Thursday, January 26, 2006

Apologies....and new talking points to debunk

For being away for so long. It's not that I haven't been online, or keeping track of the news, but I didn't want to sound like a broken record in my outrage over what's been going on.

However, I don't quite think that will be the case today.

If I were in the White House, I'd be seething over the fact that the Senate record from 2002 shows James Baker of the Justice Department arguing against FISA amendments that would allow warrantless surveillance against non-citizens, believing such a move would be rejected by the courts because it bordered on being unconstitutional. Knight-Ridder had this from its Washington Bureau:

The Foreign Intelligence Surveillance Act, the law governing such operations, was working well, the department said in 2002. A "significant review" would be needed to determine whether FISA's legal requirements for obtaining warrants should be loosened because they hampered counterterrorism efforts, the department said then...

In its 2002 statement, the Justice Department said it opposed a legislative proposal to change FISA to make it easier to obtain warrants that would allow the super-secret National Security Agency to listen in on communications involving non-U.S. citizens inside the United States....

James A. Baker, the Justice Department's top lawyer on intelligence policy, made the statement before the Senate Intelligence Committee on July 31, 2002. He was laying out the department's position on an amendment to FISA proposed by Sen. Mike DeWine, R-Ohio. The committee rejected DeWine's proposal, leaving FISA intact.

So while Congress chose not to weaken FISA in 2002, today Bush and his allies contend that Congress implicitly gave Bush the authority to evade FISA's requirements when it authorized him to use force in response to the Sept. 11, 2001, attacks three days after they occurred - a contention that many lawmakers reject.

And, lest we forget this old chestnut, I think it could be argued that the spying program violates the Posse Comitatus Act of 1878, which laid out specific guidelines for use of the military for police functions within the United States. This law was passed in reaction to the military being used to break up anti-Civil War protests and riots.

The Act reads as follows:
From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section, and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.

The addendum from the 1947 National Security Act reads:
Sec. 375. Restriction on direct participation by military personnel. The Secretary of Defense shall prescribe such regulation as maybe necessary to ensure that any activity (including the provision of any equipment of facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

Finally, we have this from Title 18, Part I, Chapter 6, Section 1385:

Whoever, except in such cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

The National Security Agency is a military agency. It is run by a general in the United States armed forces, it has a large contingent of military staffers, and it answers to the President. The President has argued that the AUMF in Afghanistan applies to the situation at hand, but he is completely off-base. Here's why I think so.

The AUMF reads:


    (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.

Nowhere in the resolution does it say the President can use military force within the United States. The PCA says that the military cannot be used for search, seizure and arrest. The NSA was conducting a whole host of searches of domestic phone usage under an incredibly broad umbrella. There is nothing stopping NSA from intercepting overseas calls. But anything in this country is subject to different rules, and the President blatantly ignored them.

Whether Posse Comitatus will come into play is an open question. I doubt it will be used as an argument, given that it's a much older law, but I think it has some application here.

In any case, the military has once again been abused by a President who has no idea how to use them. I really wish that Dubya talked to his dad once in a while, because his dad used the military quite skillfully.


Anonymous Anonymous said...

It's even worse than that.

Last December 28, Tom Daschle wrote an op-ed in the Washington Post explaining that the AUMF resolution never contemplated domestic surveillance:

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

1:02 PM  

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