archived: 1 - 7 Jan, 2006 Back Next
UPDATED: January 5, 2006
SINS ON THE CONSTITUTION
Congress passes legislation forbidding the United States from using torture of prisoners it holds. Bush immediately acts contrary to the will of the people as expressed by the constitutional powers of the Legislative Branch of government.
When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief.
Bush issued a ''signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said. . . .
Some legal specialists said yesterday that the president's signing statement, which was posted on the White House website but had gone unnoticed over the New Year's weekend, raises serious questions about whether he intends to follow the law.
The plight of two Chinese detainees being held at Guantanamo highlight the violation of human and constitutional rights that is being perpetrated as the Bush administration takes America outside its traditional constitutional values:
A federal judge ruled Thursday that two Chinese Uighur detainees held by the US at Guantanamo Bay could be detained there indefinitely even though their imprisonment was unlawful. US District Judge James Robertson said that the courts simply had no relief to offer the men, who are no longer deemed enemy combatants by the government [JURIST report] but who cannot be returned to China, where they could face death or torture because of their Muslim faith [Human Rights Watch report]. Robertson said an order requiring their release inside the United States was not feasible for a variety of security and diplomatic reasons. Read Robertson's memorandum ruling [PDF] and accompanying order [PDF]. AP has more. Robertson, who had previously been publicly critical of the Uighurs' continuing detention [JURIST report], made headlines earlier this week in another context when he resigned from on the 11-member Foreign Intelligence Surveillance Court [JURIST report] after reportedly expressing concern about a program authorized by President Bush to conduct warrantless wiretaps on international communications by US residents with known links to al Qaeda or other terrorist organizations.
The inescapable conclusion is that Bush and radical Republicans will continue to exercise police powers to any extent they deem necessary, even if it means abridging allegiance to the traditional concepts of constitutional democracy. Bush and the radical Republicans have rather openly announced their abandonment of traditional American values. Ron Suskind authored an article in the New York Times (no longer available online) in which he documented the new principles of the Republican Party:
"He [Bush] truly believes he's on a mission from God. Absolute faith like that overwhelms a need for analysis. The whole thing about faith is to believe things for which there is no empirical evidence", Bruce Bartlett, a Reagan advisor and former treasury official told Suskind. . . .
The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.'' – The Raw Story (emphasis added)
Dr. Steven Jonas’ expands on this theme today in his section of TPJ. Dr. Jonas states the case that Bush’s goals are ultimately destroying the Constitution. Dr. Jonas article is simply a must read.
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UPDATED: January 3, 2006
ALITO
Senate hearings on the confirmation of Judge Alito to the Supreme Court will begin this month. For a Supreme Court that was divided 5 to 4 on so many issues, Alito’s confirmation hearings implicate constitutional rights for generations to come.
Most immediately, a Justice Alito, if confirmed, would be ruling on Bush administration secret surveillance programs. The true scope of Bush’s unilateral authorization of surveillance without constitutional protections is coming to light as noted in TPJ’s article below, “THE LIE.” Some conservatives and libertarians are reaching the same conclusions as TPJ:
William Safire, a noted conservative:
During wartime, we have this excess of security and afterwards we apologize. And that's why I offended a lot of my conservative and hard-line friends right after September 11th when they started putting these captured combatants in jail, and said the president can't seize dictatorial power. And a lot of my friends looked at me like I was going batty. But now we see this argument over excessive security, and I'm with the critics on that."
One reason was that Congress's cumbersomeness, which is a function of its fractiousness, is a virtue because it makes the government slow and difficult to move. But conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the past 10 elections.
On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.
Robert A. Levy of the CATO Institute:
President Bush's executive order sanctions warrant-less wiretaps by the National Security Agency of communications from the United States to foreign countries by U.S. persons. Reportedly, the executive order is based on classified legal opinions stating that the president's authority derives from his Commander-in-Chief power and the post-911 congressional authorization for the use of military force against Al Qaeda. That pernicious rationale, carried to its logical extreme, renders the PATRIOT Act unnecessary and trumps any dispute over its reauthorization. Indeed, such a policy makes a mockery of the principle of separation of powers.
Judge Alito’s track record on the issue should give those who believe in constitutional democracy pause. In representing Pres. Reagan’s administration:
Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror. . . .
The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."
Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot.
The FBI had received information about a conspiracy to destroy utility tunnels in Washington and to kidnap Henry Kissinger, then national security adviser, to protest the Vietnam War.
In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.
"The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.
"When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook," the brief said.
Signing the document was Rex E. Lee, then the solicitor general, officials from the Justice Department and Alito.
Alito's analysis about the court and the need for an incremental legal strategy proved prescient. The case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.
"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court held.
However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.
The decision was consistent with the Supreme Court's unanimous ruling in 1972 that it was unconstitutional for the government to conduct wiretaps without court approval despite the Nixon administration's argument that domestic anti-war groups and other radicals were a threat to national security. – Yahoo News (emphasis added)
Is there any reason to believe that a Justice Alito would not vote to protect the Bush administration’s warrantless searches?
Junkie Editor Michael Carmichael makes the case against confirmation of Judge Alito in his section of TPJ today. Carmichael delivers a powerful message not only to Democrats but to every American citizen who believes in constitutional democracy.
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Bush has been touring America touting his belief that America’s economy is growing stronger, largely due to his policy of tax cuts. The Economic Policy Institute paints a truer picture of the results of five years of Republican economic policy:
These are the 2006 talking points for every Democrat.
THE LIE
Bush – April 20, 2004:
Now, by the way, anytime 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 of the Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
Bush lied to every American, and he knew it was a lie when he spoke. The parameters of Bush’s secret, non court approved, surveillance program is coming into focus.
The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said. – New York Times
Bush simply decided to circumvent the constitutional protections that he assured Americans were in place:
U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.
A review of Justice Department reports to Congress by Hearst newspapers shows the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.
The 11-judge court that authorizes FISA wiretaps modified only two search warrant orders out of the 13,102 applications approved over the first 22 years of the court's operation.
But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history. – UPI
The uptake is that the system of approving warrants was working, but not to Bush’s satisfaction:
Attorney General Alberto Gonzales said last week that Bush authorized NSA surveillance of overseas communications by U.S.-based terror suspects because the FISA court's approval process was too cumbersome. – SF Gate (emphasis added)
Even Bush’s justice Department under former Attorney General Ashcroft refused to approve significant aspects of the program that Bush put into place. The NY Times has just released this story:
A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.
The concerns prompted two of President Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general - to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.
The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.
The Pittsburg Post Gazette most clearly states the dangers underlying Bush’s policy:
The Bush administration is continuing its assault on Americans' privacy and freedom in the name of the war on terrorism. . . .
[The] government . . . is maintaining information on Americans, reminiscent of the Johnson and Nixon administrations' approach to Vietnam War protesters. The existence of those records should be seen against a background of the Bush administration's response to criticism of the Iraq war by retired Ambassador Joseph C. Wilson. His wife's career at the CIA was ended in revenge for an article he wrote unmasking a dodgy piece of intelligence that President Bush had used in a State of the Union message to seek to support his decision to go to war.
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. . . .
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 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.
“Police state.” That may appear a harsh judgment to some Americans, who are rightfully concerned about national security. But, Bush’s surveillance programs are not just limited to “terrorists.”
A University of California chancellor called Wednesday on Bay Area congressional representatives to investigate the government's reported spying at college campus protests, including one in April at UC-Santa Cruz.
``We are greatly concerned about the Pentagon's investigation of a UCSC campus protest of military recruiting last spring,'' UCSC Chancellor Denice Denton wrote in a campus e-mail. ``MSNBC reports that this protest was classified as a `credible threat' by the Department of Defense.''
She called the government's investigation of the campus protest ``a questionable use of military resources,'' adding, ``It is especially disquieting that political dissent would be considered threatening.''
``As a nation, we must be vigilant and careful in balancing the competing needs of national security and the fundamental rights and values of individuals in a free and democratic society,'' Denton wrote.
The Republican response? An investigation into who leaked the information to prove that Bush is lying:
The Justice Department has opened a criminal investigation into recent disclosures about a controversial domestic eavesdropping program that was secretly authorized by President Bush after the Sept. 11, 2001, attacks, officials said yesterday.
Federal prosecutors will focus their examination on who may have unlawfully disclosed classified information about the program to the New York Times, which reported two weeks ago that Bush had authorized the National Security Agency to monitor the international telephone calls and e-mails of U.S. citizens and residents without court-approved warrants, officials said.
The New York Times learned of the spying program a year ago, but they withheld the story based on Bush’s assertions that public disclosure would undermine national security. Bush’s lie becomes public and now the investigation begins?
Last Update: 03/27/2006