Articles of Impeachment, XXIV: Spying on American Citizens, Without a Court-Ordered Warrant ....

[L. Coyote]

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Rep. Dennis Kucinich on the House Floor June 9th reading the articles of impeachment: Bush's illegal surveillance of US citizens.

Article XXIV
Spying on American Citizens, Without a Court-Ordered Warrant, in Violation of the Law and the Fourth Amendment

In his conduct while President of the United States, George W. Bush, in violation of his constitutional
oath to faithfully execute the office of President of the United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional
duty under Article II, Section 3 of the Constitution "to take care that the laws be faithfully executed",
has both personally and acting through his agents and subordinates, knowingly violated the fourth
Amendment to the Constitution and the Foreign Intelligence Service Act of 1978 (FISA) by authorizing
warrantless electronic surveillance of American citizens to wit:

(1) The President was aware of the FISA Law requiring a court order for any wiretap as evidenced by
the following:

(A)"Now, by the way, any time you hear the United States government talking about wiretap, it
requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about
chasing down terrorists, we're talking about getting a court order before we do so." White House Press
conference on April 20, 2004 (White House Transcript)

(B) "Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone,
or to track his calls, or to search his property. Officers must meet strict standards to use any of the tools
we're talking about." President Bush's speech in Baltimore Maryland on July 20th 2005 (White House
Transcript)

(2) The President repeatedly ordered the NSA to place wiretaps on American citizens without
requesting a warrant from FISA as evidenced by the following:

(A) "Months after the Sept. 11 attacks, President Bush secretly authorized the National Security
Agency to eavesdrop on Americans and others inside the United States to search for evidence of
terrorist activity without the court-approved warrants ordinarily required for domestic spying,
according to government officials." New York Times article by James Risen and Eric Lichtblau on
December 12, 2005. (NYTimes)

(B) The President admits to authorizing the program by stating "I have reauthorized this program more
than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces
a continuing threat from al Qaeda and related groups. The NSA's activities under this authorization are
thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general
counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this
authorization and the activities conducted under it." Radio Address from the White House on
December 17, 2005 (White House Transcript)

(C) In a December 19th 2005 press conference the President publicly admitted to using a combination
of surveillance techniques including some with permission from the FISA courts and some without
permission from FISA.
Reporter: It was, why did you skip the basic safeguards of asking courts for permission for the
intercepts?
THE PRESIDENT: ... We use FISA still -- you're referring to the FISA court in your question -- of
course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the
American people is the ability to move quickly to detect. Now, having suggested this idea, I then,
obviously, went to the question, is it legal to do so? I am -- I swore to uphold the laws. Do I have the
legal authority to do this? And the answer is, absolutely. As I mentioned in my remarks, the legal
authority is derived from the Constitution, as well as the authorization of force by the United States
Congress." (White House Transcript)

(D) Mike McConnel, the Director of National Intelligence, in a letter to to Senator Arlen Specter,
acknowledged that Bush's Executive Order in 2001 authorized a series of secret surveillance activities
and included undisclosed activities beyond the warrantless surveillance of e-mails and phone calls that
Bush confirmed in December 2005. "NSA Spying Part of Broader Effort" by Dan Eggen, Washington
Post, 8/1/07

(3) The President ordered the surveillance to be conducted in a way that would spy upon private
communications between American citizens located within the United States borders as evidenced by
the following:

(A) Mark Klein, a retired AT&T communications technician, submitted an affidavit in support of the
Electronic Fronteir Foundation's FF's lawsuit against AT&T. He testified that in 2003 he connected a
"splitter" that sent a copy of Internet traffic and phone calls to a secure room that was operated by the
NSA in the San Francisco office of AT&T. He heard from a co-worker that similar rooms were being
constructed in other cities, including Seattle, San Jose, Los Angeles and San Diego. From "Whistle-
Blower Outs NSA Spy Room", Wired News, 4/7/06 (Wired EFF Case)

(4) The President asserted an inherent authority to conduct electronic surveillance based on the
Constitution and the "Authorization to use Military Force in Iraq" (AUMF) that was not legally valid as
evidenced by the following:

(A) In a December 19th, 2005 Press Briefing General Alberto Gonzales admitted that the surveillance
authorized by the President was not only done without FISA warrants, but that the nature of the
surveillance was so far removed from what FISA can approve that FISA could not even be amended to
allow it. Gonzales stated "We have had discussions with Congress in the past -- certain members of
Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind
of threat, and we were advised that that would be difficult, if not impossible.".

(B) The fourth amendment to the United States Constitution states "The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, 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."

(C) "The Foreign Intelligence Surveillance Act of 1978 unambiguously limits warrantless domestic
electronic surveillance, even in a congressionally declared war, to the first 15 days of that war;
criminalizes any such electronic surveillance not authorized by statute; and expressly establishes FISA
and two chapters of the federal criminal code, governing wiretaps for intelligence purposes and for
criminal investigation, respectively, as the "exclusive means by which electronic surveillance . . . and
the interception of domestic wire, oral, and electronic communications may be conducted." 50 U.S.C.
§§ 1811, 1809, 18 U.S.C. § 2511(2)(f)." Letter from Harvard Law Professor Lawrence Tribe to John
Conyers on 1/6/06

(D) In a December 19th, 2005 Press Briefing Attorney General Alberto Gonzales stated "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."

(E) The "Authorization to use Military Force in Iraq" does not give any explicit authorization related to
electronic surveillance. (HJRes114)

(F) "From the foregoing analysis, it appears unlikely that a court would hold that Congress has
expressly or impliedly authorized the NSA electronic surveillance operations here under discussion,
and it would likewise appear that, to the extent that those surveillances fall within the definition of
"electronic surveillance" within the meaning of FISA or any activity regulated under Title III, Congress
intended to cover the entire field with these statutes." From the "Presidential Authority to Conduct
Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" by the Congressional
Research Service on January 5, 2006.

(G) "The inescapable conclusion is that the AUMF did not implicitly authorize what the FISA
expressly prohibited. It follows that the presidential program of surveillance at issue here is a violation
of the separation of powers — as grave an abuse of executive authority as I can recall ever having
studied." Letter from Harvard Law Professor Lawrence Tribe to John Conyers on 1/6/06

(H) On August 17, 2006 Judge Anna Diggs Taylor of the United States District Court in Detroit, in
ACLU v. NSA, ruled that the "NSA program to wiretap the international communications of some
Americans without a court warrant violated the Constitution. ... Judge Taylor ruled that the program
violated both the Fourth Amendment and a 1978 law that requires warrants from a secret court for
intelligence wiretaps involving people in the United States. She rejected the administration's repeated
assertions that a 2001 Congressional authorization and the president's constitutional authority allowed
the program." From a New York Times article "Judge Finds Wiretap Actions Violate the Law" 8/18/06
and the Memorandum Opinion

(I) In July 2007, the Sixth Circuit Court of Appeals dismissed the case, ruling the plaintiffs
had no standing to sue because, given the secretive nature of the surveillance, they could not state with
certainty that they have been wiretapped by the NSA. This ruling did not address the legality of the
surveillance so Judge Taylor's decision is the only ruling on that issue. (ACLU Legal Documents)

In all of these actions and decisions, President George W. Bush has acted in a manner contrary to his
trust as President, and subversive of constitutional government, to the prejudice of the cause of law and
justice and to the manifest injury of the people of the United States. Wherefore, President George W.
Bush, by such conduct, is guilty of an impeachable offense warranting removal from office.