CONSTITUTIONAL LIMITATIONS ON DOMESTIC SURVEILLANCE

[WritersBlock]

Apologies if this is a duplicate post or should have gone to a different forum, but I thought it was very relevant for GD.


This is from Steven Aftergood's "Secrecy News" - a daily newsletter from the Federation of American Scientists (blog here: http://www.fas.org/blog/secrecy/ )

CONSTITUTIONAL LIMITATIONS ON DOMESTIC SURVEILLANCE

The constitutionality of the so-called Terrorist Surveillance Program was examined from various points of view at a hearing of the House Judiciary Committee today.

"The President had ample authority to authorize the Terrorist Surveillance Program under acts of Congress and the Constitution," said Steven Bradbury of the Justice Department.

It's not so simple, said Louis Fisher of the Law Library of Congress in an extended analysis. "Federal courts have rejected the theory that the President has 'inherent' constitutional authority to engage in warrantless domestic surveillance."

The President's program is clearly illegal, argued conservative critic Bruce Fein. "If Congress leaves the Bush administration’s illegal spying programs unrebuked, a precedent will have been established that will lie around like a loaded weapon ready for permanent use throughout the endless conflict with international terrorism," he said.

See the prepared testimony from the June 7 hearing on "Constitutional Limitations on Domestic Surveillance" here:

http://www.fas.org/irp/congress/2007_hr/index.html

[Kagemusha]

1. Silly subject (as drafted).

Unless the Constitution bars Congress from passing laws to restrict what otherwise might be presidential powers related to war, the laws passed by Congress - namely FISA - are legal, and legally binding and enforceable, and the flouting of those laws is therefore illegal. So does the Constitution ban Congress from limiting the President's authority in matters of "war" and "national security"? Most scholars not John Woo will say, hell no!

[Kiouni]

3. What about his signing statements

that supposedly exempt him from the legislation?

[Kagemusha]

5. It's still 'the constitution says I don't have to, so nya nya nya' silliness

That's just not the POINT. The point is, if the constitution does not bar Congress from saying he has to follow the law and the law is what Congress says it is - signed by a previous President's signature - then it doesn't matter that the Constitution doesn't specifically bar it; a law passed by Congress using Congress' full constitutional powers, does specifically bar it.

The constitution doesn't specifically bar just about all of the crimes in the federal criminal statutes. And what of it?

Signing statements are a statement of the opinion of the President on a matter of law. They are in no way binding. If a President wants to use a signing statement as the basis for defying the law, he is citing himself as the final authority over the law i.e. acting as if a law unto himself, which is inherently unconstitutional. Some idiot scholars think this is oh so kewl. Most find it blatantly outlaw.

Edit: I'll make this even simpler for anyone reading this later. There is an argument that in the absence of a law from Congress specifically limiting the President's domestic espionage, the President can do domestic espionage (for national security purposes) pretty much without limit. Problem: there IS a law specifically limiting the President's domestic espionage. Here, the defense falls back on a blatantly illegal position: the Constitution doesn't specifically bar us, so nya nya nya. It's silly, it's wrong, and it broadcasts massive ignorance about how the Constitution hands out power to, you know, make laws and stuff, to Congress.

[Edweird]

2. I know it's illegal.You know it's illegal. Congress has to know as well.

So why isn't anybody doing anything about it? The only guess I have is that there were "back room" deals made where our (so called) reps got "theirs" and we the people got sold out.

[Supersedeas]

4. It requires leadership - and someone with courage enough to confront the Media with the truth

[L. Coyote]

6. Leahy, Specter Press For Answers On Administration’s Domestic Spying Program

Fortunately, the Dem Congress continues its oversight, rather than saying forget (it in the face of all the Dem bashing).

============================
Leahy, Specter Press For Answers On Administration’s Domestic Spying Program
http://leahy.senate.gov/press/200705/052207a.html

Leading Judiciary Committee Senators Continue To Seek Information
On Legal Justification For Warrantless Wiretapping Program

WASHINGTON (Tuesday, May 22) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.) sent a letter to Attorney General Alberto Gonzales seeking answers to longstanding questions about the Bush Administration’s warrantless wiretapping program.

Leahy and Specter renewed earlier requests made by the Committee relating to the legal justifications for the warrantless wiretapping program. The request follows testimony last week by former Deputy Attorney General James Comey, who revealed that the Justice Department had concerns about the legal basis for the program and refused to certify it for a period of time in 2004.

“This Committee has made no fewer than eight formal requests over the past 18 months – to the White House, the Attorney General, or other Department of Justice officials – seeking documents and information related to this surveillance program. These requests have sought the Executive Branch legal analysis of this program and documents reflecting its authorization by the President,” the senators wrote. “You have rebuffed all requests for documents and your answers to our questions have been wholly inadequate and, at times, misleading.”

Leahy and Specter noted that the information is crucial for the Committee to have before consideration of any of the Administration’s proposed changes to the Foreign Intelligence Surveillance Act (FISA). They set a deadline of June 5 for the Justice Department to respond to the inquiry.

A PDF is also available. - http://leahy.senate.gov/press/200705/5-25-07%20PJL%20and%20Specter%20Ltr%20to%20Luskin.pdf

May 21, 2007

The Honorable Alberto Gonzales
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Dear Attorney General Gonzalez:

Last week we heard dramatic and deeply troubling testimony from former Deputy Attorney General Comey. He testified that in March 2004, when he was Acting Attorney General, he informed the White House that the Department of Justice had concluded an ongoing classified surveillance program had “no legal basis” and would not certify it. He then described how you, then Counsel to the President, and former White House Chief of Staff Andrew Card arrived at the hospital bedside of an extremely ill Attorney General Ashcroft and attempted to persuade him to certify the program. When you failed, because Mr. Ashcroft refused, Mr. Comey testified that the program was nonetheless certified over the objections of the Department of Justice. That apparently prompted a number of high-ranking Justice officials to consider resigning en masse.

This incident obviously raises very serious questions about your personal behavior and commitment to the rule of law. Mr. Comey’s testimony also demonstrates vividly how essential it is that this Committee understands the legal underpinnings of the surveillance program that was the subject of that incident, and how the legal justification evolved over time. The stonewalling by you and the Administration must end. The Committee on the Judiciary is charged with overseeing and legislating on constitutional protections, civil and criminal justice, civil liberties, and the Judiciary, all subjects that this matter impacts. We intend to do our job.

This Committee has made no fewer than eight formal requests over the past 18 months – to the White House, the Attorney General, or other Department of Justice officials – seeking documents and information related to this surveillance program. These requests have sought the Executive Branch legal analysis of this program and documents reflecting its authorization by the President. You have rebuffed all requests for documents and your answers to our questions have been wholly inadequate and, at times, misleading.

We note also that the Administration has offered a legislative proposal that it contends seeks to “modernize” the Foreign Intelligence Surveillance Act (FISA). As you know, the Judiciary Committee has historically overseen changes to FISA and it is this Committee’s responsibility to review the Administration’s proposal with great care. The draft legislation would make dramatic and far-reaching changes to a critical national security authority. Before we can even begin to consider any such legislative proposal, we must be given appropriate access to the information necessary to carry out our oversight and legislative duties.

This Administration has asserted that it established its program of warrantless wiretapping by the NSA because it deemed FISA’s requirements to be incompatible with the needs of the intelligence community in fighting terrorism. You testified in January that the warrantless wiretapping program had been terminated and that henceforth surveillance would be conducted pursuant to authorization from the FISA Court. To consider any changes to FISA, it is critical that this Committee understand how the Department and the FISA Court have interpreted FISA and the perceived flaws that led the Administration to operate a warrantless surveillance program outside of FISA’s provisions for over five years.

Your consistent stonewalling and misdirection have prevented this Committee from carrying out its constitutional oversight and legislative duties for far too long. We understand that much of the information we seek may currently be classified, but that can be no excuse for failing to provide relevant information to all members of this Committee and select, cleared staff. We will, of course, handle it with the greatest care and consistent with security requirements.

Therefore, we reiterate our requests for the following documents and ask that you provide them to this Committee no later than June 5, 2007:

1) Please provide all documents that reflect the President’s authorization and reauthorization of the warrantless electronic surveillance program that you have called the Terrorist Surveillance Program, including any predecessor programs, from 2001 to the present;

2) Please provide all memoranda or other documents containing analysis or opinions from the Department of Justice, the National Security Agency, the Department of Defense, the White House, or any other entity within the Executive Branch on legality of or legal basis for the warrantless electronic surveillance program, including documents that describe why the desired surveillance would not or could not take place consistent with the requirements and procedures of FISA from 2001 to the present;

3) Please provide all documents reflecting communications with the Foreign Intelligence Surveillance Court (FISC) about the warrantless electronic surveillance program or the types of surveillance that previously were conducted as part of that program, that contain legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment, the Authorization for the Use of Military Force, or the President’s authority under Article II of the Constitution, including the January 2007 FISC orders to which you refer in your January 17, 2007 letter to us and all other opinions or orders of the FISA court with respect to this surveillance;

4) If you do not consider the surveillance program that was the subject of discussion during the hospital visit and other events that former Deputy Attorney General James Comey described in his May 15, 2007 testimony before the Senate Judiciary Committee to be covered by the requests made above, please provide all documents described in those requests relevant to that program, as well.

We emphasize that we are seeking the legal justifications and analysis underlying these matters and not the specific operational details or information obtained by the surveillance.

Sincerely,

==============================
Lots of links here:

DIA SPYING: NGIA collecting data, 133 U.S. cities, ID everyone, nationality, political affiliations
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x983282

CIFA collected info on peace activists and anti-Bush protesters.
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=899312&mesg_id=982962

Campaign 2004: Were Bush / Cheney / NSA illegal wiretaps spying on Dems?
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x925247