s attorney’s were thus unable to challenge the evidence. As of 1998, more than 90 criminal cases had resulted from secret evidence gathered under the FISC order, Poole reports.
“The attractiveness for law enforcement and intelligence agencies to use the FISC to gather evidence for criminal trials is readily apparent,” Poole points out. “No reasonable cause or Title III requirements [governing surveillance and searches in criminal cases] are needed to file an application for surveillance; evidence obtained cannot be reviewed or challenged by the defense; and if no evidence can be obtained, the secrecy of the FISC process prohibits the one subject to the surveillance from ever knowing about — let alone challenging — the appropriateness of the court’s order.”
The 2001 USA PATRIOT Act increased this feature of the FISA provisions, amending the portions which state that the FBI and NSA must show that “foreign intelligence” is the “primary purpose” of a search or seizure to only needing to show it is a “significant purpose.” The standard of only “a reason to believe,” someone “may be associated” with terrorists, rather than proof of probable cause, also remains.
FISA in Contempt of Constitution
Poole concludes that “the FISA process has resulted in the erosion of numerous Constitutional rights and basic legal procedures that have their roots in free societies dating back to the Magna Carta.”
Poole adds that “under the FISA statute, a U.S. citizen may be subject to a FISC surveillance order for political statements and views that are determined to be unpopular — yet legal — by unelected government officials in violation of the First Amendment.”
While the law specifically states that applications for searches and seizures cannot be approved on the basis of “First Amendment protected activities alone,” Kate Martin, director of the Center for National Security Studies gave the example where this provision has simply been ignored. The “Los Angeles Eight,” seven Palestinians and one Kenyan, faced attempts by the government to deport them for more than ten years because of their fund-raising activities for Palestinian humanitarian relief organizations and alleged support for the Palestinian Front for the Liberation of Palestine. A FISA wiretap was obtained, Martin said, solely on the basis of “the First Amendment-protected political activities of the L.A. Eight.”
Poole continues, “Physical searches without reasonable cause are specifically prohibited by the Fourth Amendment.” FISC physical searches authorized by legislative and executive actions “allow government agents to scour a suspect’s home, papers and effects indiscriminately and without reasonable cause.”
He adds, “The Fifth Amendment right not to be compelled to act as a witness against oneself is significantly harmed when those under surveillance have full expectation of privacy in their conversations and personal communications but subsequently have their conversations recorded and analyzed by law enforcement and intelligence agencies.”
Poole also points out, “a citizen’s Sixth Amendment rights to confront accusers, to review evidence against him, and to legal counsel are frequently violated. In all of the criminal trials involving FISC orders, evidence is sealed from review from both the accused and their legal counsel.
“The numerous protections articulated in the Constitution and the Bill of Rights were expressly designed to prevent the gross judicial abuses of the British government Star Chamber under King George the Third — abuses and powers eerily similar to those currently granted by the Congress and the Presidency to the FISC.”
Features of FISC were also replicated in the 1996 Anti-Terrorism and Effective Death Penalty Act. The law included provisions for the use of secret evidence in deportation proceedings and a secret Alien Terrorist Removal Court modeled after the FISA court. In a 1999 magazine article, David Pugh, spokesperson for the National Coalition to Protect Political Freedom, said that in the 50 criminal cases from 1993 to 1999 in which the Immigration and Naturalization Service used secret evidence to arrest and deport non-citizens, all involved Arabs or Muslims. “The government is trying to set both political and legal precedents in using secret evidence,” Pugh pointed out, “applying it to those they perceive as the most vulnerable sections of the population.”
Reprinted from Voice of Revolution, December 6, 2001)
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Constitutional References in the NSA Spygate Debate
Presidential Powers
Article II
Section I.
The executive power shall be vested in a President of the United States of America.
Section II
[1] The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Section IV
The President, Vice-President and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.
Congressional Powers
Article I Section VIII
The Congress shall have power …
[11] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
[12] To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
Relevant Amendments
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment IV
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 warrants 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.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.\
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Authorization for Use of Military Force Resolution
We reprint below the Authorization For Use of Military Force (AUMF), passed by Congress on September 18, 2001. The portion below, Section 2, “General” is the section most commonly referred to in the current NSA Spygate crisis.
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Authorization for Use of Military Force
We reprint below the Authorization For Use of Military Force (AUMF), passed by Congress on September 18, 2001. The portion below, Section 2, “General” is the section most commonly referred to in the current NSA Spygate crisis.
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Public Law 107-40 [S. J. RES. 23]
107th CONGRESS
JOINT RESOLUTION
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force'.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
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Significance of the Election Results
TML Daily Interview with MLPC Leader Sandra L. Smith
Continued from the January 30, 2006 edition of Voice of Revolution
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TML: What is the "change" and what is the "accountability" in the Harper agenda?
Sandra L. Smith: To find out what Harper means by change and accountability, Canadians will have to study how he is intervening in the situation. He has already said his first act in government will be the Federal Accountability Act. From what we have seen thus far of Harper's views on accountability, it does not include taking up social responsibility. It's the same notion as that of Paul Martin. Harper will likely introduce new rules and regulations and what is called oversight procedures, but none of this will deal with why the corruption or conflicts of interest occur or even properly identify what constitutes corruption or conflicts of interest. Already under Martin some 600 accountants were hired in several ministries and the result is increased harassment of ordinary Canadians and rank and file workers. How decisions are taken, why and by whom and modern procedures consistent with the times does not enter into the picture.
Similarly, Harper's notion of change, which the establishment and media are presently using to disinform the public, requires serious attention to establish its ideological underpinnings.
In his victory speech, Harper said: "Despite the divisions and discord of an election, the ability to peacefully change and renew our nation's leadership remains one of our country's great strengths."
The notion of peaceful change is not at all discussed -- for instance, how the ruling class is going about achieving in other countries the "peaceful change" which he says we have in Canada. There is nothing peaceful about what is taking place in Iraq, Afghanistan and Haiti or what they threaten to do to Iran, Palestine, Cuba, Venezuela and other countries if the governments and people there don't submit to their definition of democracy and a raison d'état which falls in line with the interests of the Anglo-American imperialists.
TML: You said how decisions are taken, why and by whom remains hidden. This seems to deal with the permanent state of exception which has been declared where we see a clash between rule of law and the committing of all kinds of crimes by making them "legal." Is this the case?
SLS: Yes, but what is significant is the self-serving arguments to justify what cannot be justified.
The main ideologues of the bourgeoisie in Canada -- be they Liberal such as the Axworthy brothers or Michael Ignatieff, be they Conservative such as Harper's man Tom Flanagan, or others from the Fraser Institute or the Canadian Council of Chief Executives -- are all arguing in the same vein as the discourse taking place in the U.S. and Britain. All of them argue on the basis of reactionary premises.
The essence of the arguments put forward in Canada, such as "responsibility to protect" or "human security," oppose the right of nations to self-determination, just as their arguments about security trample civil rights. An understanding of what is taking place in the United States can guide us in our study. There a dangerous notion is being put forward that a new equilibrium can be established by creating a balance between continuity and change.
A claim is made by the U.S. administration, for example, that these are exceptional times marked by perpetual war, and that by reason of state the President must wield executive powers in order to preserve American liberties, law and order, the American state. The claim is specifically that the Constitution (being the continuity with the past) vests the President with these powers under its article 2 section 2: "The President shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into service by country." And secondly, these special discretionary powers derive from Congress' "Authorization to use force" issued following 9/11 which it is claimed gives legal sanction to proscribe "checks and balances" established by the Constitution in "normal times."
According to the argument, balance and equilibrium will result from uniting under Bush, who is given dictatorial powers because of claims of "threats" at home and abroad. On this basis, the claim is made that torture, assassination, spying, kidnapping, secret courts, secret imprisonment, regime change, destruction of peoples, threats of aggression and wars of occupation and even the use of nuclear weapons, etc. are all carried out legally, under rule of law, and are therefore necessary in restoring balance in the world.
Many voices including from the establishment have been raised in opposition, and the Bush administration has been called illegal, actively destroying American democracy and the Constitution, controlling and intimidating through arbitrariness and violence. Al Gore recently quoted the dean of the Yale Law School on the "previously unrecognized powers": "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution." Bush with the huge concentration of power in the executive, has personally assumed the status of an absolute monarch, and based on this position claims that all abuse of power can be carried out with impunity.
The views of critics, focusing on all these arbitrarily assumed powers, the lack of accountability, secrecy, etc., taken together offer a description of the royal prerogative. It is similar to the absolutist King of England James I, 1616: "If there falls out a question of my prerogative or mystery of state deal not with it, till you consult with the king or his council, or both; for they are transcendent matters."
And the arguments of Locke and Montesquieu on the prerogative might find resonance with the critics' views of Bush arguments on surveillance and crusades against purported "internal and foreign enemies": Locke linked the prerogative to what he termed federative powers in opposition to the "design of foreign princes" and insurrections within a country, claiming those who participate in rebellion are in the same position as those in line with foreign powers. Often examples from American history are given in comparison with Bush, for instance the 1798 Alien-Sedition Acts, the World War I anti-subversive and sedition laws and the 1919 Palmer Raids and "red scare," the Japanese-Americans incarceration in concentration camps, McCarthyism, Cointelpro, etc. Examples of the dictatorial powers of empire-building, militarism, fascism, etc. out of the past are also often compared to the activities of the Bush administration.
In this manner, a certain impression can be created that history moves in cycles, through extremes, and then, as Gore suggested, "the country recovered its equilibrium and absorbed the lessons learned in a recurring cycle of excess and regret." At the same time, Gore and all other such critics are in agreement with Bush about "threats" to the U.S. and the need for the President to have expanded discretionary powers, including the use of secret courts and judges, which cannot be given a precise legal basis, but should be pursued under the "rule of law" and within constitutional "checks and balances." Some of the leading critics are merely demanding that Bush go through the Congress to acquire the powers so that they are conferred "legally." And yet Gore fears, "There are reasons for concern this time around that conditions may be changing and that the cycle may not repeat itself." The venerable exercise of the "separation of powers," the constitutionally sanctioned procedures of government must be brought into balance with the changing times.
The old arrangements, procedures and processes of the status quo are being thrown to the wind, while all principles and achievements are under radical assault. The notions of equilibrium through cycles of history and through the balance between continuity and change are alike, and as such are dangerous illusions: they cover-up the actual disequilibrium that is destroying the already existing social fabric while negating the actual interests of the people of all countries who are in dire need of achieving a new equilibrium. Such a thing cannot and will not be achieved by the contending factions within the ruling class because their interests lie with reaction. Only the working class and people whose interests lie with progress can manage such a thing.
In this regard, these old notions of equilibrium and balance are used to cover up the actual historical trends and situation and the need for change. They cover up the need to activate the social and political forces which can bring it about. By confounding continuity and change and what's absolute and what's transitional, these notions serve the reason of state of the usurpers.
The reason of state of the holders of the royal prerogative is in actuality the basis of the unreason of state, of irrationalism. Irrationalism keeps afloat archaic notions and feelings of perseveration, the compulsive repetition of responses to experiences in situations where they are no longer appropriate. Examples of this are the treatment of Quebec, of the peoples of the First Nations, of the youth as a law and order problem, of minority rights, of the peoples of Africa, Asia, Latin America and the Caribbean as white man's burden.
This atmosphere of irrationalism opposes reasoning through and arguing out the modern definitions that can point to a way out of the disequilibrium by recognizing that all persons are born to society, and by virtue of this there must be the recognition of their claims on society, and the guarantee by government to secure the conditions by which these claims can be satisfied. Without modern definitions, old notions will hold sway with passions and interests inflamed, finding no relief by which they can be sorted out and harmonized.
In opposition to this state of disequilibrium, it should be recognized that equilibrium is inseparable from motion. Motion is inseparable from matter. All things and phenomena are matter in motion. Without recognizing the basis of change, development and motion and opening a path for society's progress on that basis, the crisis will be exacerbated with dire consequences for the peoples both at home and abroad.
This is the framework within which the MLPC sets its program to open society's path to progress
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Contributions Sent to the MLPC
Contribution #1: Behind the will of the big bourgeoisie to get rid of Martin and replace him with the Conservatives lies a deep crisis of the political system in Canada, the U.S. and elsewhere. The very fact that Martin was not able to dissociate himself from the sponsorship scandal in spite of his exoneration by the Gomery Commission and that his credibility kept going down is a sign of the growing consciousness amongst the people. The people are fed up with those who say they sympathize with them but keep acting against their interests.
The big bourgeoisie refuses to recognize the need for democratic renewal and it keeps trying to strengthen its rule, which at this time means restructuring all the institutions so that they serve the needs of the bourgeoisie within the framework of neo-liberal globalization and making sure that the peoples, especially in North America, will not block its plans. Therefore, it needs to remove anything that can make it difficult for it to act with impunity. Refusing to renew the democracy so that the people become the decision-makers will mean acting against the people so that they cannot fulfil their aspirations.
U.S. finance capital is very much involved in Canadian politics. This is true not only with the oil monopolies and the Conservatives, or with the demand for unlimited access to Canadian oil and gas, water and softwood lumber, but also in terms of having a Canadian state that is obedient. The monopolies need an ever greater integration of the resources, of the laws, of the police and military forces, of the "security" systems, to assist their plans for world domination. In order to do so, they must dominate the states of the countries they are targeting. An obvious example was the use of the legislation regarding bankruptcy protection and the criminalization of the struggles of the workers and peoples for their rights.
Contribution #2: In Canada, the role of the people as an opposition within the political disequilibrium is important.
In Quebec, for example, we have seen movements appear and develop with great resilience. Whether they call themselves "I never voted for that!" or the "Sans Chemises" (which basically means too poor to have a shirt) with their slogan "Who stole the money from the unemployed?" or the coalition to defeat Coderre in the riding of Bourassa and many more -- they are all political actions to which the people have given rise in order to wage a direct fight against the bourgeoisie and its parties to defend the interests of the people.
Many politicians from the provincial Liberals, Action Démocratique and the Parti Québécois fear these movements and this is particularly the case when one thinks about the next Quebec election.
The Marxist-Leninist Party of Canada showed great courage in accepting the challenge to provide these movements with an organized political form to enable the people to go for political power. Without political power, there can be no reform or renewal that guarantees the rights of the people. This is the task that the workers, youth and people must take up. It is only by taking over the political power and building a modern nation that the workers and people will become the decision-makers and make sure that they will not be limited forever to resistance struggles.
There are great opportunities in front of us. Let's make sure we all take a hold of them.
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