Better to ask Forgiveness...

National Security letters are interesting things. They don't have the force of law, but to most Americans, seeing a formal letter with the FBI's letterhead on it is little less than a subpoena, creating the perception that the target of the letter is not entitled to a hearing to contest it. These letters were used to get private information of countless American people during the Bush administration. One person who refused was charged - I've posted about it before, and I encourage y'all to look up Doe v. Ashcroft, but basically, the Court said "can't do it. We are troubled by the concept of the Executive Branch using its plenary power to determine what information is relevant. That's what Courts and warrants are for." You know, oversight.

Anyway, the legal field knew that this was wrong, and most people understood that it was wrong from 1st and 4th amendment perspectives. But, it's only until recently that the FBI has started admitting "yeah, what we did was inappropriate." While I'm glad they're coming clean, it's sort of like saying "sorry" to the guy who just caught you in bed with his wife. The damage is done, and it can't be undone. Though it will be quietly pushed aside, not unlike this story which was only on the headline page at Yahoo for an hour or so.

Perhaps this release was given to help garner support for retroactive immunity to the telecoms who turned over the information under threat from the government. But, if that's the case, then doesn't this open the door for litigation against the government by those whose files were inappropriately received? Shouldn't it?

True Colors

So President Bush made headlines a short time ago by threatening to veto any legislation that would not grant retroactive immunity to telecommunications companies that assisted the Government in conducting wiretaps against American people without warrants. The administration asserted that the law which had been in effect had to be renewed "as is" to allow America to be secure, and that not extending the law would weaken America.

What the law did was provide an end-around of FISA and the Fourth Amendment. For the uninitiated, the Fourth Amendment requires that "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 (emphasis mine)." This requirement has extended to telephone conversations based upon (inter alia) Katz v. U.S., 389 U.S. 347 (1967) and Berger v. New York, 388 U.S. 41 (1967).

In the early 1970s, The Court issued its ruling in what is known as the Keith case. In this case, the defendants were a domestic dissident group. This means that their activities did not touch upon the foreign affairs powers of the President. They were nonetheless subjected to electronic surveillance. The Government wanted to use this surveillance in prosecuting the case, claiming that Probable Cause was not a one size fits all requirement, despite the plain language of the Fourth Amendment, and the President is vested with inherent powers to disregard the requirement (This was Nixon's argument, and is not unlike much of what President Bush has argued). It argued that the situation was "complex," and therefore a warrant would be too burdensome. The Court, however, said that they dealt with Complex issues all the time, and therefore this would not suffice as an excuse to violate the Fourth Amendment. However, the Court did concede that Probable Cause may not be the proper standard in all situations (which sounds a lot like Judicial Activism, to me), and that Congress should consider different standards (which sounds an awful lot like an advisory opinion to me, which is another Court no-no). Congress did, and gave us FISA.

Real quickly, FISA is the Foreign Intelligence Surveillance Act, and it allows the collection of information before securing a warrant, provided a warrant is secured within 3 days after surveillance begins. It also puts the standard of review for the Court at little more than a rubber stamp. The Court may not rule on sufficiency of the request, rather, it can only rule on whether the request was filled out properly. In other words, the courts essentially cannot refuse a FISA warrant if the agent requesting the Warrant crossed the "t"s and dotted the "i"s.

Somehow, this was insufficient for the President, who saw fit under his authority as President to order surveillance of Americans without securing a warrant, and now wants to protect those who assisted him in violating the civil rights of untold numbers of Americans. But, he's changed his tune. Now, we're no longer as worried about weakening America (because really, we're no weaker), no, now we need to stop the bloodsucking lawyers: "When Congress reconvenes on Monday, members of the House have a choice to make: They can empower the trial bar, or they can empower the intelligence community.... They can help class-action trial lawyers sue for billions of dollars, or they can help our intelligence officials protect millions of lives."

This is too bold. The President is essentially saying "don't make people answer for their transgressions - grant them ex-post facto protections," (while the Constitution forbids the passage of ex-post facto laws, the Court has ruled on more than one occasion that this only applies to making illegal what was once legal, and not vice-versa). He conveniently ignores that any damages paid would be to compensate for injury caused by real or potential harm to individuals' civil liberties by the telecommunications firms' assistance in the government's violation of the 4th Amendment and ignores the all-too-real situation that the law he seeks to have re-enacted is unnecessary. He does so in a most disingenuous fashion, and I find that more offensive than his original argument that Congress was making America weaker.

Another Activist Decision

Once upon a time, in 2004, the FBI sent a letter to an Internet Service Provider (ISP). This letter, a National Security Letter, was, essentially a subpoena, which said that the provider had to turn over certain customer information to the Government. The letter authorized the FBI (an executive branch entity) to demand the ISP (or whomever) turn over the information that the FBI determined relevant. The NSL was used because it was preferable to a warrant, which required the Government to go through the court system and show probable cause. The letter, however, did not require the Judicial review. The letter said, in essence, that the ISP's manager was to collect the information, deliver them himself, not challenge the government's authority, and was not authorized to refuse or tell the individuals whose information was demanded by the FBI. The ISP sued on First and Fourth Amendment grounds, and the court ruled that this provision of the USA PATRIOT Act was unconstitutional, inasmuch as the letter looked like a threat and a reasonable person would not know (due to the language on the letter) that they could have a hearing to challenge it. The court was troubled by the concept of plenary executive power to determine when and what is necessary/relevant in terms of individual's information.

In response to this court's striking down of this provision in Doe v. Ashcroft, the Republican majority Congress renewed the USA PATRIOT Act in 2005, and revised said provision. The new provision was subsequently challenged, and the damn activist judge, clearly ignoring what the President insisted we have in order to effectively fight the terrorists, ruled the revised provision unconstitutional as well, because (and get this) the provision allows the Executive Branch to demand information on individuals (a search/seizure) without first procuring a warrant. This is a travesty. If the American People and the Founders were so concerned about searches and seizures by the Government, they would have required warrants in the Constitution, or the Bill of Rights - oh wait...

You see, we're supposed to support this provision, and not challenge this intrusion into our civil liberties or our Constitutional rights because we are engaged in a war against Terrorism, a non-entity, an idea, and thus we have to be extra vigilant and not ask questions when the Government asks for information on us, or on other Americans. If we've done nothing wrong, then we have nothing to fear, right?

Or, perhaps we should listen to the words of a Great President: "Once a government is committed to silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." Harry S Truman

Or, if that doesn't work for you, how about a former Supreme Court Justice: "As nightfall does not come at once, neither does oppression. In both instances, there's a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness." - William O. Douglas

Bush Derangement Syndrome

One of the favorite lines of the 20 something percent of Americans who still support President Bush like to spout out against anyone who dares to question the Dear Leader is that those who are questioning the Decider are suffering from Bush Derangement Syndrome, or BDS.

This is because nothing that has happened in the past six plus years are President Bush's fault. We need to remember this.

It wasn't his fault that No Child Left Behind ended up leaving hundreds of thousands of children behind, what with test scores being lower, discipline being worse, and fewer funds going to activities that could keep those children active, engaged, and interested, or counselors to identify the problems students are encountering outside the classroom.

It isn't his fault that God speaks to him and guides him in his decisionmaking. That should go to show the infallibility of his plans and decisions.

It wasn't his fault that the military "found" a tape of a guy who looked like Bin Laden in 2002 discussing Al Qaeda's role in 9-11 (though he does get some points, because it turned out whoever he told to make that tape was right, ultimately).

It wasn't his fault that Iraq didn't have WMDs, wasn't involved in 9-11, or most of the other justifications for liberating those people, so that they never have to worry about violence on their streets again.

It wasn't his fault that he staged a round table discussion with officers to look like it was a genuine discussion with troops about the goings on in Iraq.

It wasn't his fault Donald Rumsfeld criticized one of his troops for daring to ask about going to war ill-prepared with the now-famous "you go to war with the army you have, not the army you wish you had."

It wasn't his fault Terri Schiavo's husband did have the right to make the decision he did and the President couldn't stop it no matter what he told Congress.

It wasn't his fault he said you always err on the side of life, and then declined to send aid immediately in the midst of reports that there could be overtopping of the levees in New Orleans after Katrina. "You're doing a heckuva job, Brownie!"

It wasn't his fault the Iraqi soldiers didn't stand up.

It wasn't his fault the insurgency wasn't in its last throes, as Dick Cheney suggested.

It wasn't his fault the Mission Accomplished banner hung directly behind his head so everyone could see it. They should have known the banner referred to the ship, and not taken the implication that the banner referred to Iraq.

It wasn't his fault the tapes of Abu Graib got out.

It wasn't his fault people don't like the idea of their phone lines being wiretapped without a warrant, or that the pesky 4th amendment still exists.

It's not his fault that Alberto Gonzales went to John Ashcroft's bed while Ashcroft was heavily sedated to try to wrest an OK to go ahead with said wiretaps, then justify it by saying "there are no rules."

It's not his fault Libby was arrested, indicted, tried, and convicted with regard to the Valerie Plame affair. It's not his fault Libby's sentence was commuted - oh, wait. Yes it was.

It wasn't his fault the AG fired seven prosecutors for not going after democrats fast enough, or (gasp!) for daring to go after Republicans!

It wasn't his fault the presidents before him did not make quite as much use of the signing statements as he did. Seriously, didn't they realize that they could keep themselves from being held accountable to any kind of law by simply saying it doesn't apply to them when they sign it?

And, of course, it's not his fault that the democratic majority in Congress, elected as a result of America's disgust with the Republican Party, dare to choose their own path instead of blindly following the orders of the least popular president in 35 years.

Seriously, people. Give it up. You're making America weaker, and your traitorous behavior emboldens the enemy.

New Tactic from President Bush on TSP

Since he cannot go back to warrantless wiretaps without the Republican majority in Congress to shield the administration, President Bush has apparently decided to take a new approach to encroaching upon our civil liberties. Apparently, it's time to update FISA. From the AP, via Yahoo!: "President Bush wants Congress to modernize a law that governs how intelligence agencies monitor the communications of suspected terrorists. 'This law is badly out of date,' Bush said Saturday in his weekly radio address."

President Bush then explained why this law needed updating:

Bush noted that terrorists now use disposable cell phones and the Internet to communicate, recruit operatives, and plan attacks; such tools were not available when FISA passed nearly 30 years ago. He also cited a recently released intelligence estimate that concluded al-Qaida (sic) is using its growing strength in the Middle East to plot attacks on U.S. soil.

This is, of course, a serious issue. However, the President is notoriously silent as to HOW Al Qaeda managed to regain its strength, namely the misguided, poorly planned, underprepared, misrepresented invasion of Iraq, which has drained our resources in a police action. Remember, the Iraqi troops were being trained in 2004 and were almost ready to take over security of their nation. But, instead, 3 years later, instead of fighting the "entity" known as "terror," we are still trying to clean up the mess we made in Iraq. In other words, President Bush's actions made America weaker, and now he wants a revamped law that strips more of our civil liberties (an encroachment into our 4th amendment protections) to "fix" what he jacked up.

Let's see what, exactly is outdated about FISA. The law requires a FISA judge grant the warrant as long as the allegation is not deficient. This is not a probable cause requirement; it's a "are all the spaces filled in and are there no typos" requirement. In other words, as long as the agency requesting the warrant fills it out right, it cannot be denied. In the history of FISA, over 96% (and possibly higher, but I'm not going to do the calculation right now) of the applications have been approved. But that's not all. The law also allows for the intelligence agencies to collect intelligence through warrantless wiretaps even WITHOUT A WARRANT. From the language of the Act:

[W]hen the Attorney General reasonably determines that (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information and before an order authorizing such surveillance can ... be obtained; he may authorize the emergency employment of electronic surveillance if [a properly authorized] judge ... is informed by the Attorney General or his designee ... and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance (emphasis mine).

In other words, surveillance can be done without a warrant for up to three days, before an application for a warrant which cannot be denied due to lack of probable cause (a 4th amendment requirement) must be asked for. Yet this is insufficient to fight the war on terror that took a backseat when the President sought to fight a war that need not have been fought, at least not when we did. Rubbish.

Fair and Balanced

I was watching some political talking heads program on Fox this morning. The show itself was all right, I didn't it really slanted right as far as many think, except for one part. One guy, in discussing the commutation of the Libby sentence, in the same breath, connected it with the terrorist attacks in London and suggested a justification for the warrantless wiretaps, inviting a debate.

I have a piece to say on that issue, being, 1. the Fourth Amendment still exists, 2. there is a legitimate means for the Executive to obtain warrants with little to no probable cause (indeed the FISA courts are, by law, not allowed to gauge the substance of the FISA warrant applications, rather can only check to see if there are no procedural irregularities), and 3. the President has yet to show that using FISA, which allows for warrants AFTER THE FACT is unduly burdensome to such a point that it would justify violating the Supreme Law of the Land, other than to say "trust us."

I'm sorry, but the President, has burned through all his trust; there needs to be some substance to support it. Referring to all acts of insurgency as "Al Qaeda" without any evidence connecting them to Al Qaeda is not the way to do it. The attacks in London are evidence that wiretapping can be used to limit potential threats, but it does not suggest that I need to forfeit my right to be free from unreasonable governmental intrusion. And to the guy on Fox (I don't check any of their names), if you are so sold on winning the war on terror, enlist. Do your part. Don't tell me what rights I need to give up or defend against having stripped from me.

Sorry, I'm tired and grumpy.

A tale of two hypotheses

The first one comes from a while back, when the President insisted that he did not need a Warrant to listen in on the telephone conversations of United States Citizens, despite Supreme Court rulings otherwise, the Fourth Amendment, and an unquestionably reasonable alternative to his program (the FISA courts which have a 99.96% Warrant Approval rate and are available post facto). The president's position was that this was a necessary tool in the war against terror and that it's not unconstitutional as he understands the Constitution, and besides, if you have nothing to hide, then why the concern if someone is listening, but they won't be listening anyway, because the NSA follows strict guidelines, but we can't tell you what those are because it would help the Enemy (you know, Terror, which is not an entity, but a theory and therefore the War on Terror could conceivably never end). i can't begin to tell you how many people (all Bush apologists) who argued that this is a minor inconvenience - yes, facially violating the Fourth Amendment is a "minor inconvenience" - and I need to be "rational."

Now, these same people are defending Alberto Gonzalez and the administration in defending him against requests to go up before Congress pursuant to a subpoena to testify as to the involvement regarding the firing of 8 US Attorneys for, what the document dumps have illustrated, appear to be partisan reasons (i.e. they weren't "loyal bushies"). The president has gone so far as to say that he has proposed "reasonable" alternatives to testifying under oath, which is, talking off the record, and that the information Gonzalez et al. possess is protected under "executive privilege." This is a separation of powers issue, and there is certainly an issue to consider as to whether or not this is something that could be protected by executive privilege. I would like to limit executive privilege, and I fear that the administration's attempts to expand it would impermissibly extend the power of the executive branch to such point that there may no longer be co-equal branches in government, which is, in my estimation, exactly what this president wants - expansion of Presidential powers under a Unitary Executive Theory. For those Republicans who support this concept, I ask you, are these the keys you'd be willing to hand Hillary should she win in '08? That scares me almost as much as Bush operating under this theory, but I digress. The point is that in this case, the President has essentially been asked - "if you have nothing to hide, then why do you resist these people going under oath to testify?" One idea, as John Dean, the author of the link above says: "[Y]ou show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising the president."

Anyway, here's the contrast - the first problem is a Constitutional issue - the administration violated the Fourth Amendment - the rights preserved for the protection of the People from the overreaching of the Government. The second one is a personal issue. Nowhere in the Constitution or the Bill of Rights is there any mention of "executive privilege." The concept, such as it exists, is a creature of the Administrations past (Nixon and Clinton relied on this concept), and any reach it does have is limited and should remain limited - lest we become a nation of subjects and no longer a nation of the Free.