"Captain Compassion" <daranc@NOSPAMverizon.net> wrote in message
news:173lr112gq0hhiiqff2choi3otgcgc6dbc@4ax.com...

Common Sense About the NSA "Scandal"
January 3rd, 2006
http://www.americanthinker.com/articles.php?article_id=5123

Impeachable Offense: Bush Admits Illegal Wiretaps by JOHN W. DEAN

There can be no serious question that warrantless wiretapping, in
violation
of the law, is impeachable.

After all, Nixon was charged in Article II of his bill of impeachment with
illegal wiretapping for what he, too, claimed were national security
reasons.

These parallel violations underscore the continuing, disturbing parallels
between this Administration and the Nixon Administration - parallels I
also
discussed in a prior column.

Indeed, here, Bush may have outdone Nixon: Nixon's illegal surveillance
was
limited; Bush's, it is developing, may be extraordinarily broad in scope.

First reports indicated that NSA was only monitoring foreign calls,
originating either in the USA or abroad, and that no more than 500 calls
were being covered at any given time.

But later reports have suggested that NSA is "data mining" literally
millions of calls - and has been given access by the telecommunications
companies to "switching" stations through which foreign communications
traffic flows.

In sum, this is big-time, Big Brother electronic surveillance.

Given the national security implications of the story, the Times said they
had been sitting on it for a year. And now that it has broken, Bush has
ordered a criminal investigation into the source of the leak. He suggests
that those who might have felt confidence they would not be spied on, now
can have no such confidence, so they may find other methods of
communicating. Other than encryption and code, it is difficult to envision
how.

Such a criminal investigation is rather ironic - for the leak's effect was
to reveal Bush's own offense. Having been ferreted out as a criminal, Bush
now will try to ferret out the leakers who revealed him.

Nixon's Wiretapping - and the Congressional Action that Followed

Through the FBI, Nixon had wiretapped five members of his national
security
staff, two newsmen, and a staffer at the Department of Defense. These
people
were targeted because Nixon's plans for dealing with Vietnam -- we were at
war at the time -- were ending up on the front page of the New York Times.

Nixon had a plausible national security justification for the wiretaps: To
stop the leaks, which had meant that not only the public, but America's
enemies, were privy to its plans. But the use of the information from the
wiretaps went far beyond that justification: A few juicy tidbits were used
for political purposes. Accordingly, Congress believed the wiretapping,
combined with the misuse of the information it had gathered, to be an
impeachable offense.

Following Nixon's resignation, Senator Frank Church chaired a committee
that
investigated the uses and abuses of the intelligence derived from the
wiretaps.

From his report on electronic surveillance, emerged the proposal to create
the Foreign Intelligence Surveillance Act (FISA). The Act both set limits
on
electronic surveillance, and created a secret court within the Department
of
Justice - the FISA Court -- that could, within these limits, grant law
enforcement's requests to engage in electronic surveillance.

The legislative history of FISA makes it very clear that Congress sought
to
create laws to govern the uses of warrantless wiretaps. Thus, Bush's
authorization of wiretapping without any application to the FISA Court
violated the law.

Whether to Allow Such Wiretaps, Was Congress' Call to Make

No one questions the ends here. No one doubts another terror attack is
coming; it is only a question of when. No one questions the preeminent
importance of detecting and preventing such an attack.

What is at issue here, instead, is Bush's means of achieving his ends: his
decision not only to bypass Congress, but to violate the law it had
already
established in this area.

Congress is Republican-controlled. Polling shows that a large majority of
Americans are willing to give up their civil liberties to prevent another
terror attack. The USA Patriot Act passed with overwhelming support. So
why
didn't the President simply ask Congress for the authority he thought he
needed?

The answer seems to be, quite simply, that Vice President ***** Cheney has
never recovered from being President Ford's chief of staff when Congress
placed checks on the presidency.

And Cheney wanted to make the point that he thought it was within a
president's power to ignore Congress' laws relating to the exercise of
executive power. Bush has gone along with all such Cheney plans.

No president before Bush has taken as aggressive a posture -- the position
that his powers as commander-in-chief, under Article II of the
Constitution,
license any action he may take in the name of national security - although
Richard Nixon, my former boss, took a similar position.

Presidential Powers Regarding National Security: A Nixonian View

Nixon famously claimed, after resigning from office, that when the
president
undertook an action in the name of national security, even if he broke the
law, it was not illegal.

Nixon's thinking (and he was learned in the law) relied on the precedent
established by Abraham Lincoln during the Civil War.

Nixon, quoting Lincoln, said in an interview, "Actions which otherwise
would
be unconstitutional, could become lawful if undertaken for the purpose of
preserving the Constitution and the Nation."

David Frost, the interviewer, immediately countered by pointing out that
the
anti-war demonstrators upon whom Nixon focused illegal surveillance, were
hardly the equivalent of the rebel South.

Nixon responded, "This nation was torn apart in an ideological way by the
war in Vietnam, as much as the Civil War tore apart the nation when
Lincoln
was president." It was a weak rejoinder, but the best he had.

Nixon took the same stance when he responded to interrogatories proffered
by
the Senate Select Committee on Government Operations To Study Intelligence
Operations (best know as the "Church Committee," after its chairman
Senator
Frank Church).

In particular, he told the committee, "In 1969, during my Administration,
warrantless wiretapping, even by the government, was unlawful, but if
undertaken because of a presidential determination that it was in the
interest of national security was lawful. Support for the legality of such
action is found, for example, in the concurring opinion of Justice White
in
Katz v. United States."

(Katz is the opinion that established that a wiretap constitutes a "search
and seizure" under the Fourth Amendment, just as surely as a search of
one's
living room does - and thus that the Fourth Amendment's warrant
requirements
apply to wiretapping.)

Nixon rather presciently anticipated - and provided a rationalization
for -
Bush: He wrote, "there have been -- and will be in the future --
circumstances in which presidents may lawfully authorize actions in the
interest of security of this country, which if undertaken by other
persons,
even by the president under different circumstances, would be illegal."

Even if we accept Nixon's logic for purposes of argument, were the
circumstances that faced Bush the kind of "circumstances" that justify
warrantless wiretapping? I believe the answer is no.

Is Bush's Unauthorized Surveillance Action Justified? Not Persuasively.

Had Bush issued his Executive Order on September 12, 2001, as a temporary
measure - pending his seeking Congress approval - those circumstances
might
have supported his call.

Or, had a particularly serious threat of attack compelled Bush to
authorize
warrantless wiretapping in a particular investigation, before he had time
to
go to Congress, that too might have been justifiable.

But several years have passed since the broad 2002 Executive Order, and in
all that time, Bush has refused to seek legal authority for his action.
Yet
he can hardly miss the fact that Congress has clearly set rules for
presidents in the very situation in which he insists on defying the law.

Bush has given one legal explanation for his actions which borders on the
laughable: He claims that implicit in Congress' authorization of his use
of
force against the Taliban in Afghanistan, following the 9/11 attack, was
an
exemption from FISA.

No sane member of Congress believes that the Authorization of Military
Force
provided such an authorization. No first year law student would mistakenly
make such a claim. It is not merely a stretch; it is ludicrous.

But the core of Bush's defense is to rely on the very argument made by
Nixon: that the president is merely exercising his commander-in-chief
power
under Article II of the Constitution. This, too, is a dubious argument.
Its
author, John Yoo, is a bright, but inexperienced and highly partisan young
professor at Boalt Law School, who has been in and out of government
service.

To see the holes and fallacies in Yoo's work - embodied in a recently
published book -- one need only consult the analysis of Georgetown
University School of Law professor David Cole in the New York Review of
Books. Cole has been plowing this field of the law for many years, and
digs
much deeper than Yoo.

Since I find Professor Yoo's legal thinking bordering on fantasy, I was
delighted that Professor Cole closed his real-world analysis on a very
realistic note: "Michael Ignatieff has written that 'it is the very nature
of a democracy that it not only does, but should, fight with one hand tied
behind its back. It is also in the nature of democracy that it prevails
against its enemies precisely because it does.' Yoo persuaded the Bush
administration to untie its hand and abandon the constraints of the rule
of
law. Perhaps that is why we are not prevailing."

To which I can only add, and recommend, the troubling report by Daniel
Benjamin and Steven Simon, who are experts in terrorism and former members
of President Clinton's National Security Council. They write in their new
book "The Next Attack: The Failure of the War on Terror and a Strategy for
Getting It Right," that the Bush Administration has utterly failed to
close
the venerable loopholes available to terrorist to wreak havoc.

The war in Iraq is not addressing terrorism; rather, it is creating
terrorists, and diverting money from the protection of American interests.

Bush's unauthorized surveillance, in particular, seems very likely to be
ineffective. According to experts with whom I have spoken, Bush's approach
is like hunting for the proverbial needle in the haystack.

As sophisticated as NSA's data mining equipment may be, it cannot, for
example, crack codes it does not recognize.

So the terrorist communicating in code may escape detection, even if data
mining does reach him.

In short, Bush is hoping to get lucky. Such a gamble seems a slim pretext
for acting in such blatant violation of Congress' law.

In acting here without Congressional approval, Bush has underlined that
his
Presidency is unchecked - in his and his attorneys' view, utterly beyond
the
law.

Now that he has turned the truly awesome powers of the NSA on Americans,
what asserted powers will Bush use next?

And when - if ever - will we - and Congress -- discover that he is using
them?

* John W. Dean, a FindLaw columnist, is a former counsel to the president.

ORIGINALLY PUBLISHED
http://writ.news.findlaw.com/dean/20051230.html

George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and
Impeachably;
Both Claimed That a President May Violate Congress' Laws to Protect
National
Security
By JOHN W. DEAN


Eggsucker Bush is hiding in Crawfish so drunk he can't even mimic
Reagoon's
brush clearing crap. He's holed up with Condi and the American Posse is
on
the way to git America's newest desperados, the Bushy Brothers Gang.

Git out the rope!