Today's Must Read
It all depends on what your definition of "exclusive" is.
At the heart of the debate over warrantless wiretapping is whether FISA, by its own terms, is the exclusive means for the government to undertake electronic surveillance in counterespionage and counterterrorism cases.
The plain language of the FISA statute seems clear, stating that FISA is the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."
But nothing is ever that simple with the Bush Administration.
This week Sens. Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA) released a declassified sentence from one of John Yoo's notorious memos, written while he was serving in the Justice Department's Office of Legal Counsel. In it, Yoo managed to rationalize away the exclusivity provision of FISA in order to justify a warrantless wiretapping program outside of the FISA framework, without judicial oversight or regular reports to Congress:
"Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."
Poof! Just like that, exclusivity disappeared and the Bush Administration was free to pursue warrantless wiretaping with the official blessing of the OLC. (Former OLC attorney Jack Goldsmith has described his office's memos as "advance pardons").
The Bush Administration says it no longer relies on the Yoo memo as the legal underpinning for warrantless wiretapping, pointing instead to perhaps an even weaker rationale, the post-9/11 AUMF:
The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.
When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.
Exclusivity remains a key sticking point in passage of a new FISA law. Democrats are demanding language that erases whatever doubt there might be (although in fact there is none). The White House is balking.
Comments (21)
There is no doubt.
The issue is that Bush/Cheney through Yoo have decided that whenever Little Georgie puts on his "Commander In Chief" hat he doesn't have to obey ANY law. In the interest of "national security" there is nothing that can impede Little Georgie from doing anything he decides is necessary.
Get it?
He's not above the law. He's beyond the law.
But that's just their say-so. No one else believes such inane misinterpretation of the Constitution and the law. Clearly, Little Georgie has been authorizing quite illegal operations that constitute gross abuse of governmental powers. i.e. he's committed High Crimes & Misdemeanors. Can we Impeach him now?
ITMFA (impeach the motherfucker already)
America looks just a little more like Putin's Russia everyday. Or, am I being too nice? .... a USSR or a Stalinistic regime? Rule are made to be broken, a controlled media, spying, torture, more and more jails, purging of authorneys, politized trials with trumped up charges, the haves and the have nots, and constricted military personel trapped in a dieing profession.
Where is America headed? And why with all the ourtage is there nothing being done about it?
Americans must love how it is being treated.
DOJ Reliance Continues
The issue is: What Other programs have relied on this (incorrect) assertion the statutes and Constitution do not apply. It is meaningless for DoJ/AG to argue it "no longer" relies on the Yoo memo. Sure it does. AG said explicitly that he would not enforce any laws DOJ OLC said did not apply: Geneva, FISA. What other standards have been cast to the winds with other DOJ OLC memos?
Yoo's Convoluted Logic
FISA was written, in part, to authorize lawful violations of the Constitution. Once the President claims FISA does not apply -- in either granting an exception to the warrant requirement, or in having "no role as a standard" -- then the President must comply with the Constitution.
Yoo's Construction would have us believe FISA does not apply, but he fails to explain why the President can ignore Constitutional requirements in the 4th Amendment. Youngstown shows the President's power is constrained by the Constitution, and law. Even if Yoo's assertion is correct -- that the FISA does not apply because Congress did not expressly say it applied to a specific situation -- Yoo has not addressed the Constitutional requirements.
Evenif FISA does not apply, Yoo fails to address the Constitution Violations or Constrain Other Programs
Yoo's argument has not adequately addressed the implications of his argument: Once FISA is ignored, or does not apply, or Congress did not expressly say it applied to a narrow situation -- the President is only left with the Constitution which prohibits all warrantless surveillance. Yoo's asked us to believe the law does not apply; but fails to explain why the President, as a creature of the Constitution, has any authority from the document Yoo also says does not apply.
Exception to Privilege
It appears Yoo's written this after the illegal activity started: The President, as with Geneva violations, was stuck with a legal issue, and hoped to "rely on" DOJ OLC memos to "legalize" what had already started. These memos do not appear to be deliberative/pre-decisional, but post-decisional, also not protected given the crime-fraud exception to attorney client privilege.
It's a shame that Dianne Feinstein voted in committee to pass the Senate bill that grants retroactive immunity to the telecoms who assisted the administration in spying on Americans without a FISA warrant (thus flouting the clear and plain "exclusive means" clause of the 1979 FISA law quoted above).
Because every other means of legal discovery and review of this illegal program has been closed off by the Bush Administration on standing grounds or through claims of executive privilege, the telecom lawsuits are the last, best way for the American people to finally learn what laws were broken in their name and what violations of their personal privacy occurred without their knowledge or consent. They're also the last best way to hold those lawbreakers (in both the corporate and private sector) accountable for their lawbreaking, and to disincentivize such flagrant illegalities in the future.
Unfortunately, Dianne Feinstein's pro-immunity vote in committee made the pursuit of justice and accountability infinitely harder. Again, that's a shame. And it's an even bigger shame that she cast that pro-immunity vote, to the great benefit of her largest contributors such as AT&T, in direct opposition to the overwhelming balance of her own constituent contact with regard to the bill, which, per her own staffers' admission, was almost exclusively anti-immunity.
But then, why the hell should she care what we constituents think? We're only her stupid constituents.
Patrick Meighan
Culver City, CA
President Delegated No Power To Violate the Constitution
DOJ OLC views surveillance as lawful unless the Congress or Constitution expressly prohibits that activity. However, the 10th Amendment does the opposite: Unless a power -- for the President to violate the Constitutin -- has been delegated, that power is reserved to the States and People.
DoJ OLC Separates 4th Amendment
Part 1 of 4th Amendment
The problem with the 4th Amendment, in light of DOJ OLC memos, is that they look at the 4th Amendment as two separate clauses. DoJ OLC views electronic surveillance as reasonable during wartime:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
Part 2 of 4th Amendment
DoJ OLC argues that warrants are not always required. When they are required, the standard is probable cause:
"and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
By splitting the 4th Amendment into two, DOJ OLC is arguing the President-DOJ OLC-AG alone, outside the court, can determine that Presidential power is not constrained by the Warrant requirement. They've invented a new exceptions to the Constitution: The President, his decisions, and any action taken in the name of a nebulous objective.
This is the definition of tyranny.
Well the thig that I always point back to when talking to friends about this white house and many of their supporters is that in essence they consider themsleves conservative. I have always felt that many of the people which define themselves as conservative cared about government abuse, goverment spending and the nature of balance between government responsibility tempered against personal/civc responsability. If that were the case then how under any interpretation of conservatism can you have this interpretation of a legal statute? At a bare minimum their interpretation is quite liberal or I should say creative, but definitely not a conservative approach nor a conservative conclusion? Don't you guys agree? If the status quo was A and you have people asking for B, then it needs to be seen as exactly that, not A but B. A change! Therefore the white house has changed its policies so that those policies reflect what they feel represents conservatism, not that they are conservatism, but that their goals are conservative and their methods are anything but. So essentially these guys have hijacked conservatism because they felt that was the only way to get America the way that they wanted! So we get back to feeling the way most of the people who have had a problem with their methods over the last couple of years which is namely that their methods have been bad for US perception abroad, they have been bad for your average American, who makes less than 75 thousand a year or a family that makes less than a 100 thousand a year, they have been bad for our education policies in many ways by creating a top down structure which puts the burden on teachers rather who have little power in terms of teaching guidelines and even less when it comes to classroom discipline, you have ever increasing health care cost, while thousands of americans continue to be added to the list of uninsured, etc! They have failed in getting the results which they beleived they could accomplish but have been successful at changing the language and spirit of those working in Washington. Now we have a goverment in which those at the top are both responseable for much of the policy but then places the ultimate critique not on those policies but on how well those underneath the top performed them. This allows the Kings/high-goverment officials the pleasure of never being accountable for their action or the policies they support. I know I am oversimplifying but this is a large picture of how I see things moving. It is going to take the best and the brightest to create a new spirit in Washington and a new spirit around this country which better reflects how the majority messures up to the first paragraph of the preamble.
And even when this program supported by legal garbage is hopefully dismantled by Obama what happens? If there is no consequence for Bush Co., then won't the same programs and be put back in place by the next tyrannical administration...
I imagine the administration plans to put programs in "sleeper" mode. I dislike conspiracy thinking, but it fits the trend/pattern of facts that are ever so slowly emerging every month. Our only hope is the whistle blowers with any sense of decency.
DoJ has not made the case that something other than FISA governs electronic surveillance; or that non-FISA procedures apply to this surveillance. DOJ cannot reasonably expect Congress to comply with this non-sense request:
He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.From
The 2001 statement must be considered without regard to whether the statutes, policies, or programs did or did not change after the DOJ OLC statement. Today's debate is related to the illegal activity before the FISA changes. DoJ cannot ask Congress to examine one set of violations under statutes which were changed later. We still don't know what's been going on before the changes.
The "current position" is to pretend there's been compliance with standards they've ignored, but not prosecute the violations. That's not a position or policy. It's a decision to not enforce the Constitution. How that illegal activity, unlawful use of information, and surveillance relates to war crimes against POWs is a relevant discussion.
"Choosing non-FISA procedures" does not mean also ignoring the Constitution. Once the AG departs FISA, the AG cannot reasonably justify warrantless activity directed at American civilians. The exceptions do not apply. The ruse is to pretend Americans -- on accusation alone -- "Might be" disguised terrorists. ( Here Is Yoo's article on Katz highlights to waffling possition on the warrant requirements. )
It is a misreading to suggest the concern with preventing an attack. The President and legal counsel were concerned with thhe opposite: If tehre was a second attack, could they go to the American people and say, "We did all we could">
Senator Specter, in reminding the AG the AUMF did not change FISA as the exclusive means to conduct warrantless surveillance, expressly rejected this assertion when Gonzalez testified Feb 2006 before the Senate Judiciary:
When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.
Wrong, Benchowski. The AUMF in no way said the FISA was anything; nor did the AUMF say the FISA was something other than the exclusive means to conduct warrantless surveillance.
Illegal Changes To Constitution
The Congress has no power to "complement" the Constitution; nor can Congress through an Act delegate any power to the President. It's a mis-reading of the Constitution to pretend that an Article I declaration of war (which never happened) grants the President any new powers. It is absurd for Benchowski to misconstrue the AUMF as any Congressional comment about how the President may ignore FISA, bypass the Constitution, or use "new" authorities which Congress has "not" expressly prevented or assigned.
Using the Yoo-Benchowski construction, they would have us believe that the AUMF was an act of Congress that delegated to the President new authorities; but they contradict themselves arguing the Congress was silent in constraining that authority. That defies reason: How can the Congress both speak and not speak at the same time? The DOJ OLC would have us believe in quantum-speech-specificity: At the same time, Congressional language "is clear" and "isn't clear".
Even if true and there was any grant of new authority under the AUMF (which never happened), the President may not assert any power that illegally violates the Constitution unless the People agree. That never happened, as evidenced by the continued refusal to grant immunity for FISA violations; and the State AG efforts to enforce existing state-level contract requirements on the telecoms. Congress has no power to mediate contract disputes between the States and businesses. That is judicial power.
"testing" is as full of pseduo-law BS as they come --
"Yoo's argument has not adequately addressed the implications of his argument: Once FISA is ignored, or does not apply, or Congress did not expressly say it applied to a narrow situation -- the President is only left with the Constitution which prohibits all warrantless surveillance. Yoo's asked us to believe the law does not apply; but fails to explain why the President, as a creature of the Constitution, has any authority from the document Yoo also says does not apply."
That was addressed in the various (bogus) assertions that Bushit, when acting as Commander-in-Chief, is exempt from ALL legal constraints INCLUDING THE CONSTITUTION, fool.
And that "covers" the illegal domestic wiretapping based upon the (equally bogus) assertion -- by the "Commander-in-Chief" -- that the "War on Terror" includes the US as a battlefield.
Problem in the latter case: Congress has not passed a Decaration of War against the US. Only the Bushit criminal enterprise has done that.
He is unconstitutionally claiming the powers of military dictator, without the uniform to give that fact away "too much".
As for your "legal" "theorizing": you haven't the least clue as to what law is and isn't, let alone how it works.
There are nagging doubts that anything will come of this or any of the other extra-Constitutional scams Bush has run on this country. Congress will yammer protests, the White House will quibble over lawyerly details... and the matter will die. Congress has become the Administration's lapdog, spayed of output and neutered of energy.
The troublesome fact is that future Presidents will see unlimited wiretap privilege as a political tool too valuable to surrender. If they feel no compunction to reveal who they're bugging, what's to keep them from bugging their political opponents? And if there's no official sanction to keep them from doing so, they will. That's been the "Rovian" aspect of the wiretap case from the beginning - national security be damned...
If Yoo is subpoenaed and found to be as lacking as Gonzales, will Bolt Hall continue keeping him on faculty? Is his tenure sealed in stone? I just find this utterly so disturbing. It is not as if he taught at Ken Starr U (Pepperdine) or Condy U (Stanford). That would be bad enough, but we are talking about Berkeley! If one of my kids went to school there, I would be raising hell!
The 4th amendment is very clear and unequivocal. What all of these interpretations indicate is that there is a need for many new laws in 2009 to make sure the conservatively-stacked courts have no more opportunities to nullify the existing law. The judges specifically responsible for nullifying these laws should be impeached and disbarred, because they have violated their oaths to support a right-wing extremist political agenda intent on dismantling the Constitution in favor of a police state. These fanatics are a cancer in the government and must be removed if our form of government is to survive another century.
By Robert Barnes
Washington Post Staff Writer
Friday, May 23, 2008; A15
What does "exclusive" mean?
The answer was at the heart of a highly sensitive memo by the Justice Department's Office of Legal Counsel in 2001, when Bush administration officials were keen to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks.
A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."
But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.
This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:
The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."
In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration.
But Democratic Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) said the memo provided the legal underpinnings for the Bush administration to ignore FISA's clear language.
"I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," Whitehouse said in a statement. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."
The context of Yoo's statement is unclear, because the rest of the memo remains classified. Yoo, now a law professor at the University of California at Berkeley, also wrote a controversial memo from August 2002 that narrowly defined torture; the department later rescinded it.
The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.
He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.
When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.
Whether such surveillance can be authorized outside of the legal requirements of FISA is one of the most contentious points in negotiations between Congress and the administration as it attempts to revise the statute -- a matter on which lawmakers will have the last word.
Feinstein said in a statement: "The declassified OLC opinion claimed that FISA didn't restrain the President's authorities. The OLC was wrong, and new FISA legislation must have strong exclusivity language to make clear that we cannot have such abuses again in the future."
Sentence in Memo Discounted FISA
By Robert Barnes
Washington Post Staff Writer
Friday, May 23, 2008; A15
What does "exclusive" mean?
The answer was at the heart of a highly sensitive memo by the Justice Department's Office of Legal Counsel in 2001, when Bush administration officials were keen to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks.
A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."
But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.
This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:
The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."
In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration.
But Democratic Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) said the memo provided the legal underpinnings for the Bush administration to ignore FISA's clear language.
"I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," Whitehouse said in a statement. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."
The context of Yoo's statement is unclear, because the rest of the memo remains classified. Yoo, now a law professor at the University of California at Berkeley, also wrote a controversial memo from August 2002 that narrowly defined torture; the department later rescinded it.
The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.
He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.
When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.
Whether such surveillance can be authorized outside of the legal requirements of FISA is one of the most contentious points in negotiations between Congress and the administration as it attempts to revise the statute -- a matter on which lawmakers will have the last word.
Feinstein said in a statement: "The declassified OLC opinion claimed that FISA didn't restrain the President's authorities. The OLC was wrong, and new FISA legislation must have strong exclusivity language to make clear that we cannot have such abuses again in the future."
Does this mean that unless the law explicitly says this law applies to (fill in your own name), it is okay to commit the crimes of your choice?
The sad fact is... these crimes will go unpunished simply because these are important people beyond the control of our rule of law.
All these folks... Republicans and Democrats alike are just "more equal" than the rest of us farm animals...
Too bad so few are willing to change this fact... the demise of a democracy is sad indeed...