Wednesday, February 01, 2006

"Whatever standard is applied, only review by a court can ensure that the administration does not spy on ordinary citizens, lawyers . . ."

What a week it's been and we're only on hump day. Monday, the Dems in the Senate refused to filibuster. Tuesday some of the cowards voted "no" and looked like eager puppies expecting praise. We learned of the death of Coretta Scott King Tuesday. Alito got sworn in Tuesday. Bully Boy told the usual lies Tuesday night . . . And it's only Wednesday.

Body of Coretta Scott King To Return To Atlanta Today (Democracy Now!):
And the body of Coretta Scott King is expected to return from Mexico today to her family's home in Atlanta. Scott-King -- the widow of Martin Luther King Junior -- died Monday at the age of 78. She had been in Mexico seeking treatment for ovarian cancer. In Georgia, flags at state buildings were flown at half-staff Tuesday while hundreds of people gathered at her husband's tomb to pay tribute. A funeral service is expected later this week.

I enjoyed reading the thoughts of others who were touched by the passing.

"mrs. king" (Sex and Politics and Screeds and Attitude):
i'd planned to take care of several things today but i just ended up sitting on the sofa and at some point, it was pointed out to me that it was nighfall and that i was sitting in the dark.shortly after that, the phone rang. it had rung all day apparently. i was really out of it. but it was
betty and my reaction is nothing compared to her's. coretta scott king was probably betty's greatest hero outside of her own family. by the way, big thank you to betty for blogging here on friday. she did an excellent job.
she was planning to post and had 2 different views on it. 1 was coretta scott king carried on so she should blog. the other was that she wasn't in the mood to be funny. i asked her what she really wanted to do and she said she really felt like crawling under the covers as soon as she got her kids to bed. i think that's what she should do.
[. . .]
'partners in marriage' is the jargon we like to bandy about now days. but the fact is coretta scott king was a partner in mlk's work. she was involved in the fight for equality before she met mlk and she continued to fight after he passed. they both believed in equality and they both fought for it. she continued the work and . . .

what do you say?
classy woman, strong fighter, trail blazer and inspiration. rest peacefully mrs. king.

Rebecca always lays it out. My visitor didn't e-mail so I'll assume he's gone (he's not missed) but he can't take Rebecca's directness. Many of us love her for that strength.

"Coretta Scott King, Halliburton, Bully Boy & gatekeeping" (Mikey Likes It!):
This was very sad news today. People would start to talk about it on campus and just stop. One of my professors said that was because she did carry on MLK's legacy and kept it alive so it's like losing her and also losing a part of him. She was a really strong and brave woman and I think anyone with any sense at all feels the loss today.

I think Mike's professor got to the heart of the matter. She did carry on the legacy and she and Dr. King are so entwined in history and in our minds that the loss is a heavy one. (Whether the New York Times gets that or not.)

Cindy Sheehan Arrested For Wearing Anti-War T-Shirt At Bush’s Address (Democracy Now!):
Moments before President Bush spoke, anti-war activist Cindy Sheehan was arrested and removed from the House gallery. Sheehan, whose son Casey died in combat in Iraq, was accosted by police after taking her seat and unveiling a T-shirt with an anti-war message. Referring to the number of US soldiers killed in Iraq, the shirt read: "2,242 and how many more?" California Democratic Congressmember Lynn Woolsey, who invited Sheehan to the event, said: "It stunned me because I didn't know in America you could be arrested for wearing a T-shirt with a slogan on it. That's especially so in the Capitol and in the House of Representatives, which is the people's House.''

Cindy Sheehan is ejected and arrested for the apparent felony of wearing a t-shirt with possible intent to free speech & message in the second degree. Meanwhile, the war criminal delivers a speech and gets applause. It's not even suprising anymore. It's no different from jailing peace activists while letting someone convicted of the death of an Iraqi walk.

Please make a point to visit Mikey Likes It! to get Mike's take on today's events. Also make a point to read C.I.'s "The Bush Commission Part I."

Instead of a peace quote tonight, we're going to have a reality check.

"CCR's Responses to State of the Union Defenses of the NSA Surveillance Program" (Center for Constitutional Rights):
The administration has offered a number of arguments in defense of its warrantless NSA surveillance program, which CCR is challenging in a pending lawsuit in federal court, Center for Constitutional Rights v. Bush. We expect that the President will offer many of the following arguments to the country in his State of the Union address, and we offer the following responses:

Getting wiretap orders through the FISA Court in national security cases is too slow a process; the NSA Program allows the government to put wiretaps in place more quickly

FISA allows the government to put surveillance in place first, and go to Court for retroactive approval afterwards. The government has up to 72 hours to go to the Court in such emergency situations. The existing process places no limits whatsoever on the speed with which the government can put a wiretap in place.
The administration has claimed that the government needs to take time to carefully review the factual basis for such wiretaps before even using the emergency procedures, lest the Court reject the application after the fact. This concern is disingenuous, because the FISA Court almost never denies wiretap orders-the Court didn't turn down a single wiretap request in the first 23 years of its existence. From 1995 to 2004, the government made 10,617 applications and had only four rejected.

The "probable cause" standard that must be met to issue a FISA wiretap order is too burdensome; the government should be able to proceed under a lesser "reasonable suspicion" standard

FISA does not require probable cause that a surveillance target has participated in a crime; it only requires probable cause that a target is an agent of a foreign political or terrorist organization. Again, this diminished form of "probable cause" has never been a hard standard for the government to meet: from 1995 to 2004, the government made 10,617 applications to the FISA Court and had only four rejected.
More significantly, in June, 2002, Republican Senator Michael DeWine of Ohio introduced a bill (S.2659) that would "modify the standard of proof for issuance of [FISA] orders ... from probable cause to reasonable suspicion." The Justice Department said in a position statement that "the Administration at this time is not prepared to support" the DeWine amendment. The Justice Department refused to support the amendment because it had no evidence that FISA was hindering its efforts to get the warrants it needed, and because it feared that such wiretaps might violate the Fourth Amendment and thus jeopardize any prosecutions based on such tainted evidence.
Whatever standard is applied, only review by a court can ensure that the administration does not spy on ordinary citizens, lawyers, or political opponents of its policies.

The President has said that if details of the Program become public or are passed into law by Congress, "The enemy will think 'Here's what they do-adjust.'"

Terrorists already know the government is trying to listen in on their communications-the hijackers took elaborate precautions against surveillance even before 9/11, when the nation was not yet on permanent alert.
It makes no difference to al Qaeda whether they are being wiretapped with a warrant or without a warrant. That's only important to the people for whom oversight and accountability of government officials matter-the American public.

Congress implicitly authorized this surveillance when it passed the authorization to use force in Afghanistan (the "AUMF")

Congress made slight adjustments to the wiretapping statutes in December 2001 (extending the period for retroactive approval of wiretaps from 24 to 72 hours), just a few weeks after passing the AUMF. Congress would not have needed to do so if it intended to authorize wholesale surveillance with the AUMF.
In his December 19, 2005 Press Briefing, Attorney General Gonzales said the administration thought about asking Congress for approval of changes to the FISA statute to make the NSA program legal, but they did not ask Congress for permission because they thought Congress would not grant it. It is disingenuous for the administration to say on the one hand that Congress implicitly approved the NSA Program while also saying that they thought Congress would not have approved of it explicitly.

The President has said "not one lawmaker asked me to stop" the surveillance program. Why did Congress acquiesce?

It didn't. Only a few Congressional leaders and select committee members were briefed, and, more importantly, they were briefed alone, without their counsel or legislative staffers present. These conditions guaranteed that they would feel constrained from opposing the program. At the same time, by informing legislators in even this threadbare fashion, the administration made it much less likely that those legislators would feel free to criticize the program once its details became public.

We would have caught the hijackers if this program has been in place before 9/11

The NSA knew that 9/11 hijackers Khalid al-Midhair and Nawaf al-Hamzi were in the United States (in San Diego) prior to the attacks because of a legal wiretap it had on an al Qaeda safe house in Yemen. But-as then-NSA head General Hayden admitted-the NSA never bothered to provide the information to law enforcement agencies because it didn't appreciate its significance.
Law enforcement failed to catch the San Diego hijackers because of a failure to communicate and share information between intelligence agencies, not because the wiretapping laws were too strict.

FISA stood in the way of getting a warrant to search "Twentieth Hijacker" Zacharias Moussaoui's laptop before he was arrested (and well before 9/11)

In the first months after 9/11, the administration claimed that FBI agent Colleen Rowley wanted a FISA warrant to search Zacharias Moussaoui's computer, but she could not obtain one because FBI had no evidence to link him to a "recognized terrorist organization."
This was simply not what the law required at the time Rowley sought the warrant: in testimony in a Sept. 24, 2002 Senate Intelligence Committee hearing, FBI officials admitted that they had gotten bad legal advice. They thought they needed to link Moussaoui to a to a designated terrorist organization, but that was wrong under the law then in place: FISA allowed a warrant to issue if Moussaoui was an agent of any group making preparations for terrorism, regardless of whether it was formally designated as a terrorist organization by the State Department.

If al Qaeda is calling you, the government should be able to listen to the call

If the government had any evidence at all to back up such a claim, it could put a wiretap in place and seek FISA Court approval after the fact under the law. What the government is really claiming is the power to put a wiretap in place where there is no evidence at all that a person on the line is a member of al Qaeda.

The program is legal.

This program is unquestionably illegal-Congress has made all electronic surveillance outside the Wiretap Act and FISA a felony.
Many people within the administration felt this program was illegal. It has been widely reported that Deputy Attorney General James Comey refused to sign off on reauthorization of the Program in March 2004, when John Ashcroft was in the hospital, and White House officials were forced to visit Ashcroft in his hospital bed to seek reapproval.

The President has inherent power to conduct warrantless surveillance to gather foreign intelligence.

The federal appellate court cases the administration cites for this principle are all cases decided under the standards applicable before Congress created FISA (United States v. Clay; United States v. Brown; United States v. Butenko; United States v. Buck; and United States v. Truong). So are the historical precedents: Lincoln's telegraph wiretaps during the civil war, or FDR's wiretaps during World War II.
FISA was intended to be comprehensive, covering all electronic surveillance of foreign powers and their agents, and FISA makes all surveillance outside its terms a felony, including the NSA program.