INTERVIEWER: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

INTERVIEWEE: Well, when the president does it that means that it is not illegal.

INTERVIEWER: By definition.

INTERVIEWEE: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position . . . [1]

"So the first thing I want you to think about is, when you hear Patriot Act, is that we changed the law and the bureaucratic mind-set to allow for the sharing of information. It's vital. And others will describe what that means.

"Secondly, there are such things as roving wiretaps. 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. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution." [2]

"Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

That was Antonin Scalia, quoting Alexander Hamilton on the dangers of trading away liberty for safety, in his written dissent in the Hamdi case, in which five Supreme Court judges ruled in favor of the Justice Department. Justice was making the same arguments the White House is floating now: Bush has inherent authority to detain combatants in time of war, and Congress gave him additional authority with its use-of-force authorization.

Was the Hamdi case different? In this way, it was: It went to court -- so points out Tim Grieve in his "War Room" blog commentary entitled "Deconstructing the president's defense" on The Nation website. [3]

An easy one: Who said the following and where and when?

"We know that Vice President Dick Cheney has asked for exemptions for the CIA from the language contained in the McCain torture amendment banning cruel, inhumane, and degrading treatment. Thank God his pleas have been rejected by this Congress.

"Now comes the stomach-churning revelation through an executive order, that President Bush has circumvented both the Congress and the courts. He has usurped the Third Branch of government – the branch charged with protecting the civil liberties of our people – by directing the National Security Agency to intercept and eavesdrop on the phone conversations and e-mails of American citizens without a warrant, which is a clear violation of the Fourth Amendment. He has stiff-armed the People’s Branch of government. He has rationalized the use of domestic, civilian surveillance with a flimsy claim that he has such authority because we are at war. The executive order, which has been acknowledged by the President, is an end-run around the Foreign Intelligence Surveillance Act, which makes it unlawful for any official to monitor the communications of an individual on American soil without the approval of the Foreign Intelligence Surveillance Court.

"What is the President thinking? Congress has provided for the very situations which the President is blatantly exploiting. The Foreign Intelligence Surveillance Court, housed in the Department of Justice, reviews requests for warrants for domestic surveillance. The Court can review these requests expeditiously and in times of great emergency. In extreme cases, where time is of the essence and national security is at stake, surveillance can be conducted before the warrant is even applied for.

"This secret court was established so that sensitive surveillance could be conducted, and information could be gathered without compromising the security of the investigation. The purpose of the FISA Court is to balance the government’s role in fighting the war on terror with the Fourth Amendment rights afforded to each and every American.

"The American public is given vague and empty assurances by the President that amount to little more than "trust me." But, we are a nation of laws and not of men. Where is the source of that authority he claims? I defy the Administration to show me where in the Foreign Intelligence Surveillance Act, or the U.S. Constitution, they are allowed to steal into the lives of innocent America citizens and spy." [4]

Yep, that's Senator Robert C. Byrd of West Virginia, who has been serving in the U.S. Senate since 1958, who knew Eisenhower -- Kennedy -- Johnson -- Nixon -- Ford -- Carter -- Reagan -- G. H. W. Bush -- Clinton. He also has cast more votes than any other Senator in the history of the Republic, having cast more than 17,500 votes in his Senate career. He is famous for the eloquence and passion and wisdom of his floor speeches -- no less his December 19. 2005 speech, "No President Is Above the Law."

How much has been said or written that relates to Big brother, the scofflaw? Lord only knows. But it's been and being said and written all over the country -- and the world. We opinion about Big Brother, the scofflaw from all over the United States -- from Colorado -- Pennsylvania -- California -- New York -- the District of Columbia -- Vermont -- Wisconsin -- Georgia -- Pennsylvania again -- Florida -- West Virginia -- Texas -- Minnesota -- Washington state. And all of it reflects that from the right by Antonin Scalia and from the left by Robert C. Byrd.

[1] -- Landmark Cases of the Supreme Court

[2] - Entire Speech

[3] -- Grieve's "War Room" blog on The Nation website

[4] -- Senator Byrd's floor speech

 Domestic liberties require protection
The Senate rejects renewal of the Patriot Act and the president authorized NSA domestic surveillance without court approval.

Editorial
The Denver Post
December 17, 2005

AT A TIME when Congress is balking at government encroachment on individual liberties, it was startling to learn that the top-secret National Security Agency has been conducting domestic surveillance without court approval. The agency's charter is to monitor international communication circuits, but it apparently got the go-ahead in an executive order signed sub rosa by George Bush.

The revelation came on the day the U.S. Senate wisely rejected reauthorization of the USA Patriot Act, which gave law enforcement broad new powers in the wake of the Sept. 11, 2001, attacks. Key provisions of the law will expire Dec. 31 without action from Congress. We again urge the president and his loyalists to adopt revisions of the law passed unanimously by the Senate this summer. The so-called Safe Act contains safeguards meant to ensure protection of civil liberties.

Opposition to a mindless reauthorization of the entire Patriot Act comes from both sides of the ideological spectrum and from members of both political parties. And no wonder. Friday's revelation about NSA spying demonstrates that the administration has lost its sense of balance between essential anti-terrorism tools and encroachment on liberties. What's the cliché here? If we give up our liberties in the name of anti-terrorism, the terrorists have already won.

The NSA spying underscores the need for proper checks and balances. Kate Martin, director of the Center for National Security Studies at George Washington University,called the NSA spying -- first reported by The New York Times -- "as shocking a revelation as we have ever seen from the Bush administration." She said, "It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans."

Indeed, The Times said some NSA officials were so concerned about the legality of the program that they refused to participate. Administration officials would not confirm the report, but when asked about it, the president told PBS's Jim Lehrer that whatever steps he takes are to protect the American people, and that "decisions made are made understanding we have an obligation to protect the civil liberties of the American people."

Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, called the spying "inappropriate" and said his panel would conduct hearings. A congressional review is absolutely critical. If there are reasons to grant the NSA new powers, it should be debated and decided by Congress, not authorized in secret.

Editorial
Pittsburgh Post-Gazette
December 18, 2005

It appears that the phone and e-mail messages of thousands of Americans and foreigners resident in America have been or are being monitored and recorded by the NSA. Such action is not supposed to be taken without an application to and an order approved by the Foreign Intelligence Surveillance Court. Mr. Bush issued an executive order in 2002, months after the Sept. 11, 2001, attack, removing -- secretly -- that legal safeguard of Americans' privacy and civil rights.

The Pentagon's action as part of TALON will be put forward as an oversight, but the idea of the Department of Defense maintaining files on American war protesters, perhaps with easy cross-reference to the NSA's records based on the results of their monitoring of phone calls and e-mails of potentially those same protesters, makes possible a very serious violation of Americans' civil rights.

Without a serious leap of imagination, particularly with the list of those under surveillance not available to anyone outside the NSA and the Pentagon, it is also possible to project that political critics of the Bush administration could end up among those being tracked. The Nixon administration, a previous Republican administration beleaguered by war critics, maintained "enemies lists."

The White House needs to tell the Pentagon promptly to destroy the records of protesters as required, within three months. It also needs promptly to tell the NSA to return to following the rules, to get the approval of the Foreign Intelligence Surveillance Court before monitoring Americans' communications. The idea that all of this is being done to us in the name of national security doesn't wash; that is the language of a police state. Those are the unacceptable actions of a police state.

Bigger brother

Editorial
The Los Angeles Times
December 18, 2005

Editorial
The New York Times
December 18, 2005

ON OCT.. 17, 2002, the head of the National Security Agency, Lt. Gen. Michael Hayden, made an eloquent plea to a joint House-Senate inquiry on intelligence for a sober national discussion about whether the line between liberty and security should be shifted after the 9/11 attacks, and if so, precisely how far. He reminded the lawmakers that the rules against his agency's spying on Americans, carefully written decades earlier, were based on protecting fundamental constitutional rights.

If they were to be changed, General Hayden said, "We need to get it right. We have to find the right balance between protecting our security and protecting our liberty." General Hayden spoke of having a "national dialogue" and added: "What I really need you to do is talk to your constituents and find out where the American people want that line between security and liberty to be."

General Hayden was right. The mass murders of 9/11 revealed deadly gaps in United States intelligence that needed to be closed. Most of those involved failure of performance, not legal barriers. Nevertheless, Americans expected some reasonable and carefully measured trade-offs between security and civil liberties. They trusted their elected leaders to follow long-established democratic and legal principles and to make any changes in the light of day. But George Bush had other ideas. He secretly and recklessly expanded the government's powers in dangerous and unnecessary ways that eroded civil liberties and may also have violated the law.

In Friday's Times, James Risen and Eric Lichtblau reported that sometime in 2002, George Bush signed a secret executive order scrapping a painfully reached, 25-year-old national consensus: spying on Americans by their government should generally be prohibited, and when it is allowed, it should be regulated and supervised by the courts. The laws and executive orders governing electronic eavesdropping by the intelligence agency were specifically devised to uphold the Fourth Amendment's prohibition of unreasonable searches and seizures.

But Mr. Bush secretly decided that he was going to allow the agency to spy on American citizens without obtaining a warrant - just as he had earlier decided to scrap the Geneva Conventions, American law and Army regulations when it came to handling prisoners in the war on terror. Indeed, the same Justice Department lawyer, John Yoo, who helped write the twisted memo on legalizing torture, wrote briefs supporting the idea that the president could ignore the law once again when it came to the intelligence agency's eavesdropping on telephone calls and e-mail messages.

"The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties," he wrote.

Let's be clear about this: Illegal government spying on Americans is a violation of individual liberties, whether conditions are troubled or not. Nobody with a real regard for the rule of law and the Constitution would have difficulty seeing that. The law governing the National Security Agency was written after the Vietnam War because the government had made lists of people it considered national security threats and spied on them. All the same empty points about effective intelligence gathering were offered then, just as they are now, and the Congress, the courts and the American people rejected them.

This particular end run around civil liberties is also unnecessary. The intelligence agency already had the capacity to read your mail and your e-mail and listen to your telephone conversations. All it had to do was obtain a warrant from a special court created for this purpose. The burden of proof for obtaining a warrant was relaxed a bit after 9/11, but even before the attacks the court hardly ever rejected requests.

The special court can act in hours, but administration officials say that they sometimes need to start monitoring large batches of telephone numbers even faster than that, and that those numbers might include some of American citizens. That is supposed to justify Mr. Bush's order, and that is nonsense. The existing law already recognizes that American citizens' communications may be intercepted by chance. It says that those records may be retained and used if they amount to actual foreign intelligence or counterintelligence material. Otherwise, they must be thrown out.

George Bush defended the program yesterday, saying it was saving lives, hotly insisting that he was working within the Constitution and the law, and denouncing The Times for disclosing the program's existence. We don't know if he was right on the first count; this White House has cried wolf so many times on the urgency of national security threats that it has lost all credibility. But we have learned the hard way that Mr. Bush's team cannot be trusted to find the boundaries of the law, much less respect them.

Mr. Bush said he would not retract his secret directive or halt the illegal spying, so Congress should find a way to force him to do it. Perhaps the Congressional leaders who were told about the program could get the ball rolling.

Editorial
The Washington Post
December 18, 2005

IN THE WAKE of the Sept. 11, 2001, attacks, The New York Times reported last week, George Bush authorized the National Security Agency to conduct electronic surveillance of hundreds of U.S. citizens and residents suspected of contact with al Qaeda figures -- without warrants and outside the strictures of the law that governs national security searches and wiretaps. The rules here are not ambiguous. Generally speaking, the NSA has not been permitted to operate domestically. And the Foreign Intelligence Surveillance Act (FISA) requires that national security wiretaps be authorized by the secretive FISA court. "A person is guilty of an offense," the law reads, "if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute" -- which appears, at least on its face, to be precisely what the president has authorized.

Mr. Bush, in his weekly radio address yesterday, defended his action, chastised the media for revealing it, and suggested both that Congress had justified this step by authorizing force against al Qaeda and that such spying was consistent with the "constitutional authority vested in me as commander in chief." But there is a reason the CIA and the NSA are not supposed to operate domestically: The tools of foreign intelligence are not consistent with a democratic society. Americans interact with their own government through the enforcement of law. And in those limited instances in which Americans become intelligence targets, FISA exists to make sure that the agencies are not targeting people for improper reasons but have sufficient evidence that Americans are actually operating as foreign agents. Warrantless intelligence surveillance by an executive branch unaccountable to any judicial officer -- and apparently on a large scale -- is gravely dangerous.

Why the administration even deems it necessary remains opaque. Mr. Bush said yesterday said that the program helped address the problem of "terrorists inside the United States . . . communicating with terrorists abroad." Intelligence officials, The Times reported, grew concerned that going to the FISA court was too cumbersome for the volume of cases cropping up all at once as major al Qaeda figures -- and their computers and files -- were captured. But FISA has a number of emergency procedures for exigent circumstances. If these were somehow inadequate, why did the administration not go to Congress and seek adjustments to the law, rather than contriving to defy it? And why in any event should the NSA -- rather than the FBI, the intelligence component responsible for domestic matters -- be doing whatever domestic surveillance needs be done?

As with its infamous torture memorandum, the administration appears to have taken the position that the president is entitled to ignore a clearly worded criminal law when it proves inconvenient in the war on terrorism. That argument is not as outlandish in the case of FISA as it is with respect to the torture laws, since administrations of both parties have always insisted on the executive's inherent power to conduct national security surveillance. Still, FISA has been the law of the land for 2-1/2 decades. To disrupt it so fundamentally, in total secret and without seeking legislative authorization, shows a profound disregard for Congress and the laws it passes.

What's more, Mr. Bush's general assurances that the program is legal offer no indication of what legal authority, if any, permits this surveillance of what he described as "the international communications of people with known links to al Qaeda and related terrorist organizations." In the torture context, the administration abandoned the argument that the president could simply disregard laws prohibiting brutal interrogations and moved on to other legal theories. There is reason to think something similar has happened here. Does the administration now claim that warrantless surveillance of hundreds of people by an agency generally barred from domestic spying is consistent with FISA? Does it claim that the congressional authorization to use military force against al Qaeda somehow unties the president's hands? Other than claiming it has done nothing illegal, the administration is not saying.

Congress must make the administration explain itself. In the aftermath of the revelations, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said hearings on the matter would be a high priority in the coming year. That's good. It should be unthinkable for Congress to acquiesce to such a fundamental change in the law of domestic surveillance, particularly without a substantive account of what the administration is doing and why.

George Bush's secret police

Editorial
Rutland (Vt.) Herald
December 19, 2005

Editorial
The Milwaukee Journal Sentinel
December 20, 2005

THE UNITED STATES is a constitutional democracy, which means it is governed by laws that are written and enforced within the framework of a constitution. Like any other U.S. citizen, George Bush is required to operate within the boundaries of the law and the Constitution.

We believe that the secret domestic spying network that was first reported last week by The New York Times disregards these basic principles of law and government. The president claims otherwise. Congress must immediately convene hearings to determine if the president has violated laws. These claims of overarching executive powers must be put to the test, if not in Congress then in the courts.

The Times disclosed that, under an order that Bush signed in 2002, just a few months after the terror attacks of 9-11, a federal agency has been monitoring the international telephone calls and e-mails of U.S. citizens and others without court warrants that are ordinarily required for such surveillance. The phone calls or e-mails of up to 500 people in this country are monitored at any given time, The Times noted, which means that the private communications of probably thousands of Americans have been overheard. The wiretapping is conducted by the National Security Agency, which historically engages in electronic eavesdropping in foreign countries, not on U.S. soil.

Bush defiantly defended the practice at a news conference on Monday. He charged that it was "shameful" for The Times to "disclose this important program in a time of war" and said talking about it in public is "helping the enemy."

Far from rushing it into print, The Times withheld publication of this important information for a full year while discussing its impact with senior administration officials. It even omitted information the government claimed would have been useful to terrorists. We can wonder about whether The Times waited too long in publishing, but a year's wait does not point to the type of recklessness the president is charging.

Ordinarily, electronic intercepts in this country are undertaken by the FBI, not the NSA, on the basis of warrants generally obtained without difficulty, sometimes within hours, from a secret court created by the Foreign Intelligence Surveillance Act of 1978.

The administration argues that Bush was given the power to circumvent this court by Congress on Sept. 14, 2001, when it adopted a joint resolution authorizing him to "use all necessary and appropriate force" against those responsible for the terror attacks that befell New York City and Washington, D.C.

This is a stretch. That resolution was an endorsement of the military campaign to overthrow the Taliban regime in Afghanistan and to destroy the al-Qaida gang that had hijacked it. The resolution was not intended to be a revision of the 1978 FISA statute or a blank check to expand executive powers whenever the administration deems it expedient.

In fact, that statute gives the president enormous power. A FISA court can grant a warrant almost instantly. Moreover, the law gives the president the authority to conduct wiretaps for 72 hours before notifying a judge.

The spying has been criticized not only by congressional Democrats but by such Republicans as Pennsylvania Sen. Arlen Specter, chairman of the Senate Judiciary Committee, and South Carolina Sen. Lindsey Graham, who is a judge in the Air Force Reserve.

The president is quite correct. Protecting Americans from terrorist attack is one of his primary duties. And we're cognizant that, should such an attack occur again, recriminations would likely fly fast and furiously. Yet, the array of legal tools available to law enforcement is vast, and the president has just not made the case that getting warrants to spy domestically is overly burdensome. The legal process, in fact, accommodates the notion that it might be necessary sometimes to eavesdrop on U.S. citizens or residents, but judicial checks and balances exist so that this is done as a matter of necessity, not expediency.

Searches of the private communications of American citizens undertaken without the explicit endorsement of the courts constitute a dangerous reach of government power. It ought to be carefully regulated by the courts, not simply claimed by a president.

Clear, present danger
That's what George Bush's actions represent if he is allowed to keep spying unchecked on U.S. citizens

Editorial
The Atlanta Journal-Constitution
December 20, 2005

A LOT OF THINGS changed the morning those jetliners flew into the twin towers in New York and into the Pentagon in Washington.

But some things did not change and cannot change. We did not, for example, change from a democracy to a dictatorship, from a nation of laws to a nation in which one man endows himself with the authority to act above the law, immune to its dictates and limitations.

We are not that country. We must never become that country.

However, to hear George Bush, we are that country already. He proclaimed it so in secret shortly after the attacks of Sept. 11, 2001, and he proclaims it so in public now that news of his extraordinary grab at power has leaked to the citizens.

In brief, the president asserts the unilateral power — unchecked by any court or any act of Congress — to order surveillance of any American citizen. That claim is a clear violation of the Foreign Intelligence Surveillance Act, which requires the president to seek court approval for wiretapping the international conversations and communications of U.S. citizens. More importantly, it directly violates the U.S. Constitution.

The Fourth Amendment is crystal clear:

"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."

How does the president justify a clear and blatant violation of our nation's founding document? Because, he claims, the nation is threatened, and as commander in chief he has the power to do anything he feels necessary to avert that threat. In fact, his claim to be able to spy upon U.S. citizens is only a specific example of a far broader and more audacious grab at power. In his mind, he can ignore any law that he feels interferes with his job.

In recent weeks, for example, Congress has wrangled with the president about the use of torture, with the two sides finally coming to a difficult compromise. That deal is meaningless, however, as long as the president refuses to be bound by any law he finds too confining and claims necessity as his out.

That argument falls apart in a variety of ways, most notably because the Constitution allows for no such exception. Furthermore, the foreign surveillance act was carefully crafted with tough situations such as these in mind, to ensure that the executive branch has the flexibility it needs to respond to emergencies. The president has offered no argument explaining why the law has had to be ignored.

Besides, for decades, we faced off against a far more dangerous foe in the Soviet Union, an enemy with the power to wipe this country and every person in it off the face of the Earth. Soviet efforts to spy on our country and compromise its defenses were far more sophisticated, more extensive and more dangerous than anything al-Qaida or its sympathizers could ever hope to manage. Yet we did not allow the Soviet threat to frighten us into surrendering our civil liberties. Somehow, we managed to defeat that empire and still retain our civil liberties and our constitutional system.

In his press conference Monday, Bush claimed the right to continue violating the Constitution and the law "so long as the nation faces the continuing threat of an enemy that wants to kill American citizens," which pretty much makes it permanent.

The scary thing is, if Congress meekly accepts Bush's assertion, this supposedly "strict constructionist" president will have established executive powers found nowhere in the Constitution, and much that our Founding Fathers accomplished will be undone.

Editorial
The Philadelphia Inquirer
December 20, 2005

IN THE DAYS and weeks following the 2001 terrorists attacks, Americans had every right to fear the worst.

The home front had become the front lines. Civilians hunkered down in homes and offices - praying like soldiers in any foxhole - and wondered whether their lines of defense had been overrun by an undetected enemy.

It was government officials' job to scramble - to gauge the threat, to intercept another attack, to ferret out the nation's newest enemies.

It became glaringly obvious that official lapses permitted the planning of the 9/11 attacks to go undeterred. But just as evident was the awesome arsenal of weapons available for use by law enforcement and federal intelligence agents fighting back.

Even better, powers to respond to the suicide attacks ultimately vested in George Bush had been enhanced - by enactment of the antiterror Patriot Act.

That is why it is all the more shocking to learn, four years later, that the President sidestepped the Constitution in late 2002 by ordering the National Security Agency (NSA) to secretly eavesdrop on hundreds, perhaps thousands, of U.S. residents without first obtaining court approval.

Bush is unrepentant, indeed, saying he acted within his "constitutional responsibilities and authorities." Surveillance without court-approved warrants and oversight will continue, in an effort Bush contends is a "vital tool" in the fight against terrorists.

Well, that's simply unacceptable. No president unilaterally should be able to declare that a part of the Bill of Rights is null and void.

Abraham Lincoln did it by suspending writs of habeas corpus, controversially. But that was with the nation torn apart by civil war.

Bush appears to have done it for no good reason -- other than that his rule-bending legal advisors concocted a rationale to enable a shockingly expansive view of presidential power.

Bush's thesis, that as commander-in-chief he could sidestep the Fourth Amendment protections, is as unfathomable as it is morally repugnant. His claim that Congress' war-on-terror authorization gave him the right strikes many legal scholars as a far, far reach. It's a theory, at any rate, that must be tested - in the courts, in Congress, and by everyday Americans talking around their water coolers.

Senate hearings on Bush's actions proposed by Sen. Arlen Specter (R., Pa.) are a necessary first step. A fully independent inquiry may be needed.

The inquiries, no doubt, will puzzle over a simple fact: All Bush had to do was ask.

Ask, that is, for a special court's approval -- even after-the-fact -- of the NSA eavesdropping on phone calls and e-mail messages.

Under a 1978 law that proscribed domestic spying without court oversight, officials can go to the Foreign Intelligence Surveillance Court for such permission.

The court conducts most of its business in secret, rarely denies a government warrant request, and in an emergency can be consulted within 72 hours after a surveillance order. That's just the sort of fleet-footed flexibility needed in chasing down terrorists, and it was in place in 2001.

Editorial
The Palm Beach (Fla.) Post
December 20, 2005

AMERICA IS NOT the kind of country in which the government spies on its citizens without bothering to get warrants. Any president who says America is that kind of country — and acts as if it were — has no business bragging that he will bring "constitutionally protected freedoms" to Iraq.

George Bush bristled Monday when a reporter at his news conference suggested that he had exerted "unchecked power" in ordering the National Security Agency to conduct surveillance on U.S. citizens who contact people overseas. Mr. Bush doesn't like to have his authority questioned, but time and again his White House has grabbed for unchecked power, and secrecy has been a favored way to prevent oversight. Last week, the public learned from The New York Times that Mr. Bush had authorized domestic spying in October 2001.

The president isn't sorry about the spying; he's just sorry that it isn't secret anymore. He said Monday that the disclosure of warrantless spying is "helpful to the enemy." During his Saturday radio address, he said, "Revealing classified information... endangers our country." In fact, there was no revelation of information, just a tactic. And if "revealing classified information . . . endangers our country," what about the White House's release of a CIA operative's identity?

Under the Foreign Intelligence Surveillance Act, it is illegal to spy on U.S. citizens without obtaining a court order. The Bush administration claims that it needed to act quickly in the wake of Sept. 11 and that, anyway, Congress implicitly granted authority for warrantless phone taps in the October 2001 resolution that authorized President Bush "to use all necessary and appropriate force" against terrorists and those who harbor them.

 Spying
President flouts the law

Editorial
The Charleston (W. Va.) Gazette
December 20, 2005

The president clearly does not understand the nature of his authority as commander in chief. Article 2, Section 2 of the U.S. Constitution reads: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual Service of the United States." This clause gives him authority over the armed forces. It does not make him the sole authority over civil society.

There are committees in Congress whose responsibility is to oversee intelligence functions. From the correspondence released Monday by Sen. Jay Rockefeller, D-W.Va., ranking Democrat on the Senate Intelligence Committee, it’s clear that those committees were not allowed to exercise that responsibility. The letter, written in July 2003 to Vice President Dick Cheney, expresses Rockefeller’s deep qualms about the secret program, which he was forbidden from discussing even with his colleagues on the Senate committee.

On Monday afternoon, Rockefeller released the 2003 letter to Cheney and urged the Senate Intelligence Committee to open a full investigation into the program and the White House’s evasion of congressional oversight.

The president has exceeded his authority and is brazenly asserting that he will continue to do so. We can only echo Rockefeller’s concern and his call for a congressional investigation. Congress needs to remind the White House of the limits to its authority.

We are heartened that many moderate Republican members of Congress are as upset by these revelations as most Democrats. We hope members from both parties unite to stop this assault on Americans’ privacy and on the Constitution.

Editorial
The Austin (Tex) American-Statesman
December 20, 2005

EVERY PRESIDENT wants to be free to act on the basis of nothing more than "trust me." But the United States decided long ago that wasn't good enough. Under our Constitution, presidents must work with Congress and the courts — even when fighting a war against Islamic extremists.

Thank to The New York Times, the nation has learned that George Bush directed the National Security Agency to spy on the telephone calls and e-mails — wiretapping — of some Americans making or accepting international calls, although no law or court action explicitly authorized it. In fact, a 1978 law, the Foreign Intelligence Surveillance Act, bans wiretapping without getting a special court order. Such orders are easy to get from a special court and remain secret.

The president and the lawyers in his administration, including Attorney General Alberto Gonzales, argue that the president's constitutional powers to defend the nation enable him to wiretap.

This is a rather generous reading of a constitutional provision written in 1787, when there were no such things as telephones, e-mail or wiretapping, by an administration that complains of judges who fail to stick to the founders' original intent.

The Bush administration also cites a congressional resolution passed after the Sept. 11, 2001, terrorist attacks that authorizes the president to take military action against terrorists. But the resolution did not waive the constitutional right of Americans "to be secure in their persons, houses, papers, and effects, against unreasonable searches" without a court order.

Bush's worries are not unreasonable. Terrorists killed more than 3,000 Americans on Sept. 11, and there's no reason to think that satisfied them. Though the administration has not disclosed details of the NSA's wiretapping in the United States, The Times reports that it appears the president — who is not known for his attention to detail — kept close watch on the program.

Editorial
The (Minneapolis) Star Tribune
December 20, 2005

IF THERE are any Americans who still retain confidence in the Bush administration's judgment over foreign affairs -- after its inept pursuit of Osama bin Laden, its bungling of prewar intelligence on Saddam Hussein, its botched planning for the occupation of Iraq and its hostility to international norms on torture -- then surely they will be rattled by the disclosure last week that George Bush circumvented federal law and ordered a secret government intelligence agency to spy on Americans.

Even staunch Republicans such as Sens. Lindsey Graham of South Carolina and Arlen Specter of Pennsylvania say they are troubled by The New York Times account. This raises the possibility that maybe -- finally -- moderates in Congress will begin to exercise some independent thinking and critical judgment toward the foreign policy of an administration that has proven itself arrogant, secretive and misguided.

In remarks on Saturday, the president tried to justify his secret order to the National Security Agency (NSA) by arguing that the nation's intelligence needs will sometimes override the privacy interests of its citizens.

This is an offensive, but by now predictable, effort at misdirection. No one has disputed that a nation must sometimes make tradeoffs between civil liberties and the requirements of national defense. The question is whether the president, alone and without independent review, gets to make that call.

Congress weighed this question carefully some 25 years ago and decided that the answer is no. In the Foreign Intelligence Surveillance Act it decided that the president must present evidence to a judge and obtain a court warrant before having the NSA eavesdrop domestically. In recognition of security needs, Congress established a secret and speedy tribunal to handle such requests. Justice Department statistics suggest that the process works: From 1979 to 2002, no warrant application was rejected; retired Adm. Bobby Inman says the judges typically rule within two days.

One might imagine a chief executive so wise and omniscient that ordinary Americans would trust him to waive their civil liberties in a national emergency. But that would not be this chief executive -- the one who heeded John Yoo rather than John McCain on the question of torture and who trusted a defector named "Curveball" over veteran intelligence officers on the issue of Saddam's weapons.

Now the White House is in furious spin mode. Attorney General Alberto Gonzales says Bush has the constitutional authority to use the NSA this way. But four previous presidents, Republicans and Democrats, didn't think so. The president says The Times and its sources have revealed vital secrets to the enemy. But the leak never would have happened and the surveillance would have remained secret if the president himself had followed the law.

All this sounds like an administration that talks only to itself and hears only what it likes. That's not merely inept, it's dangerous.

Bush must be held accountable
George Bush cannot protect democracy by destroying it.

Editorial
The (Olympia, Wash.) Olympian
December 20, 2005

EVERY AMERICAN should be outraged by the president's attempt to justify domestic spying. It's wrong, and the president should acknowledge that fact. He must be held accountable.

Congress should immediately launch a truly bipartisan investigation into the administration's spying campaign. If the Constitution and laws of the United States were broken, Congress should censure the president. And if the lies, the deceit and lawbreaking continue, Congress should take even more drastic action.

Either we are a nation of laws and moral values or we are not. We cannot pick and choose which laws to abide by and which to ignore for the sake of convenience or expediency.

George Bush is not above the law.

This is a military community, with thousands of active duty and retired members of the armed forces among our friends and neighbors. The presidents' actions undermine their service to this nation.

The soldiers in Iraq and Afghanistan are fighting for true democracy, not a democracy that condones domestic spying, or secret prisons or subversion of the Constitution. George Bush has played right into the hands of terrorists and diminished the reputation of the fine men and women who wear this nation's uniforms.

President Bush is the one sending the wrong message to our soldiers and our enemies. Under his leadership, we are becoming known as a nation of hypocrites.

George Bush has built an administration founded on lies and exaggerations and fear. And he has gotten away with it. It's unconscionable.

George Bush promised to take action against any White House official leaking classified information. Yet Karl Rove remains.

When CIA director George Tenet said weapons of mass destruction in Iraq were a "slam dunk," he was dead wrong. How was he punished? He was awarded the Presidential Medal of Freedom.

George Bush says the United States does not torture, yet his administration fought tooth and nail against an ex-plicit ban on torture. Abu Ghraib was an exception, we were told. But then we learned there were secret prisons abroad where who knows what goes on.

The president excoriated congressmen Monday for not blindly passing the overbroad USA Patriot Act because they didn't trust that there were adequate safeguards against abuses. Ironically, that happened at the same time as President Bush promised to continue the illegal wiretaps. He seemed to be saying, "Trust me."

Well, Mr. President, we are sorry to say that we don't trust you or your administration because you have abused that trust so often in the past.

His effort this week to turn around his abysmal poll numbers should fall on deaf ears. The American public knows that domestic spying is something out of George Orwell's 1984. Yet George Bush has made that "Big Brother" fantasy a reality.

Attempting to justify the indefensible, the president on Monday said he would continue the program of moni-toring phone calls and e-mails "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens" and added that it included safeguards to protect civil liberties.

Baloney!

The president could have gone to Congress and asked for permission to spy on citizens in the United States. The Republican-controlled Congress would have given the president permission in a heartbeat. Or he could use exist-ing wiretap laws that allow a court order 72 hours after the taping has begun. That way, our vital system of checks and balances would have been preserved.

In his arrogance, George Bush did not go to Congress or to the courts for permission (although he claims that he did tell select members of Congress what he was doing — as if that is enough). He sees himself above the law. As commander in chief, he believes he is not bound by the Constitution and its guarantees of civil liberties. In his view, the warrantless spying conducted by the National Security Agency under his direction is an essential ele-ment in the war against terrorists. In that belief he has lowered himself to their level. And there is a disturbing pattern to his behavior.

It's OK to lie about the reasons to go to war.

It's OK to hold hundreds, maybe thousands of prisoners without charges, without legal representation and for an indefinite period of time,

It's OK to have secret prisons.

It's OK to say the provisions of the Geneva Convention don't apply in a war on terror.

It's OK to treat detainees inhumanely, because we can define them as we see fit.

It's OK to use the Patriot Act to pry into library records and lord knows what else.

It's OK, as NBC News reported, for the Pentagon to spy on peace activists.

It's OK to trample on the rights of citizens.

Unchecked Powers