Friday, January 13, 2006
Fri Jan 13, 2006 at 08:54:11 PM PDT
Lost in all the flurry over Alito this week is the fact that the President explicitly employed the language of treason against his war critics:
So I ask all Americans to hold their elected leaders to account, and demand a debate that brings credit to our democracy -- not comfort to our adversaries.
And here we have witnessed another facet of the Imperial Presidency. Instead of embracing the criticism of his Iraq policy--which is coming from both sides of the aisle--as the hallmark of a functioning democracy, he instead labels those who dare to question his judgment as traitors. He uses the language of treason, arguing that we are giving "comfort" to our enemies. Mind you, the phrase "comfort to the enemy" is in fact a legal term of art. The language is derived from the Constitution itself: Article III defines treason in part as "adhering to [the States'] Enemies, giving them Aid and Comfort."
Like a King afraid of losing his crown, Bush preserves his power by destroying his enemy. We've seen it time and time again. With John Kerry, with whistleblowers, and now, with Congressman Murtha. His minions like CNS "News" (and no, I'm not linking to that shit) weave webs of lies and scuttle back to him, heads bowed, proclaiming, "Yes, my liege, we have destroyed him!"
Congressman Murtha has posted a reply at the Huffington Post. Welcome to Bush's America, where war heroes are forced to defend themselves against betraying the very flag they bled for. Where those who cry out to save this nation are cast as disobedient radicals unworthy of attention. Where there is no more debating the Presidency.
No, all must remain silent. All that is allowed in this kingdom now is a monologue, streaming out from the White House, a one-way flow of putrid propaganda and deception.
It is that tactic employed by this Presidency which comforts our enemies. Soulless terrorists listen to Bush implying American citizens are traitors and they laugh. They laugh because this is the America they want to see. The President turning on his people, and our ideals of dissent and democracy renounced by our own leaders.
This language of treason must be rejected. It only binds our hands and gags our tongues. Today more than ever, Bush must be told he cannot declare us traitors--we speak out only to save the nation that we love.
Thursday, January 12, 2006
from The Nation
Finally, it has started. People have begun to speak of impeaching President George W. Bush--not in hushed whispers but openly, in newspapers, on the Internet, in ordinary conversations and even in Congress. As a former member of Congress who sat on the House Judiciary Committee during the impeachment proceedings against President Richard Nixon, I believe they are right to do so.
I can still remember the sinking feeling in the pit of my stomach during those proceedings, when it became clear that the President had so systematically abused the powers of the presidency and so threatened the rule of law that he had to be removed from office. As a Democrat who opposed many of President Nixon's policies, I still found voting for his impeachment to be one of the most sobering and unpleasant tasks I ever had to undertake. None of the members of the committee took pleasure in voting for impeachment; after all, Democrat or Republican, Nixon was still our President.
At the time, I hoped that our committee's work would send a strong signal to future Presidents that they had to obey the rule of law. I was wrong.
Like many others, I have been deeply troubled by Bush's breathtaking scorn for our international treaty obligations under the United Nations Charter and the Geneva Conventions. I have also been disturbed by the torture scandals and the violations of US criminal laws at the highest levels of our government they may entail, something I have written about in these pages [see Holtzman, "Torture and Accountability," July 18/25, 2005]. These concerns have been compounded by growing evidence that the President deliberately misled the country into the war in Iraq. But it wasn't until the most recent revelations that President Bush directed the wiretapping of hundreds, possibly thousands, of Americans, in violation of the Foreign Intelligence Surveillance Act (FISA)--and argued that, as Commander in Chief, he had the right in the interests of national security to override our country's laws--that I felt the same sinking feeling in my stomach as I did during Watergate.
As a matter of constitutional law, these and other misdeeds constitute grounds for the impeachment of President Bush. A President, any President, who maintains that he is above the law--and repeatedly violates the law--thereby commits high crimes and misdemeanors, the constitutional standard for impeachment and removal from office. A high crime or misdemeanor is an archaic term that means a serious abuse of power, whether or not it is also a crime, that endangers our constitutional system of government.
The framers of our Constitution feared executive power run amok and provided the remedy of impeachment to protect against it. While impeachment is a last resort, and must never be lightly undertaken (a principle ignored during the proceedings against President Bill Clinton), neither can Congress shirk its responsibility to use that tool to safeguard our democracy. No President can be permitted to commit high crimes and misdemeanors with impunity.
But impeachment and removal from office will not happen unless the American people are convinced of its necessity after a full and fair inquiry into the facts and law is conducted. That inquiry must commence now.
On December 17 President Bush acknowledged that he repeatedly authorized wiretaps, without obtaining a warrant, of American citizens engaged in international calls. On the face of it, these warrantless wiretaps violate FISA, which requires court approval for national security wiretaps and sets up a special procedure for obtaining it. Violation of the law is a felony.
While many facts about these wiretaps are unknown, it now appears that thousands of calls were monitored and that the information obtained may have been widely circulated among federal agencies. It also appears that a number of government officials considered the warrantless wiretaps of dubious legality. Reportedly, several people in the National Security Agency refused to participate in them, and a deputy attorney general even declined to sign off on some aspects of these wiretaps. The special FISA court has raised concerns as well, and a judge on that court has resigned, apparently in protest.
FISA was enacted in 1978, against the backdrop of Watergate, to prevent the widespread abuses in domestic surveillance that were disclosed in Congressional hearings. Among his other abuses of power, President Nixon ordered the FBI to conduct warrantless wiretaps of seventeen journalists and White House staffers. Although Nixon claimed the wiretaps were done for national security purposes, they were undertaken for political purposes and were illegal. Just as Bush's warrantless wiretaps grew out of the 9/11 attacks, Nixon's illegal wiretaps grew out of the Vietnam War and the opposition to it. In fact, the first illegal Nixon wiretap was of a reporter who, in 1969, revealed the secret bombing of Cambodia, a program that President Nixon wanted to hide from the American people and Congress. Nixon's illegal wiretaps formed one of the many grounds for the articles of impeachment voted against him by a bipartisan majority of the House Judiciary Committee.
Congress explicitly intended FISA to strike a balance between the legitimate requirements of national security on the one hand and the need both to protect against presidential abuses and to safeguard personal privacy on the other. From Watergate, Congress knew that a President was fully capable of wiretapping under a false claim of national security. That is why the law requires court review of national security wiretaps. Congress understood that because of the huge invasion of privacy involved in wiretaps, there should be checks in place on the executive branch to protect against overzealous and unnecessary wiretapping. At the same time, Congress created special procedures to facilitate obtaining these warrants when justified. Congress also recognized the need for emergency action: The President was given the power to start a wiretap without a warrant as long as court permission was obtained within three days.
FISA can scarcely be claimed to create any obstacle to justified national security wiretaps. Since 1978, when the law was enacted, more than 10,000 national security warrants have been approved by the FISA court; only four have been turned down.
Two legal arguments have been offered for the President's right to violate the law, both of which have been seriously questioned by members of Congress of both parties and by the nonpartisan Congressional Research Service in a recent analysis. The first--highly dangerous in its sweep and implications--is that the President has the constitutional right as Commander in Chief to break any US law on the grounds of national security. As the CRS analysis points out, the Supreme Court has never upheld the President's right to do this in the area of wiretapping, nor has it ever granted the President a "monopoly over war-powers" or recognized him as "Commander in Chief of the country" as opposed to Commander in Chief of the Army and Navy. If the President is permitted to break the law on wiretapping on his own say-so, then a President can break any other law on his own say-so--a formula for dictatorship. This is not a theoretical danger: President Bush has recently claimed the right as Commander in Chief to violate the McCain amendment banning torture and degrading treatment of detainees. Nor is the requirement that national security be at stake any safeguard. We saw in Watergate how President Nixon falsely and cynically used that argument to cover up ordinary crimes and political misdeeds.
Ours is a government of limited power. We learn in elementary school the concept of checks and balances. Those checks do not vanish in wartime; the President's role as Commander in Chief does not swallow up Congress's powers or the Bill of Rights. Given the framers' skepticism about executive power and warmaking--there was no functional standing army at the beginning of the nation, so the President's powers as Commander in Chief depended on Congress's willingness to create and expand an army--it is impossible to find in the Constitution unilateral presidential authority to act against US citizens in a way that violates US laws, even in wartime. As Justice Sandra Day O'Connor recently wrote, "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens."
The second legal argument in defense of Bush's warrantless wiretaps rests on an erroneous statutory interpretation. According to this argument, Congress authorized the Administration to place wiretaps without court approval when it adopted the 2001 resolution authorizing military force against the Taliban and Al Qaeda for the 9/11 attacks. In the first place, the force resolution doesn't mention wiretaps. And given that Congress has traditionally placed so many restrictions on wiretapping because of its extremely intrusive qualities, there would undoubtedly have been vigorous debate if anyone thought the force resolution would roll back FISA. In fact, the legislative history of the force resolution shows that Congress had no intention of broadening the scope of presidential warmaking powers to cover activity in the United States. According to Senator Tom Daschle, the former Senate majority leader who negotiated the resolution with the White House, the Administration wanted to include language explicitly enlarging the President's warmaking powers to include domestic activity. That language was rejected. Obviously, if the Administration felt it already had the power, it would not have tried to insert the language into the resolution.
What then was the reason for avoiding the FISA court? President Bush suggested that there was no time to get the warrants. But this cannot be true, because FISA permits wiretaps without warrants in emergencies as long as court approval is obtained within three days. Moreover, there is evidence that the President knew the warrantless wiretapping was illegal. In 2004, when the violations had been going on for some time, President Bush told a Buffalo, New York, audience that "a wiretap requires a court order." He went on to say that "when we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
Indeed, the claim that to protect Americans the President needs to be able to avoid court review of his wiretap applications rings hollow. It is unclear why or in what way the existing law, requiring court approval, is not satisfactory. And, if the law is too cumbersome or inapplicable to modern technology, then it is unclear why the President did not seek to revise it instead of disregarding it and thus jeopardizing many otherwise legitimate anti-terrorism prosecutions. His defenders' claim that changing the law would have given away secrets is unacceptable. There are procedures for considering classified information in Congress. Since no good reason has been given for avoiding the FISA court, it is reasonable to suspect that the real reason may have been that the wiretaps, like those President Nixon ordered in Watergate, involved journalists or anti-Bush activists or were improper in other ways and would not have been approved.
It is also curious that President Bush seems so concerned with the imaginary dangers to Americans posed by US courts but remains so apparently unconcerned about fixing some of the real holes in our security. For example, FBI computers--which were unable to search two words at once, like "flight schools," a defect that impaired the Bureau's ability to identify the 9/11 attackers beforehand--still haven't been brought into the twenty-first century. Given Vice President Cheney's longstanding ambition to throw off the constraints on executive power imposed in response to Watergate and the Vietnam War, it may well be that the warrantless wiretap program has had much more to do with restoring the trappings of the Nixon imperial presidency than it ever had to do with protecting national security.
Subverting Our Democracy
A President can commit no more serious crime against our democracy than lying to Congress and the American people to get them to support a military action or war. It is not just that it is cowardly and abhorrent to trick others into giving their lives for a nonexistent threat, or even that making false statements might in some circumstances be a crime. It is that the decision to go to war is the gravest decision a nation can make, and in a democracy the people and their elected representatives, when there is no imminent attack on the United States to repel, have the right to make it. Given that the consequences can be death for hundreds, thousands or tens of thousands of people--as well as the diversion of vast sums of money to the war effort--the fraud cannot be tolerated. That both Lyndon Johnson and Richard Nixon were guilty of misleading the nation into military action and neither was impeached for it makes it more, not less, important to hold Bush accountable.
Once it was clear that no weapons of mass destruction would be found in Iraq, President Bush tried to blame "bad intelligence" for the decision to go to war, apparently to show that the WMD claim was not a deliberate deception. But bad intelligence had little or nothing to do with the main arguments used to win popular support for the invasion of Iraq.
First, there was no serious intelligence--good or bad--to support the Administration's suggestion that Saddam Hussein and Al Qaeda were in cahoots. Nonetheless, the Administration repeatedly tried to claim the connection to show that the invasion was a justified response to 9/11 (like the declaration of war against Japan for Pearl Harbor). The claim was a sheer fabrication.
Second, there was no reliable intelligence to support the Administration's claim that Saddam was about to acquire nuclear weapons capability. The specter of the "mushroom cloud," which frightened many Americans into believing that the invasion of Iraq was necessary for our self-defense, was made up out of whole cloth. As for the biological and chemical weapons, even if, as reported, the CIA director told the President that these existed in Iraq, the Administration still had plenty of information suggesting the contrary.
The deliberateness of the deception has also been confirmed by a British source: the Downing Street memo, the official record of Prime Minister Tony Blair's July 2002 meeting with his top Cabinet officials. At the meeting the chief of British intelligence, who had just returned from the United States, reported that "Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy." In other words, the Bush Administration was reported to be in the process of cooking up fake intelligence and facts to justify going to war in Iraq.
During the Nixon impeachment proceedings, I drafted the resolution of impeachment to hold President Nixon accountable for concealing from Congress the bombing of Cambodia he initiated. But the committee did not approve it, probably because it might appear political--in other words, stemming from opposition to the war instead of to the President's abuse of his warmaking powers.
With respect to President Bush and the Iraq War, there is not likely to be any such confusion. Most Americans know that his rationale for the war turned out to be untrue; for them the question is whether the President lied, and if so, what the remedies are for his misconduct.
The Failure to Take Care
Upon assuming the presidency, Bush took an oath of office in which he swore to take care that the laws would be faithfully executed. Impeachment cannot be used to remove a President for maladministration, as the debates on ratifying the Constitution show. But President Bush has been guilty of such gross incompetence or reckless indifference to his obligation to execute the laws faithfully as to call into question whether he takes his oath seriously or is capable of doing so.
The most egregious example is the conduct of the war in Iraq. Unconscionably and unaccountably, the Administration failed to provide US soldiers with bulletproof vests or appropriately armored vehicles. A recent Pentagon study disclosed that proper bulletproof vests would have saved hundreds of lives. Why wasn't the commencement of hostilities postponed until the troops were properly outfitted? There are numerous suggestions that the timing was prompted by political, not military, concerns. The United States was under no imminent threat of attack by Saddam Hussein, and the Administration knew it. They delayed the marketing of the war until Americans finished their summer vacations because "you don't introduce new products in August." As the Downing Street memo revealed, the timeline for the war was set to start thirty days before the 2002 Congressional elections.
And there was no serious plan for the aftermath of the war, a fact also noted in the Downing Street memo. The President's failure as Commander in Chief to protect the troops by arming them properly, and his failure to plan for the occupation, cost dearly in lives and taxpayer dollars. This was not mere negligence or oversight--in other words, maladministration--but reflected a reckless and grotesque disregard for the welfare of the troops and an utter indifference to the need for proper governance of a country after occupation. As such, these failures violated the requirements of the President's oath of office. If they are proven to be the product of political objectives, they could constitute impeachable offenses on those grounds alone.
Torture and Other Abuses of Power
President Bush recently proclaimed, "We do not torture." In view of the revelations of the CIA's secret jails and practice of rendition, not to mention the Abu Ghraib scandal, the statement borders on the absurd, recalling Nixon's famous claim, "I am not a crook." It has been well documented that abuse (including torture) of detainees by US personnel in connection with the wars in Afghanistan and Iraq has been systemic and widespread. Under the War Crimes Act of 1996 it is a crime for any US national to order or engage in the murder, torture or inhuman treatment of a detainee. (When a detainee death results, the act imposes the death penalty.) In addition, anyone in the chain of command who condones the abuse rather than stopping it could also be in violation of the act. The act simply implements the Geneva Conventions, which are the law of the land.
The evidence before us now suggests that the President himself may have authorized detainee abuse. In January 2002, after the Afghanistan war had begun, White House Counsel Alberto Gonzales advised President Bush in writing that US mistreatment of detainees might be criminally prosecutable under the War Crimes Act. Rather than order the possibly criminal behavior to stop, which under the Geneva Conventions and the War Crimes Act the President was obligated to do, Bush authorized an "opt-out" of the Geneva Conventions to try to shield the Americans who were abusing detainees from prosecution. In other words, the President's response to reports of detainee abuse was to prevent prosecution of the abusers, thereby implicitly condoning the abuse and authorizing its continuation. If torture or inhuman treatment of prisoners took place as a result of the President's conduct, then he himself may have violated the War Crimes Act, along with those who actually inflicted the abuse.
There are many other indications that the President has knowingly condoned detainee abuse. For example, he never removed Defense Secretary Rumsfeld from office or disciplined him, even though Rumsfeld accepted responsibility for the abuse scandal at Abu Ghraib, admitted hiding a detainee from the Red Cross--a violation of the Geneva Conventions and possibly the War Crimes Act, if the detainee was being abused--and issued orders (later withdrawn) for Guantánamo interrogations that violated the Geneva Conventions and possibly the War Crimes Act.
More recently, the President opposed the McCain Amendment barring torture when it was first proposed, and he tacitly supported Vice President Cheney's efforts to get language into the bill that would allow the CIA to torture or degrade detainees. Now, in his signing statement, the President announced that he has the right to violate the new law, claiming once again the right as Commander in Chief to break laws when it suits him.
Furthermore, despite the horrors of the Abu Ghraib scandal, no higher-ups have been held accountable. Only one officer of any significant rank has been punished. It is as though the Watergate inquiry stopped with the burglars, as the Nixon coverup tried and failed to accomplish. President Bush has made no serious effort to insure that the full scope of the scandal is uncovered or to hold any higher-ups responsible, perhaps because responsibility goes right to the White House.
It is imperative that a full investigation be undertaken of Bush's role in the systemic torture and abuse of detainees. Violating his oath of office, the Geneva Conventions and the War Crimes Act would constitute impeachable offenses.
Mobilizing the nation and Congress in support of investigations and the impeachment of President Bush is a critical task that has already begun, but it must intensify and grow. The American people stopped the Vietnam War--against the wishes of the President--and forced a reluctant Congress to act on the impeachment of President Nixon. And they can do the same with President Bush. The task has three elements: building public and Congressional support, getting Congress to undertake investigations into various aspects of presidential misconduct and changing the party makeup of Congress in the 2006 elections.
Drumming up public support means organizing rallies, spearheading letter-writing campaigns to newspapers, organizing petition drives, door-knocking in neighborhoods, handing out leaflets and deploying the full range of mobilizing tactics. Organizations like AfterDowningStreet.org and ImpeachPac.org, actively working on a campaign for impeachment, are able to draw on a remarkably solid base of public support. A Zogby poll taken in November--before the wiretap scandal--showed more than 50 percent of those questioned favored impeachment of President Bush if he lied about the war in Iraq.
An energized public must in turn bear down on Congress. Constituents should request meetings with their Senators and Representatives to educate them on impeachment. They can also make their case through e-mail, letters and phone calls. Representatives and Senators should be asked specifically to support hearings on and investigations into the deceptions that led to the Iraq War and President Bush's role in the torture scandals. Senators should also be asked to insure that the hearings already planned by the Senate Judiciary Committee into warrantless wiretaps are comprehensive. The hearings should evaluate whether the wiretaps were genuinely used for national security purposes and why the President chose to violate the law when it was so easy to comply with it. Representatives should specifically be asked to co-sponsor Congressman John Conyers's resolution calling for a full inquiry into presidential abuses.
Finally, if this pressure fails to produce results, attention must be focused on changing the political composition of the House and Senate in the upcoming 2006 elections. If a Republican Congress is unwilling to investigate and take appropriate action against a Republican President, then a Democratic Congress should replace it.
As awful as Watergate was, after the vote on impeachment and the resignation of President Nixon, the nation felt a huge sense of relief. Impeachment is a tortuous process, but now that President Bush has thrown down the gauntlet and virtually dared Congress to stop him from violating the law, nothing less is necessary to protect our constitutional system and preserve our democracy.
Ethically Challenged Lindsey Graham says "Advice and Consent?! We Don't Need No Stinking Advice and Consent!"
January 11th, 2006 9:21 pm
Alito and His Coaches
For Supreme Court nominee, hearings are an inside game
By James Ridgeway with Michael Roston / Village Voice
WASHINGTON, D.C.--In the first hours of Samuel Alito's Senate confirmation hearings on Monday, Judiciary Committee member Lindsey Graham, the Republican senator from South Carolina, may very well have irreparably compromised himself.
At the hearing, Graham told Alito, nominee for the U.S. Supreme Court, that he had already decided in Alito's favor. "I don't know what kind of vote you're going to get, but you'll make it through. It's possible you could talk me out of voting for you, but I doubt it. So I won't even try to challenge you along those lines."
That certainly ought to be the case. Graham is one of a group of Republicans who have been coaching Alito behind the scenes. The Wall Street Journal's Washington Wire reported before the hearings began:
"On Thursday, Sen. Lindsey Graham of South Carolina, one of the 'gang of 14' who sits on Judiciary, joined a so-called moot court session at the White House.''
The coaching session for Alito has raised a few eyebrows.
"Coaching a judicial nominee behind-the-scenes is not the proper role for a Judiciary Committee member who must subsequently sit in judgment on that nominee," writes Think Progress, a project of the American Progress Action Fund. "It could be a violation of the ethical duties of a senator."
Writing about the Alito situation, Think Progress cites Senate Rule 37 in the Senate Ethics Manual. The rule says: "No Member, officer, or employee shall engage in any outside business or professional activity or employment for compensation which is inconsistent or in conflict with the conscientious performance of official duties."
Think Progress further cites the ethics manual, saying that language has been interpreted as prohibiting "compensated employment or uncompensated positions on boards, commissions, or advisory councils where such service could create a conflict with an individual's Senate duties due to appropriation, oversight, authorization, or legislative jurisdiction as a result of Senate duties."
If this is true, how can Graham make an impartial decision about Alito based on what he learns at the Alito hearings? Graham has already made up his mind.
Lindsey Graham (R-SC) Protects Alito's Bigotry. Republican Party is still a White Man's Club.
Judge Alito claims he doesn’t remember his joining a group that opposed the admission of women and minorities to Princeton.
With the help of Lindsey Graham (R-SC) he claims he’s not a closet bigot.
The Media tries to play down Alito's Membership in the group as something that happened 30 years ago, although Alito remembered being in the group when he applied for a job in Reagan's Administration in 1985... (how 30 years ago is 1985, I'll never know, but then I was never that good at math) and we all know Reagan loves his bigots. Say it with me.... JAMES G. WATTS!
So let’s check the record…. Does Alito’s record as a Judge show that he’s balanced when he considers a discrimination case? Uhhh, no. That would be a big NO. Time and again when faced with a claim of discrimination, Alito sided with the white man or the corporation. Nice balance there Judge. Every single claim of discrimination is crap? I doubt that.
It’s not like Alito is going to come out and admit he’s a bigot. But the facts suggest otherwise. You should be ashamed of yourself Lindsey.
Wednesday, January 11, 2006
By Stephen Henderson and Howard Mintz
WASHINGTON - As the Bush administration defends its right to eavesdrop on Americans without court permission, a look at Supreme Court nominee Samuel Alito's record on search and seizure matters reveals how few limits he has imposed on the government's power to gather evidence.
A Knight Ridder analysis of more than 300 written opinions by Alito, for example, reveals that he has almost never found a government search unconstitutional and that he has argued to relax warrant requirements and to broaden the kinds of searches that warrants permit.
There are a few exceptional cases in Alito's record, notably a 1998 ruling in which he rejected the search of a black driver's car for a handgun because police practically admitted that race influenced their decision to stop the man.
But, overall, his record in this area has produced near uniform results in favor of government authority.
His work in this area frequently has drawn sharp disagreement from his colleagues on the 3rd Circuit Court of Appeals in Philadelphia, one of whom accused him of approving an "Orwellian" invasion of privacy in one case.
Alito, whose Senate confirmation hearings begin Monday, likely will face pointed questions about his record in this area.
Along with his views on the breadth of presidential power, his search and seizure work offers clues as to how he might approach a case challenging the domestic spying program.
In one 2004 case, for example, Alito didn't find fault with an 18-month, round-the-clock surveillance operation that was never approved by a judge.
Charles Hobson, an attorney with the Criminal Justice Legal Foundation, a group that advocates the rights of crime victims and their families, said Alito's record has to be considered in appropriate context.
Most criminal appeals based on search and seizure challenges fail, he said, because the Fourth Amendment, which limits government searches, probably is "the most pragmatic of all constitutional amendments."
"Reasonableness is what you have to balance in these cases, and if the remedy for a violation is to exclude evidence that could convict the guilty, the burden is going to be quite high," Hobson said.
"What I would say from his record overall is that he's more appreciative of public safety interests, but he's not out of the mainstream."
One of the cases that illustrates how comfortable Alito can be with government surveillance powers came in the federal criminal investigation of Robert Lee Sr., who once headed the International Boxing Federation.
In the late 1990s, the FBI conducted an 18-month undercover probe of Lee that involved round-the-clock audio and video surveillance of his conversations in a hotel suite with Douglas Beavers, an informant. Agents didn't seek a warrant for the surveillance.
Lee argued that evidence from the wiretap was all gathered in violation of right to privacy.
But Alito, writing a majority opinion in February 2004, endorsed the legality of the undercover operation, saying that as long as the material used against Lee was the same as what the informant would have testified to in a courtroom, there was no constitutional problem.
Alito also reasoned that Beavers had given consent for the surveillance, even if Lee hadn't, and that was sufficient to waive Lee's privacy rights.
The Supreme Court's precedents agree that warrants aren't needed in some cases where informants consent to surveillance.
"A person has no legitimate expectation of privacy in conversation with a person who consents to the recording of the conversations," Alito wrote.
The decision drew a sharp dissent from Judge Theodore McKee, who was particularly concerned the operation went unchecked by any judicial oversight.
"The limitations of that Orwellian capability were not subject to any court order," he wrote.
Alito also has argued that the scope of warrants should be interpreted broadly, sometimes beyond what the warrant says. In this area of law, the rule has long been: If it's in the warrant it's fair game, if it isn't, it's not.
Still, in one case, Alito deferred to government authorities who conducted a broad search of a wholesale distributor's premises with a warrant that didn't specify what police were looking for or how it tied into the alleged criminal activity.
The prohibition against such "general" warrants is the foundation of the constitutional limit on search and seizure. But Alito said the warrant wasn't general but was only "too broad" and therefore legal under a Supreme Court exception to warrant requirements.
A dissent in the case noted that the warrant was "so lacking in particularity that no reasonably well-trained officer could execute it in good faith." It also said Alito's reasoning allowed the high court's exception to "swallow" the Constitution's rule against general warrants.
New documents released to the press in December 2005 show federal agencies have been infiltrating and conducting surveillance on a wide range of nonprofits, in what appears to be a policy of treating lawful dissent as an act of terrorism. An NBC story revealed that the Pentagon has used a program meant to protect U.S. military installations, in order to spy on peace and other groups. In addition, FBI files released as part of a lawsuit filed by the American Civil Liberties Union (ACLU) in December 2004 show investigations of groups concerned with everything from poverty relief to the environment.
On Dec. 14, 2005 NBC published a story based on a 400-page Dept. of Defense (DOD) document that lists more than 1,500 "suspicious incidents" from the previous year. These included a number of peaceful nonprofit activities, such as a Fort Worth, FL Quaker group planning a protest of military recruitment in area high schools. The DOD document referenced over four dozen anti-war meetings and protests. DOD deemed 24 of these incidents as no threat to national security, but did not delete them from its Talon database.
The information in Talon is sent to the Counterintelligence Field Activity agency (CIFA), whose secrecy has troubled some members of Congress. Rep. Jane Harmon (D-CA), ranking member of the House Intelligence Committee, has raised concerns with CIFA and met with committee chair Pete Hoekstra (R-MI) regarding those concerns. However, the details of that meeting were not made public.
After it came to light that Talon had been used to monitor peaceful groups, the Pentagon ordered a review of the program. The Washington Post reported on Dec. 15, 2005 that the Pentagon's preliminary review concluded the Talon database had not been maintained correctly, quoting a senior official, who explained, "You can also make the argument that these things should never have been put in the database in the first place until they were confirmed as threats." The DOD surveillance, however, does not appear to have been inadvertent. A DOD briefing document, cited in the NBC story, indicated a policy of surveillance of protest groups, stating, "We have noted increased communication and encouragement between protest groups using the Internet..."
The FBI's use of Joint Terrorism Task Force (JTTF) resources to spy on domestic groups engaging in peaceful protest has come to light through litigation filed by the ACLU. OMB Watch reported on several instances of surveillance of peace, civil rights and environmental groups last year, based on documents obtained by the ACLU through the Freedom of Information Act. (See FBI Documents Reveal Further Spying on Peace, Civil Rights Groups, OMB Watcher [Sept. 6, 2005].)
Similar incidents were revealed in Dec. 2005. First, the ACLU of Colorado announced release of documents showing the FBI had tracked the names and license plate numbers of people that attended a protest at the North American Wholesale Lumber Association's convention in Colorado Springs in June 2002. The documents released to the ACLU showed that JTTF recommended a domestic terrorism investigation of people planning to participate in a training on nonviolent protest.
The Colorado documents also revealed a FBI investigation of the Colorado Campaign for Middle East Peace, because the group's website promoted a Feb. 2003 anti-war demonstration in Colorado Springs. According to the ACLU report, the FBI conducted surveillance of a car pool meeting place for people attending the event. Of the incidents, ACLU of Colorado Legal Director Mark Silverstein explained, "The FBI is unjustifiably treating nonviolent public protest as though it were domestic terrorism. The FBI's misplaced priorities threaten to deter legitimate criticism of government policy while wasting taxpayer resources that should be directed to investigating real terrorists."
Still more ACLU documents were released later that month. The New York Times reported that over 2,300 pages of FBI material revealed surveillance of a wide variety of groups, including the Indianapolis Vegan Project, the antipoverty group Catholic Workers, Greenpeace, and People for the Ethical Treatment of Animals. The documents showed that, in addition to surveillance, the FBI has used informants within targeted groups to collect information.
The FBI countered that it does not target organizations because of their beliefs. Ann Beson, ACLU associate legal director, however, argues the Bush administration "has engaged every possible agency, from the Pentagon to NSA to the FBI, to engage in spying on Americans," calling the current climate reminiscent of "the days of J. Edgar Hoover."
Bush Sought ‘Way’ To Invade Iraq? CBS seems surprised... have they every heard of the Downing Street Memo?
Jan. 11, 2004(CBS) A year ago, Paul O'Neill was fired from his job as George Bush's Treasury Secretary for disagreeing too many times with the president's policy on tax cuts.
Now, O'Neill - who is known for speaking his mind - talks for the first time about his two years inside the Bush administration. His story is the centerpiece of a new book being published this week about the way the Bush White House is run.
Entitled "The Price of Loyalty," the book by a former Wall Street Journal reporter draws on interviews with high-level officials who gave the author their personal accounts of meetings with the president, their notes and documents. [Simon and Schuster, the book's publisher, and CBSNews.com, are both units of Viacom.]
But the main source of the book was Paul O'Neill. Correspondent Lesley Stahl reports. Paul O'Neill says he is going public because he thinks the Bush Administration has been too secretive about how decisions have been made.
Will this be seen as a “kiss-and-tell" book?
“I've come to believe that people will say damn near anything, so I'm sure somebody will say all of that and more,” says O’Neill, who was George Bush's top economic policy official.
In the book, O’Neill says that the president did not make decisions in a methodical way: there was no free-flow of ideas or open debate.
At cabinet meetings, he says the president was "like a blind man in a roomful of deaf people. There is no discernible connection," forcing top officials to act "on little more than hunches about what the president might think."
This is what O'Neill says happened at his first hour-long, one-on-one meeting with Mr. Bush: “I went in with a long list of things to talk about, and I thought to engage on and as the book says, I was surprised that it turned out me talking, and the president just listening … As I recall, it was mostly a monologue.”
He also says that President Bush was disengaged, at least on domestic issues, and that disturbed him. And he says that wasn't his experience when he worked as a top official under Presidents Nixon and Ford, or the way he ran things when he was chairman of Alcoa.
O'Neill readily agreed to tell his story to the book's author Ron Suskind – and he adds that he's taking no money for his part in the book.
Suskind says he interviewed hundreds of people for the book – including several cabinet members.
O'Neill is the only one who spoke on the record, but Suskind says that someone high up in the administration – Donald Rumsfeld - warned O’Neill not to do this book.
Was it a warning, or a threat?
“I don't think so. I think it was the White House concerned,” says Suskind. “Understandably, because O'Neill has spent extraordinary amounts of time with the president. They said, ‘This could really be the one moment where things are revealed.’"Not only did O'Neill give Suskind his time, he gave him 19,000 internal documents.
“Everything's there: Memoranda to the President, handwritten "thank you" notes, 100-page documents. Stuff that's sensitive,” says Suskind, adding that in some cases, it included transcripts of private, high-level National Security Council meetings. “You don’t get higher than that.”
And what happened at President Bush's very first National Security Council meeting is one of O'Neill's most startling revelations.
“From the very beginning, there was a conviction, that Saddam Hussein was a bad person and that he needed to go,” says O’Neill, who adds that going after Saddam was topic "A" 10 days after the inauguration - eight months before Sept. 11.
“From the very first instance, it was about Iraq. It was about what we can do to change this regime,” says Suskind. “Day one, these things were laid and sealed.”
As treasury secretary, O'Neill was a permanent member of the National Security Council. He says in the book he was surprised at the meeting that questions such as "Why Saddam?" and "Why now?" were never asked.
"It was all about finding a way to do it. That was the tone of it. The president saying ‘Go find me a way to do this,’" says O’Neill. “For me, the notion of pre-emption, that the U.S. has the unilateral right to do whatever we decide to do, is a really huge leap.”
And that came up at this first meeting, says O’Neill, who adds that the discussion of Iraq continued at the next National Security Council meeting two days later.
He got briefing materials under this cover sheet. “There are memos. One of them marked, secret, says, ‘Plan for post-Saddam Iraq,’" adds Suskind, who says that they discussed an occupation of Iraq in January and February of 2001. Based on his interviews with O'Neill and several other officials at the meetings, Suskind writes that the planning envisioned peacekeeping troops, war crimes tribunals, and even divvying up Iraq's oil wealth.
He obtained one Pentagon document, dated March 5, 2001, and entitled "Foreign Suitors for Iraqi Oilfield contracts," which includes a map of potential areas for exploration.
“It talks about contractors around the world from, you know, 30-40 countries. And which ones have what intentions,” says Suskind. “On oil in Iraq.”
During the campaign, candidate Bush had criticized the Clinton-Gore Administration for being too interventionist: "If we don't stop extending our troops all around the world in nation-building missions, then we're going to have a serious problem coming down the road. And I'm going to prevent that."
“The thing that's most surprising, I think, is how emphatically, from the very first, the administration had said ‘X’ during the campaign, but from the first day was often doing ‘Y,’” says Suskind. “Not just saying ‘Y,’ but actively moving toward the opposite of what they had said during the election.”
The president had promised to cut taxes, and he did. Within six months of taking office, he pushed a trillion dollars worth of tax cuts through Congress.
But O'Neill thought it should have been the end. After 9/11 and the war in Afghanistan, the budget deficit was growing. So at a meeting with the vice president after the mid-term elections in 2002, Suskind writes that O'Neill argued against a second round of tax cuts.
“Cheney, at this moment, shows his hand,” says Suskind. “He says, ‘You know, Paul, Reagan proved that deficits don't matter. We won the mid-term elections, this is our due.’ … O'Neill is speechless.”
”It was not just about not wanting the tax cut. It was about how to use the nation's resources to improve the condition of our society,” says O’Neill. “And I thought the weight of working on Social Security and fundamental tax reform was a lot more important than a tax reduction.”
Did he think it was irresponsible? “Well, it's for sure not what I would have done,” says O’Neill.
The former treasury secretary accuses Vice President Dick Cheney of not being an honest broker, but, with a handful of others, part of "a praetorian guard that encircled the president" to block out contrary views. "This is the way Dick likes it," says O’Neill. Meanwhile, the White House was losing patience with O'Neill. He was becoming known for a series of off-the-cuff remarks his critics called gaffes. One of them sent the dollar into a nosedive and required major damage control.
Twice during stock market meltdowns, O'Neill was not available to the president: He was out of the country - one time on a trip to Africa with the Irish rock star Bono.
“Africa made an enormous splash. It was like a road show,” says Suskind. “He comes back and the president says to him at a meeting, ‘You know, you're getting quite a cult following.’ And it clearly was not a joke. And it was not said in jest.”
Suskind writes that the relationship grew tenser and that the president even took a jab at O'Neill in public, at an economic forum in Texas.
The two men were never close. And O'Neill was not amused when Mr. Bush began calling him "The Big O." He thought the president's habit of giving people nicknames was a form of bullying. Everything came to a head for O'Neill at a November 2002 meeting at the White House of the economic team.
“It's a huge meeting. You got Dick Cheney from the, you know, secure location on the video. The President is there,” says Suskind, who was given a nearly verbatim transcript by someone who attended the meeting.
He says everyone expected Mr. Bush to rubber stamp the plan under discussion: a big new tax cut. But, according to Suskind, the president was perhaps having second thoughts about cutting taxes again, and was uncharacteristically engaged.
“He asks, ‘Haven't we already given money to rich people? This second tax cut's gonna do it again,’” says Suskind.
“He says, ‘Didn’t we already, why are we doing it again?’ Now, his advisers, they say, ‘Well Mr. President, the upper class, they're the entrepreneurs. That's the standard response.’ And the president kind of goes, ‘OK.’ That's their response. And then, he comes back to it again. ‘Well, shouldn't we be giving money to the middle, won't people be able to say, ‘You did it once, and then you did it twice, and what was it good for?’"
But according to the transcript, White House political advisor Karl Rove jumped in.
“Karl Rove is saying to the president, a kind of mantra. ‘Stick to principle. Stick to principle.’ He says it over and over again,” says Suskind. “Don’t waver.”
In the end, the president didn't. And nine days after that meeting in which O'Neill made it clear he could not publicly support another tax cut, the vice president called and asked him to resign.
With the deficit now climbing towards $400 billion, O'Neill maintains he was in the right.
But look at the economy today.
“Yes, well, in the last quarter the growth rate was 8.2 percent. It was terrific,” says O’Neill. “I think the tax cut made a difference. But without the tax cut, we would have had 6 percent real growth, and the prospect of dealing with transformation of Social Security and fundamentally fixing the tax system. And to me, those were compelling competitors for, against more tax cuts.” While in the book O'Neill comes off as constantly appalled at Mr. Bush, he was surprised when Stahl told him she found his portrait of the president unflattering.
“Hmmm, you really think so,” asks O’Neill, who says he isn’t joking. “Well, I’ll be darned.”
“You're giving me the impression that you're just going to be stunned if they attack you for this book,” says Stahl to O’Neill. “And they're going to say, I predict, you know, it's sour grapes. He's getting back because he was fired.” “I will be really disappointed if they react that way because I think they'll be hard put to,” says O’Neill.
Is he prepared for it?
“Well, I don't think I need to be because I can't imagine that I'm going to be attacked for telling the truth,” says O’Neill. “Why would I be attacked for telling the truth?”
White House spokesman Scott McClellan was asked about the book on Friday and said "The president is someone that leads and acts decisively on our biggest priorities and that is exactly what he'll continue to do."
The Shrub Comes to Louisville.... Protests Ensue
W has come to Louisville today to give a speach in which it is presumed he will continue his ridiculous attacks on anyone who sees things any way but his way. This my way or the highway approach has been a constant for the shrub from the day he was appointed president by the Supreme Court. The Imperial Presidency in all it's glory.
The "audience" for his canned comments has been hand picked and screened to ensure that only those who agree with the president will be present. Although every one of the audience members is a backer of the president, the local media has been reporting that they were all admitted and seated as early as 11:45 local time. Strangely enough, this in an hour before the President is even scheduled to land in Louisville. His remarks are set to begin by 1:20 local time.
I ask you gentle reader, how much support can this man actually have, when he can't even sit in a room full of average American citizens? Why is it that even people who are his strongest supporters, those who don't ever question his judgment, still are required to be screened and seated an hour before his plane even lands in the State? And what kind of people would put up with that kind of America?
There are more protesters outside than people inside to hear the president's speach. Welcome to Bushworld....
WASHINGTON, Nov. 26 - In the fall of 1985, Concerned Alumni of Princeton was entering a crisis.
The group's members at the time included Samuel A. Alito Jr., now President Bush's nominee to the Supreme Court, although there is no evidence that he played an active or prominent role.
The group had been founded in 1972, the year that Judge Alito graduated, by alumni upset that Princeton had recently begun admitting women. It published a magazine, Prospect, which persistently accused the administration of taking a permissive approach to student life, of promoting birth control and paying for abortions, and of diluting the explicitly Christian character of the school.
As Princeton admitted a growing number of minority students, Concerned Alumni charged repeatedly that the administration was lowering admission standards, undermining the university's distinctive traditions and admitting too few children of alumni. "Currently alumni children comprise 14 percent of each entering class, compared with an 11 percent quota for blacks and Hispanics," the group wrote in a 1985 fund-raising letter sent to all Princeton graduates.
By the mid-1980's, however, Princeton students and recent alumni were increasingly finding such statements anachronistic or worse.
"Is the issue the percentage of alumni children admitted or the percentage of minorities?" Jonathan Morgan, a conservative undergraduate working with the group, asked its board members that fall in an internal memorandum. "I don't see the relevance in comparing the two, except in a racist context (i.e. why do we let in so many minorities and not alumni children?)," he continued.
By 1987, the group had sputtered out.
Mr. Morgan's memorandum and other records of Concerned Alumni are contained at the Library of Congress in the papers of William A. Rusher, a leader of the group and a former publisher of National Review.
Those records and others at Mudd Library at Princeton give no indication that Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, was among the group's major donors. He was not an active leader of the group, and two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.
But in an application for a promotion in the Reagan administration in the fall of 1985, Judge Alito was asked to provide information about his "philosophical commitment" to administration policies and listed his membership in Concerned Alumni.
When the White House disclosed the application this month, liberal groups opposed to his nomination pounced on the connection. "The question for senators to consider and to ask is why Samuel Alito would brag about his membership in an organization known for its fervent hostility to the inclusion of women and minorities at Princeton," said Ralph G. Neas, president of People for the American Way.
Steve Schmidt, a White House spokesman, declined to comment. But former leaders of Concerned Alumni say they do not remember the group objecting to the inclusion of minorities, only to the university's affirmative action policies.
Andrew P. Napolitano, a friend and Princeton classmate of Judge Alito, questioned the relevance of Judge Alito's association with the group. "His membership probably tells you that his social inclinations are conservative," said Mr. Napolitano, who became a leader of the group, "but he is so intellectually honest that he labored mightily to keep those inclinations from influencing his decisions on the bench."
As for how Judge Alito might rule as a Supreme Court justice, Mr. Napolitano, a former Superior Court judge in New Jersey, said, "Who knows what will happen?"
By 1985 Concerned Alumni had become well known in conservative circles. Financed in part by Shelby Cullom Davis, a member of the 1930 class and the ambassador to Switzerland in the Nixon administration, the group announced in an early fund-raising pamphlet that its goals included a less-liberal faculty and "a more traditional undergraduate population."
A pamphlet for parents suggested that "racial tensions" and loose oversight of campus social life were contributing to a spike in campus crime. A brochure for Princeton alumni warned, "The unannounced goal of the administration, now achieved, of a student population of approximately 40 percent women and minorities will largely vitiate the alumni body of the future."
In 1975, an alumni panel that included Senator Bill Frist of Tennessee, the current Republican leader and a 1974 Princeton graduate, concluded that Concerned Alumni had "presented a distorted, narrow and hostile view of the university that cannot help but have misinformed and even alarmed many alumni" and "undoubtedly generated adverse national publicity." (Mr. Frist could not be reached for comment.) In 1977, The New Yorker devoted 20 pages to a gently derisive history of the group's squabbles with the university.
By the 1980's, however, Concerned Alumni had added a new cause: the defense of the exclusive "eating clubs," where many upper class Princeton students took their meals, and especially the three all-male clubs. All now admit women.
As a student, Judge Alito had not joined any of the clubs, taking his meals at a dining hall. But the leaders of Concerned Alumni and the editors of Prospect regarded the clubs as pillars of the university's distinctive social life that were under attack by the Princeton administration.
When the administration proposed a new system of residential colleges with their own dining halls, Prospect denounced the idea as a potential threat to the system of eating clubs. The magazine charged that, like affirmative action, the plan was "intended to create racial harmony."
Prospect portrayed the proposal as an effort to end the de facto segregation of the campus in which black students were concentrated in one dormitory and mostly did not belong to the clubs. "Doubtless, there will be many who regard this as mere stalling, and prejudice by another name," an unsigned 1982 editorial argued in defense of the magazine's position. "If realistic approaches to problems must be called dirty names because we do not like them, well, there is no remedy for it."
The magazine's content also grew increasingly provocative under the editorship of conservative rising stars, including Dinesh D'Souza and later Laura Ingraham.
A March 1984 article by Mr. D'Souza told the story of a Puerto Rican first-year student whose mother sought to remove her from the school after learning that she was having sex with a male student and was receiving sex-education from the school. The magazine said the administration had increased the female student's financial aide to enable her to stay, and it accused Princeton of giving new meaning to the phrase "in loco parentis."
Hundreds of students signed a petition protesting the article as an invasion of privacy, and the campus debate received national attention.
Later that year, Concerned Alumni fund-raising letters to Princeton graduates charged that the director of the university's health clinic had "celebrated the fact that 31 out of 33 pregnant students had abortions after receiving counseling from Princeton's sex clinic."
In January 1985 - a few months before Judge Alito filled out his Reagan administration application - William G. Bowen, Princeton's president, issued a statement calling the letter "callous" and "outrageous."
In an interview, Ms. Ingraham said liberal groups were making too much of Judge Alito's membership. "Stop the presses!" she said. "Sam Alito, a conservative, was once a member of a conservative Princeton alumni group."
Mr. D'Souza said supporters of Concerned Alumni were motivated by a fear that "traditional values" at Princeton had come under attack, but their specific concerns varied from academic standards to the athletic program. Judge Alito's support for the group "might tell you something," he said, "but it is hard to know what."
Amnesty releases new claims of torture, ill-treatment at Guantanamo Bay
LONDON (AFX) - Amnesty International has released fresh claims of the alleged torture and ill-treatment of terrorist suspects on the fourth anniversary of detainees being taken to Guantanamo Bay in Cuba. The testimonies from three men echo similar claims made by released prisoners and include allegations from one of the men that he was abducted by the US Central Intelligence Agency (CIA) as part of its 'extraordinary rendition' policy. Abdulsalam al-Hela, a 34-year-old businessman from Sanaa, Yemen, allegedly 'disappeared' after travelling to Egypt for a meeting with a construction firm in September 2002. The father-of-two was shackled, blindfolded and gagged, put on a small, private plane and taken, possibly via Azerbaijan, to Afghanistan, where he was held 'in secret, illegally and incommunicado' for two years, Amnesty said. Amnesty said al-Hela suffered psychological torture at five prisons in or around Kabul, a number of them underground, before being transferred to Guantanamo Bay in September 2004. Amnesty called for increased pressure to be put on the US government for the prisoners to be either released or given a fair trial and repeated its view that Guantanamo should be shut and an inquiry launched into the torture claims. The most detailed testimony came from Jumah al-Dossari, a 32-year-old Bahraini national who was captured in Afghanistan in late 2001 and taken to Guantanamo in January 2002. In an account of his detention, given to Amnesty through his lawyer, he repeated claims made by a former detainee last year that US soldiers regularly desecrated copies of the Koran. He also spoke of beatings, sexual assaults, threats to his family and having to endure lengthy periods in solitary confinement, plus disease, illness and infection being rife among those held at the camp. Journalist Sami al Hajj, a 35-year-old Sudanese national working for Arabic satellite news channel Al-Jazeera, made similar allegations after being detained following an assignment covering the 2002 conflict in Afghanistan.
| By KERMIT L. HALL |
First published: Wednesday, January 11, 2006
| Revelations that President Bush authorized the National Security Agency to eavesdrop on electronic communications should disturb all Americans. The President asserts that his duty as a wartime commander-in-chief requires him to take such measures. |
Asked how he felt about resulting violations of civil liberties, the President responded bluntly: "If somebody from al-Qaida is calling you, we'd like to know why."
He justifies eavesdropping based on the limited nature of the activity, the fact that Congress knew of and acquiesced in it, that presidential prerogative is supported by history, and that his and NSA's lawyers approved of it. The President and his supporters regularly remind Americans of Supreme Court Justice Robert H. Jackson's famous line that "the Constitution is not a suicide pact."
Much like Lyndon Johnson during the Vietnam War, President Bush has little patience with "nervous Nellies." If history is any guide, however, we have every reason to be cautious.
It was to stop similar snooping that Congress in the 1970s passed laws reigning in the NSA, the CIA and the military intelligence services, including in 1978 the Foreign Intelligence Surveillance Act. Sen. Frank Church, who led the charge, also regularly invoked Justice Jackson, but relied on different words. "It is not the function of our government to keep the citizen from falling into error," Church quoted Jackson, "it is the function of the citizen to keep the government from falling into error."
The twin concepts of a written Bill of Rights and separation of powers were integral to doing so. Congress in 1978 respected both of these concepts when it struck a balance between the nation's need for spying, even on its own citizens, with a long tradition of protecting rights. The instrument to do so was the Foreign Intelligence Surveillance Court, composed of federal judges appointed by the chief justice of the United States, not the president.
Notably, FISC was granted power to issue warrants for wiretapping and other forms of electronic surveillance directed at persons engaged in espionage or international terrorism against the United States. By all accounts FISC has performed well, especially in the wake of Sept. 11, 2001. President Bush, however, has chosen to ignore FISC and engaged unilaterally in activities that should have been appropriately supported by warrants from this court.
Given the President's penchant for selecting justices for the Supreme Court committed to the original intent of the framers of the Constitution, his posture is puzzling. Perhaps that is why his detractors have compared him to another George, this one the English monarch at the time of the American Revolution.
The framers of the Bill of Rights fully understood the value of having judges involved with matters of search and seizure. While they had no experience with electronic communications, they grasped the importance of subjecting law enforcement officials to judicial oversight. Under the scheme of separation of powers, they required law enforcement to make a case in support of a warrant to invade the privacy of another.
The leaders of the new nation were a hard-nosed lot, however. They understood the fragility of the new republic and the necessity of secrecy to protect it. They were also deeply suspicious of power -- period; they meant to limit it by separating and dividing those officials responsible for exercising it. That is why the first Congress in framing the Bill of Rights crafted not only the Fourth Amendment to curb unlawful searches and seizures but assigned to magistrates the task of overseeing its operation.
The wording of the Fourth Amendment reminds us, as did Justice Jackson's suicide reference, that the framers tempered liberty with respect for security and endorsed protection against only "unreasonable" searches and seizures. They did not set a particularly high threshold for the executive to secure a search warrant. "No warrants shall issue," the amendment reads, "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."
The architects of the Bill of Rights appreciated that even the greatest patriots could draw different inferences about what was reasonable and probable. Best to leave these tasks to impartial judges instead of an officer engaged in trying to solve a crime or, in this instance, intercept a message involving terrorist activity. Asking law enforcement or intelligence services to set alone the standard for search and seizure would be tantamount to asking the fox to guard the constitutional chicken coup.
That is why President Bush's declaration that Department of Justice and NSA lawyers find the warrantless searches legal falls flat.
President Bush does seem to be on firm ground when he proclaims that the perfection of liberty should not be the enemy of the common good. In what promises to be an extended period of terrorist threat, the President reasonably protests that he must be able to act quickly, just as a police officer must be able to thwart a wrongdoer.
Still, the President should recognize that by flouting FISC and relying on his own advisers to legitimate his actions he defies the framers he so reveres and the tradition of skepticism about power that they so wisely enshrined.
He might turn once again to Justice Jackson, who warned, "We can afford no liberties with liberty itself." If he does not, then he may well end up promoting constitutional suicide by eavesdropping.
Kermit L. Hall is a legal historian and president of the University at Albany. He is editor-in-chief of The Oxford Companion to the Supreme Court of the United States (2nd. rev. ed., 2005) and The Oxford Companion to American Law (2002), and co-editor with Kevin McGuire of The Judicial Branch (2005).
Tuesday, January 10, 2006
from The National Review
by Rick LowryIt’s the Republicans, stupid.
Republicans are looking for "their" John McCain. The popular Arizona maverick is already a Republican, of course. But the GOP needs a McCain in the "Keating Five" sense. Back in 1990, Senate Democrats roped McCain into the scandal over savings and loan kingpin Charles Keating on tenuous grounds, just so not all the senators involved would be Democrats.
The GOP now craves such bipartisan cover in the Jack Abramoff scandal. Republicans trumpet every Democratic connection to Abramoff in the hope that something resonates. Senate Minority Leader Harry Reid (D., Nev.), took more than $60,000 from Abramoff clients! North Dakota Democratic Sen. Byron Dorgan used Abramoff's skybox! It is true that any Washington influence peddler is going to spread cash and favors as widely as possible, and 210 members of Congress have received Abramoff-connected dollars. But this is, in its essence, a Republican scandal, and any attempt to portray it otherwise is a misdirection.
Abramoff is a Republican who worked closely with two of the country's most prominent conservative activists, Grover Norquist and Ralph Reed. Top aides to the most important Republican in Congress, Tom DeLay (R., Tex.) were party to his sleazy schemes. The only people referred to directly in Abramoff's recent plea agreement are a Republican congressmen and two former Republican congressional aides. The GOP members can make a case that the scandal reflects more the way Washington works than the unique perfidy of their party, but even this is self-defeating, since Republicans run Washington.
Republicans must take the scandal seriously and work to clean up in its wake. The first step was the permanent ouster of Tom DeLay as House Republican majority leader, a recognition that he is unfit to lead as long as he is underneath the Abramoff cloud. The behavior of the right in this matter contrasts sharply with the left's lickspittle loyalty to Bill Clinton, whose maintenance in power many liberals put above any of their principles. Next, Republicans will have to show they can again embrace the spirit of reform that swept them to power in 1994.
To this end, GOP lawmakers are rushing to introduce lobbying reform. Anything that increases transparency is welcome. But lobbying reform's animating pretense is that lawmakers are all upstanding — until they come under the corruptive spell of lobbyists. In every transaction, however, there has to be a willing buyer and seller.
There are two deeply rooted sources of corruption in Washington. One is that many members of Congress believe that they would be making much more than their $160,000-a-year salaries if they were in some other line of work. This sense is compounded when they watch their former 30-year-old aides go to work on K Street for $300,000 a year. This is how someone like Tom DeLay — otherwise a conviction politician — justifies playing the best golf courses in the world on someone else's dime and getting special interests to funnel easy money to his wife.
It will be a sign that Congress has learned something if it bans all privately funded travel. If a trip is truly educational and necessary, the public should fund it; if, on the other hand, a member of Congress wants to enjoy fine resorts, he should quit, practice law (or whatever), and earn the income to support his desired lifestyle.
The other problem is that Washington makes obscure decisions that enrich small groups of people. Most everyone in Washington supports making these decisions because it increases his or her power. But if Congress really wants to lessen the malign influence of lobbyists, it should reform the inherently corruptible process whereby the Interior Department recognizes new Native American tribes so they can mint money by opening casinos, and end the practice of "earmarking" federal dollars for local and special-interest projects. It's no accident that Abramoff saw the business potential in both of these processes.
Of course, making these sort of changes would be painful. That's why it is tempting for Republicans to look for a John McCain instead.
by Chris Bowers Well, yes, he is lying
, but I wanted to ask other people the same question. So, during the lunch break, I went down to the press area with Tim Tagaris
, armed with only a single question:
"Do you believe Judge Alito is telling the truth about his association with Concerned Alumni for Princeton?"
I managed to ask the question to the Presidents of three major advocacy organizations, and also to Senator Durbin. Here were the responses:
- Ralph Neas of People for the American Way said that Alito's response to this line of questioning was "not credible." Mr. Neas added that he personally remembered the 1980's pretty well, including what organizations he was involved with at the time.
- Nan Aron of the Alliance for Justice said that it is "hard to know what to believe" and she asked "how do you forget" being a member of an organization for eight or nine years. I had a simple response to this question that generated laughs among the people around me: "because he's lying."
- Debra Ness of the National Partnership for Women and Families said "no." She told me that Alito not remembering his association with such an organization "stretches the imagination."
- Tim actually managed to get video of Senator Durbin's good response to my question. Check out the Kicking Ass for the video. Here is the transcript:
I couldnt understand his answer. That they removed ROTC was the reason he belonged to this organization? I mean, it totally did not follow. I mean the only the thing you can argue is that somehow or another women and minorities were opposed to to ROTC. I mean, I can't, I don't understand it, and I'm going to ask him if I get chance. It just made no sense to me.
Alito is lying about his involvement with Concerned Alumni for Princeton, and the reason he is lying is because membership with such an organization demonstrates an embarrassing level of opposition to civil rights in this country that should disqualify someone from being a Supreme Court Justice. That he is unwilling to be truthful during his confirmation hearings further demonstrates just how unqualified he is.
Judge Alito: The Most Out Of Touch Lawyer In America, Either That Or He's a Liar.
Today at the Judge's Confirmation hearing he was asked repeatedly about whether the Supreme Court should have decided Bush v. Gore, the case that settled the 2000 election, Alito declined to answer, saying he hadn't studied the case.
If this is true, Alito must be the dumbest lawyer in America. Every single lawyer I know has read this case multiple times. It decided the fucking presidency for god's sake! What kind of a lawyer didn't read it and debate it?
An incompetent hack.... or a liar.
Judge Alito: Not Even Qualified To Sit On An Appeals Court.
Alito fails the test
By HOWARD DEAN
Originally published January 9, 2006
It's been widely acknowledged that President Bush had a bad year in 2005.
One of the problems America faces as a result is the White House's willingness to make decisions based on what benefits the administration politically rather than what's right for America.
The nomination of Judge Samuel A. Alito Jr. to replace Supreme Court Justice Sandra Day O'Connor is just one example of this. The president hopes to make up ground with his right-wing base instead of appointing someone who will have the confidence of a wide range of Americans.
Over the past few months, as we've learned more about Judge Alito's core beliefs and the kind of justice he would be, it has become clear why the Senate should reject his nomination.
Judge Alito's decisions, such as his attacks on the Family Medical Leave protections and his willingness to excuse the grossest form of sexual harassment in the workplace based on technicalities, have harmed working people.
Judge Alito has also attacked Americans' personal liberties by approving the inappropriate strip search of a 10-year-old child and defending the construction of all-white juries by unscrupulous prosecutors trying black defendants.
A Supreme Court justice must show impartiality and fairness. Judge Alito does not pass that test.
Further complicating Judge Alito's nomination is a lack of credibility that has emerged as he has tried to distance himself from his record and prior statements. He has supported government overreaching into women's personal lives. He has memory lapses regarding membership in the ultraconservative group Concerned Alumni of Princeton, and he failed to keep his word when he did not recuse himself from a major Vanguard mutual funds case despite pledging under oath - during confirmation hearings for his 3rd U.S. Circuit Court judgeship - to do so.
On Nov. 3, The Boston Globe reported Judge Alito held $390,000 worth of Vanguard mutual funds during the time he ruled for the company in a civil case before him. These facts are not in dispute. When the chief administrative judge for the circuit reviewed the case on complaint, he vacated Judge Alito's decision and assigned the case to another panel. Judge Alito complained vigorously. He has since failed to offer a credible explanation about why he broke his promise to recuse himself from the case.
Every American should shudder at the prospect of an ethically tone-deaf judge sitting on the one institution in Washington not yet in the pocket of the extremists who comprise the right wing of the Republican Party.
A culture of corruption, arrogance of power and insensitivity to the appearance of conflict of interest has plagued key Republican officeholders for the past five years. This includes Republican Senate Leader Bill Frist's ownership of stock that he falsely claimed was in a blind trust; the repeated evidence that Halliburton, formerly run by Vice President Dick Cheney, benefited from no-bid contracts in Iraq; and revelations that our government may be illegally spying on Americans and paying journalists for positive stories.
House Judiciary Chairman F. James Sensenbrenner Jr. has traveled the world, racking up $177,000 worth of lobbyist-funded trips. Tom DeLay has been indicted on money-laundering charges. Republican super-lobbyist Jack Abramoff pleaded guilty to three federal criminal charges. Karl Rove still has a security clearance, despite leaking the identity of a CIA agent. The vice president's chief of staff has been indicted on charges that he lied to a grand jury. We need honesty and backbone in Washington, most especially on the court.
I oppose Judge Alito's nomination. I want to be proud of our government again. That can only happen if the rule of law, and the integrity that it requires, are clearly foremost in the consideration of every decision made by the court.
There are simply too many writings in Judge Alito's record that show a willingness to favor government power over individual liberties.
How can we believe that he will put aside his personal beliefs and keep an open mind when he already has broken one promise made to the American people?
America needs strength now, and America needs a Supreme Court where personal and political considerations do not appear to influence any decision at any time. Judge Alito's nomination must be rejected. And President Bush needs to nominate someone to the court who will bring us together, not continue to drive us apart.Howard Dean is chairman of the Democratic National Committee. His e-mail is firstname.lastname@example.org.
U.S. Troops Winning Hearts and Minds.....
January 9th, 2006 4:40 pm
US troops seize award-winning Iraqi journalistGuardian
American troops in Baghdad yesterday blasted their way into the home of an Iraqi journalist working for the Guardian and Channel 4, firing bullets into the bedroom where he was sleeping with his wife and children.
Ali Fadhil, who two months ago won the Foreign Press Association young journalist of the year award, was hooded and taken for questioning. He was released hours later.
Dr Fadhil is working with Guardian Films on an investigation for Channel 4's Dispatches programme into claims that tens of millions of dollars worth of Iraqi funds held by the Americans and British have been misused or misappropriated.
The troops told Dr Fadhil that they were looking for an Iraqi insurgent and seized video tapes he had shot for the programme. These have not yet been returned.
The director of the film, Callum Macrae, said yesterday: "The timing and nature of this raid is extremely disturbing. It is only a few days since we first approached the US authorities and told them Ali was doing this investigation, and asked them then to grant him an interview about our findings.
"We need a convincing assurance from the American authorities that this terrifying experience was not harassment and a crude attempt to discourage Ali's investigation."
Dr Fadhil was asleep with his wife, their three-year-old daughter, Sarah, and seven-month-old son, Adam, when the troops forced their way in.
"They fired into the bedroom where we were sleeping, then three soldiers came in. They rolled me on to the floor and tied my hands. When I tried to ask them what they were looking for they just told me to shut up," he said.
Congress Disbands, Cites Irrelevancy
January 10, 2005
Bernard Weiner, The Crisis PapersWASHINGTON (Associated Press)
- President George W. Bush today applauded the decision by the House of Representatives and the Senate to disband.
"Everything changed on 9/11," said the President. "The American people join me in thanking Congress for finally having the wisdom and patriotism to recognize this changed situation in the country and the world. Although these legislators have served our nation well over the years, now all that bickering, partisan sniping, and obstructionism blocking my programs are gone.
"In a word, I know what needs to be done. And now we can reach those goals with aggressive speed and determination, knowing that all our citizens are united under one leader. Those seeking to throw the American government into chaos and anarchy with their talk of impeachment and cutting-and-running from our battles abroad have been silenced."
A joint statement from Republican and Democratic leaders in both branches of Congress was issued late last night: "It appears that the Executive Branch has made the Legislative branch redundant, by outsourcing our law-making functions to itself. They are deciding which laws to obey, and have the Justice Department and the courts under their control. So, rather than waste taxpayers' money spinning our wheels, we're simply going out of business."
Most members said they have been offered lucrative contracts by lobbying organizations, to use their access to contacts in the White House and the military services. Others said they would be going to work for the expanded Pentagon and Homeland Security Department, which today announced that they would be taking over the functions of the Department of State and all the intelligence agencies.
Defense Secretary Rumsfeld said one of his first priorities will be to reorganize Amtrak and "make sure that the trains run on time."
The Departments of Labor and Housing & Urban Development will be disbanded, said new White House Press Secretary Ann Coulter, as will the various regulatory bodies such as the Environmental Protection Agency, Federal Communications Commission, Securities & Exchange Commission, OSHA, and the Civil Rights Division of the Justice Department.
The new Secretary of Education, Rev. Pat Robertson, announced that a national history and civics curriculum would be written by Under Secretaries Bill Bennett and Lynn Cheney, and the Biology Curriculum by Rev. Jerry Falwell and Lou Dobson.ALWAYS "WITHIN THE LAW"
As for the Judicial Branch, Coulter said: "Now that the Congress is no longer an impediment in getting patriotic judges onto the Supreme Court, we would anticipate that the Judiciary will remain in business to validate the decisions taken by President Bush. Citizens should feel comforted that therefore our Administration will always be seen as working 'within the law.' But should the Judiciary attempt to interfere with the orderly workings of this administration, we will re-evaluate its role and function."
Not all members of the House and Senate went quietly into new establishment jobs or retirement. Several Senators and Representatives, mainly Democrats and a few moderate Republicans, said they would move to the Western Coastal states (California, Oregon and Washington), or to the Northeast region (Massachusetts, New York, Maine, Vermont), where they will work for referenda on the possibility of joint secession.
Reportedly, the Bush Administration, which has nullified the 22nd Amendment to the Constitution, thus permitting President Bush to continue to serve in perpetuity, has said it has no problem with the attempts of the "traitorous regions" to sever themselves from the "patriotic mainstream" of America. "They are doing this to gain attention for their demands for more inclusion in policy-making. But surely they realize that if they do leave the United States, that would make them foreign countries, and thus potential recipients of our shock and awe policies," said Vice President Dick Cheney. "I don't think they're going anywhere. They'll come around - or will devoutly wish that they had."SEND THESE KIDS TO CAMP
We attempted for this story to contact various anti-Bush activists and progressive website editors, to get their reactions to the extraordinary political events of the past few days, but all our inquiries were forwarded to the Department of Homeland Security. Robert Novak, press secretary for the Department's newly-created Security Services (S.S.), which was set up to deal with "recalcitrants" and "malcontents," said all those we inquired about were "unavailable for comment."
Other sources, who have chosen to remain anonymous, report that under the leadership of Richard Perle thousands have been moved to "re-education" camps in the Nevada desert, Northern Alaska oil refuge and other undisclosed locations, or were "rendered" to special camps in allied countries. (Note: Novak said the S.S. wants to make clear that these "malcontents" will not be sent to the "relocation centers reserved for homosexuals, winners of National Endowment for the Arts grants, and other deviants.")
The offending websites have been taken over or shut down, said Deputy S.S. spokesman Bill O'Reilly, "because they have been spreading slanderous lies and unsubstantiated charges against our Leader and his policies. Anger and rebellion have no place in our new order; when those troublemakers return from the re-education centers, we expect they will have new, positive attitudes about the value of Bush Administration initiatives."
O'Reilly said that no action would be taken against the editors and publishers of the country's major newspapers, networks and cable TV and radio news outlets. "They established their patriotic credentials long ago, and are either supportive of the Bush agenda or know when to keep their traps shut," said O'Reilly.
Rush Limbaugh has been appointed director of the National Institutes of Health's pharmacy, and Jeff Gannon is now Protocol Chief in charge of entertainment and overnight stays at the White House.
President Bush announced today that he would fill the seats of three retiring Supreme Court justices - John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg - with Michael Brown, Alberto Gonzales and Harriet Miers.
"These new appointees are three of our finest public servants, who have demonstrated great loyalty to my person and policies," said President Bush. "They know that everything changed on 9/11 and that me and my Administration are working hard for the American people. They will serve the nation well in making sure that our Administration's actions always will remain 'within the law' - by validating with their unanimous opinions those decisions I take in the service of protecting the American people from threats to our national security. Everything changed on 9/11; the terrorists hate us for our freedoms, you know."THE PRESIDENT'S MERCY
Finally, President Bush today issued a full amnesty and/or pardon for those felons from his Administration and Congress currently serving time in prison or those under federal indictment or grand jury investigation. Included among those hundreds are the Cabinet, Karl Rove, I. Lewis Libby, Tom DeLay, John Ashcroft, Bill Frist, Duke Cunningham, and such stalwart Administration backers as Jack Abramoff, Ralph Reed and Kenneth Lay.
"These are loyal Americans all, who have worked tirelessly for me and thus for the good of our nation, and were hounded by over-zealous prosecutors with hidden agendas," said President Bush. "These pardons and amnesties will ensure that they return to doing their good work in the public and private sectors, and will continue advising me well."
Switching places with the pardoned felons are such "over-zealous prosecuters" as Patrick Fitzgerald, James Comey, Ronnie Earle, and Elliot Spitzer. Among notables known to have been rounded up and sent for re-education, based on their harsh critiques of Bush policy: Lawrence Tribe, Anthony Lewis, Richard Clarke, Paul O'Neill, Lawrence Wilkerson, Paul Krugman, Molly Ivins, Noam Chomsky, Frank Rich and Seymour Hersh. Numerous other notables reportedly have fled to France.
President Bush said he issued the amnesties now to "have our full and best team in place as we prepare for whatever foreign and domestic actions may come in the immediate future." It is believed he is referring to the impending military action against Syria, Iran, North Korea, Venezuela, Cuba and Bolivia.
More secret prisons are being built to accommodate the expected thousands of detainees from those conflicts. But, said Defense Secretary Rumsfeld, "there will be fewer prisoners than in past wars because we fully intend to exercise our dominance in the nuclear-weaponry field. The advantage in using such WMDs is that it reduces the number of prisoners to care for and also keeps other foreign countries from even thinking about criticizing our policies. In short, it's a win-win for America and for the expansion of freedom around the globe."Bernard Weiner, Ph.D. in government & international relations, has taught at various universities, worked as a writer/editor with the San Francisco Chronicle, and currently co-edits The Crisis Papers.