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Aug 18, 2006

Above: Federal Judge Anna Taylor

Circle of Friends

Cracks are showing up in the Administration’s might dike, holding back the truth. Since the 9/11 events, President Bush has taken great liberties in usurping rights and authorities both held solely for the exercise of the U.S. Congress or strictly defined as PROTECTED under the current U.S. Constitution. Some investigators are stating that the current ‘data mining’ operations being run by the NSA are electronically sifting through virtually every land line, cell phone calls and emails made within the continental United States. And they have been doing this under illegal orders issued from the White House. The courts may soon examine this data mining, though the White House is seeking to conceal it under the cloak of national security.  

The latest high court decision declares that the president may not usurp this authority regardless of war power acts and other statutes. The court further pointed out that the statutes passed by the congress can not run contrary to the letter and spirit of the Constitution, without also being illegal. President Bush himself has just issued a directive to the Dept of Justice to appeal this decision. Across America the have been cries for impeachment from among the Bush detractors. And ever since the administration nearly gave control of some of America’s largest sea ports to a Syrian government owned corporation there have even been yells of traitor thrown towards Bush Jr. The latest decision from a relatively conservative court points towards how far over the line and to what the degree of infringement that Bush has stepped.


 

I heartedly recommend that we all keep our eyes and ears pealed for news on the appeal and ramifications of this. If the current Bush critics are even remotely close to being accurate on the level of surveillance that Bush has pushed his administration to practice then all of our rights and those of our and future generations are indeed threatened. For some of the more astute among our circle this may be old news. Never the less this is quite meaningful. I’ve attached some recent e-news articles about these events.

The latest decision against the Bush machine came on Tuesday (17 AUG 2006) when the US District court passed down another ruling that stated that the NSA mass surveillance operations and the order authorizing it were unconstitutional and therefore illegal.

I know that there are dark days and light days before us and that eventually the light will dissolve all the darkness and fear – sometimes it is nice to just dance in the strands of light that appear so clearly. The current administration and its policies thrive on fear and fear mongering. I consider that any prays, contemplation, and meditations that are done which include the propagation of light and love on and around Mother Earth – along with an end to any and all fears is a way to strengthen the divine and nourish the Great Spirit that dwells in all of us.

In Unity and Peace,

Carl

------------------------------------------------------------------------------------------------------------------------


Supreme Court Decision on Gitmo Undermines Bush’s Legal Case For Warrantless Wiretapping

The impact of today’s Supreme Court decision on military commissions goes well beyond Guantanamo. The Supreme Court has ruled that the Authorization for the Use of Military Force – issued by Congress in the days after 9/11 – is not a blank check for the administration. From the syllabus:

Neither the AUMF [Authorization for the Use of Military Force] nor the DTA [Detainee Treatment Act] can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.
Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, .
The point here is that the AUMF does not authorize activity that was not specifically contemplated in the text or legislative history. This is incredibly significant. The administration is relying on the AUMF to justify its warrantless wiretapping program. Here’s Alberto Gonzales on 12/19/05:

Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
The Bush administration doesn’t argue that warrantless wiretapping was something specifically contemplated in the text or by Congress. Rather, the administration argues that it is implied as part of a broad authorization to "use all necessary and appropriate force."
The Supreme Court has rejected that expansive interpretation. It’s a huge blow to the administration’s legal rationale for warrantless wiretapping.

------------------------------------------------------N P R --------------------------------------------------------


From NPR Legal Affairs (
http://www.npr.org/news/specials/nsawiretap/legality.html )

NSA Wiretapping: The Legal Debate

by Maria Godoy

Lawmakers, legal scholars and civil libertarians have raised fundamental questions about the legality of the National Security Agency's warrantless wiretapping within the United States.

President Bush authorized the taps on domestic phone calls and e-mails shortly after the attacks of Sept. 11, 2001. But the program remained secret until last December. Since then, the Bush administration has offered legal justifications for the surveillance that rest on two principal assertions. First, administration officials argue that the Constitution gives the president inherent powers to authorize warrantless wiretaps to protect national security. Second, they assert that Congress gave the president that power when, three days after the Sept. 11 attacks, it authorized him to use "all necessary and appropriate military force" against al Qaeda.

But in January, the Congressional Research Service, a nonpartisan arm of Congress, released
an analysis that found many of the administration's legal arguments conflicted with existing U.S. laws. The table below looks at the Bush administration's legal justifications for the program and the CRS response:

Legal Issues Involved

Bush Administration:

Congressional Research Service:

Article II of the Constitution

Designates president as commander-in-chief and gives him authority over foreign affairs.

Says Article II gives the president "all necessary authority" to protect the nation from further attacks. Argues that the president's power to conduct secret surveillance for the conduct of foreign affairs has long been recognized.

Says broad claim of presidential power contradicts the will of Congress when it passed the Foreign Intelligence Surveillance Act of 1978. That law intended for the government to seek warrants from a special FISA court before conducting such surveillance.

Authorization to Use Military Force

Resolution passed by Congress on Sept. 14, 2001, allows the president to "use all necessary and appropriate force" against those responsible for the Sept. 11 attacks. Preamble asserts the president's constitutional authority "to deter and prevent" terrorist acts against the United States.

Asserts that communications intelligence is an essential part of waging war that "must be included in any natural reading" of the authorization. Engaging in warrantless surveillance is a common and critical practice for wartime presidents, the Justice Department says, citing George Washington's interception of British mail as an example.

Acknowledges that surveillance is an important facet of warfare. But the CRS analysis says that "it is not clear that the collection of intelligence constitutes a use of force" authorized under the resolution passed by Congress.

'Hamdi v. Rumsfeld'

The 2004 Supreme Court ruling found that the authorization to use force passed by Congress allowed the detention of an American citizen captured on a foreign battlefield -- in spite of a federal law prohibiting such detentions unless authorized by Congress. The high court's ruling recognized the right to detain combatants "based on longstanding law-of-war principles."
Interprets the Hamdi ruling to mean that Congress' force authorization implicitly gave the president the power to conduct any activity considered an essential aspect of waging war -- including warrantless electronic surveillance -- at home and abroad.

Argues that the Hamdi ruling merely confirmed the authority to capture enemy combatants on a foreign battlefield. Suggests it's a huge stretch to say that the force authorization also covers domestic surveillance as an essential aspect of waging war.


Foreign Intelligence Surveillance Act of 1978

Law known as "FISA" created a legal process for authorizing foreign intelligence wiretaps. Allows a 15-day grace period for warrantless wiretapping during times of war and provides for retroactive warrants. Provides an exception to warrant requirements "where authorized by statute."
Argues FISA cannot take away the president's inherent constitutional power to wiretap in the name of national security. Contends that the 2001 congressional authorization to use force fulfills FISA's mandate that a warrant is required "except where authorized by statute."

Says FISA reflects Congress' view that it has the authority to regulate the president's use of any inherent constitutional authority to conduct warrantless surveillance. Suggests Congress did not intend for FISA's warrant exceptions to be expansive.

--------------------------------------------------------------------------------------------------------------

From
http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy
Posted 17 August 2006

NSA warrantless surveillance controversy

From Wikipedia, the free encyclopedia

The NSA warrantless surveillance controversy involves a no longer secret program which has conducted and continues to conduct eavesdropping and data mining on phone calls placed between a party in the United States and a party in a foreign country, outside of the provisions of the Foreign Intelligence Surveillance Act (FISA). The Bush administration refers to as its "Terrorist Surveillance Program",[1]. A federal court ruled on August 17, 2006 (in the case of ACLU v. NSA), that the NSA warrantless surveillance program violated the FISA statute enacted by Congress and unconstitutionally violated both the First and Fourth Amendments and exceeded the President's authority, and ordered that it be stopped. [2][3] However, the parties to suit agreed to a stay to the order until a hearing on the matter on September 7.[4]


The Bush administration asserts the need to monitor calls between people in the United States and people overseas suspected of having links to terrorists. However, a strict intepretation of the past precedent and literal reading of the Electronic Communication Privacy Act and FISA would require the administration to get court review for such monitoring (see
FISA law).
When the New York Times revealed the existence of the NSA program, the issue burst into controversy. The two basic sides are:

  • By not getting a warrant, the Bush administration is bypassing judicial review completely (checks and balances) because ordinarily even local police are allowed to wiretap if there is a valid warrant.
  • The text of the Constitution's Fourth Amendment does not specify say warrant, so National security in this case overrides the need for a warrant for international terrorism and this program is narrowly tailored to avoid violating the Fourth Amendment.
    The administration publicly confirmed a December [2005] report in The New York Times that revealed the National Security Agency is wiretapping Americans' overseas phone calls to or from phone numbers or people the government suspects might be connected to terrorism. [5]

Under the program, the NSA conducts surveillance on phone calls placed between a party in the United States and a party in a foreign country, without Foreign Intelligence Surveillance Act (FISA) court authorization, which critics assert is outlawed by the text of FISA.[6] [7]

In addition to the legality of the program, the controversy extends to questions of the duties of Congress, the press's role in exposing a classified program, the legality of telecommunications companies cooperating with the program, the apparent contradiction to President George W. Bush's earlier statement that the government did not wiretap without "getting a court order before we do so" [3] and the potential of the program for abuse.
The presidential authorization that created the program is classified and only select members of the Congressional Intelligence committees and leadership were (partially) briefed. It is unclear whether the program began before[4] or after the September 11, 2001 attacks. The existence of the program was not known to the American public until December 2005, when the New York Times, after learning about the program more than a year earlier, first reported on it.[8]

After an exchange of letters in June 2006 between Senate Judiciary Committee Chairman Arlen Specter (R-PA) and Vice President Dick Cheney, the committee is considering Specter's bill putting the NSA program under the FISA court and granting retroactive amnesty for warrantless surveillance conducted under presidential authority.[5] It is also considering legislation sponsored by Senator Mike DeWine (R-OH), a member of the judiciary and intelligence panels, that would provide a legal foundation for the surveillance program. A third piece of legislation affecting the NSA program, sponsored by Senator Charles Schumer (D-NY), has also been proposed. [9]


Warrantless wiretapping by NSA ruled unconstitutional

On August 17, 2006 U.S. District Court Judge Anna Diggs Taylor ruled in ACLU v. NSA that the warrantless wiretapping program is unconstitutional and ordered that it be stopped immediately, on the grounds that such activities are violations of the rights to free speech and privacy. [82] In her ruling,[83] she wrote:
"The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."

--------------------------------------------------------------------------------------------------------------------------------------

New York Times 18AUG06


Federal Judge Orders End to Warrantless Wiretapping

By DAVID STOUT
Published: August 17, 2006

WASHINGTON, Aug. 17 — A federal judge in Detroit ruled today that the Bush administration’s eavesdropping program is illegal and unconstitutional, and she ordered that it cease at once.


Imported from external blog


Visibility: Everyone
Posted: Friday August 18, 2006, 10:12 pm
Tags: empire the against blows [add/edit tags]

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