Archive for the ‘Fourth Amendment’ Category
This past week, lots of pundits from across the political spectrum have warned Republicans not to overreach on the AP story. They’re warning that this is a national security issue. That isn’t exactly accurate. It’s time to unravel the DOJ’s disgusting behavior.
At the heart of the scandal is this statement from Attorney General Holder:
Here’s what Attorney General Holder said that isn’t accurate:
HOLDER: This was a serious leak, a very, very serious leak. I’ve been a prosecutor since 1976 and I have to say that this is among, if it isn’t the most serious leak, it is among the top 2 or 3 leaks I’ve ever seen. It put the American people at risk. And that is not hyperbole. It put the American people at risk and trying to determine who was responsible for that required very agressive action.
First, this wasn’t a leak. Here’s the real story:
Although the Justice Department has not explained why it sought phone records from the AP, Pruitt pointed to a May 7, 2012, story that disclosed details of a successful CIA operation in Yemen to stop an airliner bomb plot around the one-year anniversary of the May 2, 2011, killing of Usama bin Laden.
The AP delayed publication of that story at the request of government officials who said it would jeopardize national security.
“We respected that, we acted responsibly, we held the story,” Pruitt said.
Pruitt said the AP published the story only after officials from two government entities said the threat had passed. He said the administration still asked that the story be held until an official announcement the next day, a request the AP rejected.
This wasn’t a leak. The AP apparently got word that the CIA asset wasn’t in danger. The CIA said they wanted another day to issue a press release on spoiling this terrorist plot. At that point, the AP decided that they didn’t need to hold their story any longer.
It’s believable that the CIA was upset that they didn’t get to issue their press release first. Based on the fact that the DOJ hasn’t disputed the AP’s statements, it’s fair to assume that the AP acted appropriately in terms of taking the national security and intelligence gathering needs of the nation into serious, sober consideration.
That’s the front end of this scandal. The next part is what makes this one of the most disturbing scandals in recent history. Based on what we know from the first part of the scandal, we know that there wasn’t a need for urgency in stopping a leak that might’ve compromised a CIA asset in the Middle East. That means the DOJ wasn’t entitled to grab the records it did without telling the AP about this massive grab of AP phone records. That means the DOJ was obligated to going to court to apply for a search warrant and for the AP to contest the scope of DOJ’s phone records grab.
The federal government’s need to protect intelligence-gathering assets in harms way isn’t disputed. In fact, the AP apparently acted responsibly in this respect.
Now that we’ve determined these basic, undisputed facts, it’s time to question DOJ’s actions. Did the DOJ need to sieze 2 months of the AP’s phone records? Did DOJ need 2 months of phone records of over 100 AP reporters and editors? If it didn’t, why did DOJ sieze these sensitive records, especially without giving the AP the chance to contest the DOJ’s actions?
Unless new facts emerge that support DOJ’s actions, Americans of all political stripes should question DOJ’s ham-handed behavior in this matter.
UPDATE: Follow this link to read more on the DOJ-AP scandal.
Minutes after President Obama said that it’s too early to tell who detonated the Boston Marathon bombs, David Axelrod suggested that the White House thought it was a white guy because of Tax Day. Barney Frank then used the terrorist attack as an opportunity to say that the terrorist attack was proof we needed to raise taxes. This morning, Salon’s David Sirota wrote this column to say that he hopes the terrorist is a white guy:
As we now move into the official Political Aftermath period of the Boston bombing, the period that will determine the long-term legislative fallout of the atrocity, the dynamics of privilege will undoubtedly influence the nation’s collective reaction to the attacks. That’s because privilege tends to determine: 1) which groups are, and are not, collectively denigrated or targeted for the unlawful actions of individuals; and 2) how big and politically game-changing the overall reaction ends up being.
This has been most obvious in the context of recent mass shootings. In those awful episodes, a religious or ethnic minority group lacking such privilege would likely be collectively slandered and/or targeted with surveillance or profiling (or worse) if some of its individuals comprised most of the mass shooters. However, white male privilege means white men are not collectively denigrated/targeted for those shootings, even though most come at the hands of white dudes.
Likewise, in the context of terrorist attacks, such privilege means white non-Islamic terrorists are typically portrayed not as representative of whole groups or ideologies, but as “lone wolf” threats to be dealt with as isolated law enforcement matters. Meanwhile, non-white or developing-world terrorism suspects are often reflexively portrayed as representative of larger conspiracies, ideologies and religions that must be dealt with as systemic threats, the kind potentially requiring everything from law enforcement action to military operations to civil liberties legislation to foreign policy shifts.
Let’s be clear about something important from the outset. The FBI’s investigation should go only where the forensic evidence takes them. If forensic scientists determine that the bombs’ markers suggest that the bombs were patterned after the Iranian-manufactured IEDs that were detonated against US troops in Iraq, then that’s where their investigation should take them.
If the bombs’ components suggest they were the work of a lone wolf domestic terrorist, that’s the direction the investigation should head in.
Next, in the aftermath of 9/11, President Bush made clear that his national security team would welcome US mosques’ help in tracking down terrorists. As the investigation into terrorist networks gathered information, he talked about specific Saudi, Pakistani and Egyptian madrassas as producing terrorists.
In other words, the accusations were based on the information that was gathered during their investigation, not because the Bush administration had it in for Muslims.
By contrast, the FBI hasn’t uncovered a system of white guy training grounds to kill abortionists and others they don’t agree with. For instance, the FBI didn’t find a string of militias started in Tim McVeigh’s honor. That means white guys who’ve committed acts of terror have acted without a network of support, thus fitting the description of acting as lone wolf terrorists.
Sirota then made this reference:
By contrast, even though America has seen a consistent barrage of attacks from domestic non-Islamic terrorists, the privilege and double standards baked into our national security ideologies means those attacks have resulted in no systemic action of the scope marshaled against foreign terrorists. In fact, it has been quite the opposite, according to Darryl Johnson, the senior domestic terrorism analyst at the Department of Homeland Security, the conservative movement backlash to merely reporting the rising threat of such domestic terrorism resulted in DHS seriously curtailing its initiatives against that particular threat. (Irony alert: When it comes specifically to fighting white non-Muslim domestic terrorists, the right seems to now support the very doctrine it criticized Democratic presidential candidate John Kerry for articulating, the doctrine that sees fighting terrorism as primarily “an intelligence-gathering, law-enforcement, public-diplomacy effort” and not something more systemic.)
The Crooks and Liars post refers to Jared Loughner, the man who attacked Gabby Giffords in Tuscon. The Loughner attack on Giffords was tragic but it wasn’t the act of a terrorist. It was an attack by a crazed madman who didn’t have control of his faculties. Comparing Loughner’s attack with the Boston Marathon terrorist attack is foolish.
First, there’s no proof that Laughner pre-planned his attack. There’s tons of proof that the Boston Marathon terrorist attack was pre-planned. Loughner bought ammunition for his gun, then went out and shot a bunch of innocent people. The Boston Marathon terrorist or terrorists bought the bombs’ components, put them together, deployed them to specific locations designed to create the most bloodshed and fear possible.
It’s right to say that the Boston Marathon terrorist attack was pre-planned while the Loughner attack, though tragic, didn’t require any planning.
Second, as to the point about then-Candidate Kerry being right, that’s laughable. Reading terrorists their rights isn’t being right. Passing a global test isn’t being right. Pretending that killing the Taliban in Afghanistan was all that was needed to end the war isn’t being right.
When a domestic terrorist is captured, like the Lackawanna Six, the Bush administration used law enforcement. They applied for and got search warrants through the FISA Courts. When the NSA picked up chatter about a terrorist network while they surveiled terrorists in Pakistan or Afghanistan, the Bush administration used the CIA or other special forces to roll up entire networks of terrorists.
In other words, the Bush administration policy towards terrorists was complex and multi-faceted whereas the Kerry plan wasn’t multi-faceted. It relied on reading all terrorists their Miranda rights, then hoping they could find out about the terrorists’ networks by having a conversation with the terrorists.
Treating Jared Loughner and Tim McVeigh differently than foreign terrorists makes sense because the specifics are dramatically different. Loughner didn’t pre-plan his attack. McVeigh pre-planned his attack but he wasn’t assisted by a vast network of like-minded terrorists. Only time will tell whether the Boston Marathon terrorist attack was supported by a network of like-minded terrorists.
Simply put, let’s hope the FBI captures the terrorist or terrorists before they can strike again.
Thursday night, I was flipping through the channels at about 10:30. Lou Dobbs was discussing gun violence with Bill O’Reilly so I thought I’d take a moment to hear what they’d have to say.
O’Reilly said that background checks were good but that it was necessary for legal gun owners to register guns. Then he said something that frightened me and angered Dobbs. O’Reilly said that there should be a law that gave a 10 year mandatory sentence to people who didn’t register their guns. Here’s O’Reilly’s explanation/’justification’ for his law:
O’REILLY: But if you had the registration and the cops went out and stopped and frisked and grabbed the gun, that’s a 10 year penalty.
Later, he said that this would be done as a preventative measure. There’s just one sticky problem with O’Reilly’s law. It’s unconstitutional. The first time it got challenged in the Supreme Court, it’d be ruled unconstitutional with a near-unanimous vote. The Fourth Amendment prohibits searches of this kind. Here’s the text of the Fourth Amendment:
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.
I’m not a constitutional attorney but I’d argue that requiring probable cause to be proven prohibits ‘preventative searches’.
Imagine police being able to search a person without obtaining a warrant. Without the Fourth Amendment’s protections, law officers would be able to go anywhere and search for anything at any time for any reason. That isn’t American. That’s what Third World dictators do in a police state. It’s what they did in the former Soviet Union or Saddam’s Iraq. It’s what they’re doing in China and North Korea.
I don’t doubt that Mr. O’Reilly’s intentions are sincere. There’s no question in my mind that he genuinely wants to protect children from gun violence. That said, the road to hell is paved with good intentions. O’Reilly is a reactionary. He doesn’t think things through. It isn’t likely that he ever will.
After watching last night’s debate on national security, I’ve reached the conclusion that it’s time to write off Crazy Uncle, aka Ron Paul. Like Herman Cain, Crazy Uncle is totally out of his element the minute the subject shifts to national security.
His statement that he doesn’t remember voting for going to war simply isn’t credible. The AUMF clearly states that it’s giving President Bush the authority to wage war:
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
Approved September 18, 2001.
Clearly, Congress voted to give President Bush the permission to wage war “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
That’s pretty clear in its intent. Congressman Paul, like his supporters, insist that this isn’t Congress approving going to war. What part of “the President is authorized to use all necessary and appropriate force” and that “the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution” doesn’t Congressman Paul understand?
Does Congressman Paul think that that isn’t sufficient because it doesn’t follow a mythical form letter that’s to be used in declaring war?
Crazy Uncle was at it again when he talked about Timothy McVeigh in the context of the Patriot Act. Thankfully, Newt Gingrich explained that there’s a difference between criminal law and acts of war and that the Constitution makes clear the differences. Here’s Byron York’s take on the exchange:
Better to treat terrorism as a crime, Paul argued. “I think the Patriot Act is unpatriotic because it undermines our liberty,” he said. “I’m concerned, as everybody is, about the terrorist attack. Timothy McVeigh was a vicious terrorist. He was arrested. Terrorism is still on the books, internationally and nationally, it’s a crime and we should deal with it. We dealt with it rather well with Timothy McVeigh.”
At that point, it was Gingrich’s turn to look like a man who couldn’t believe what he had heard. “Timothy McVeigh succeeded,” Gingrich said incredulously. “That’s the whole point. Timothy McVeigh killed a lot of Americans. I don’t want a law that says after we lose a major American city, we’re sure going to come and find you. I want a law that says, you try to take out an American city, we’re going to stop you.”
First, the Presidential Oath of Office says that, as Commander-in-Chief, he’ll protect against all enemies, foreign and domestic. It doesn’t say that he’ll prosecute them after they’ve killed hundreds of people.
Second, there’s a distinction between reasonable searches and unreasonable searches. The Fourth Amendment prohibits unreasonable searches. It doesn’t prohibit reasonable searches.
Among the things that the Fourth Amendment doesn’t prohibit are items in plain sight or gathering intelligence in times of war.
Last night’s debate showed why Ron Paul shouldn’t and won’t be president. That’s why this article shouldn’t be taken seriously.
Still, Ron Paul keeps moving steadily toward a position of strength in the early voting, especially in Iowa. So he may yet surprise the pundits writing him off today.
Ron Paul will have a decent finish in Iowa. The minute he gets to New Hampshire and especially South Carolina, though, he’s history. Northeastern libertarians are more centrist than Dr. Paul. South Carolina is home of conservatives, not libertarians. Dr. Paul’s faithful followers will show up but there aren’t nearly enough of them to make a difference.
That’s why I’m certain that the Ron Paul boomlet won’t happen. It’s time for Crazy Uncle to retire.
Bill Kristol made several good points in this video:
Still, the thing that he didn’t do is what I’ll do here: The U.S. closing its embassy in Yemen is the U’S. government’s equivalent of Mark Dayton shutting down his office a week before the 2004 elections based on information that no one else got.
This is yet another embarrassing moment for the Obama administration’s national security team. Earlier this week, the Obama administration announced that they were working closely with the Yemeni government in shutting down AQY. Days later, they’re shutting down the U.S. embassy in Yemen.
This is a huge propaganda win for the jihadists. Democrats repeat the mantra that closing Gitmo is imperative because the jihadists use it in recruiting new jihadists. Obviously, the Democrats didn’t learn from their Murtha/Clinton cut and run episode in Somalia.
If they’d learned from that, they’d know that the U.S. cutting short military operations told bin Laden that we were, in his words, “a paper tiger.” It’s impossible to think that the jihadists don’t believe that the Obama administration is the newest American paper tiger.
Couple the embassy closing with arresting Abdul Mutallab instead of capturing and interrogating him and it’s been a disastrous week for the Obama administration’s national security team.
Cross-posted at California Conservative
One thing that hasn’t been discussed much thus far is how much Democratic politicians want to intrude into our lives. That’s about to change. The House Energy and Commerce Committee just requested the pay records for the executives of United Health Insurance. Here’s a short list of things that the House Energy and Commerce Committee is requesting:
- a list of every employee of United Health who made more than $500,000 a year in any year between 2003 and 2008;
- that individual’s position within the company;
- that individual’s salary;
- that individual’s bonuses;
- that individual’s stock options;
- the “realized value of all sales of stocks and exercised options” for these individuals.
That’s just part of the list. I’d strongly recommend that everyone read the 3-page letter sent by House Energy and Commerce Committee chairman Waxman and House Subcommittee on Oversight and Investigations chairman Bart Stupak.
Here’s what I want to know: What article in the Constitution gives these Democrats the authority to request such information?
It gets worse. According to this Chicago Tribune article, the information requested isn’t being requested of those companies who’ve signed onto Obamacare:
A spokesman for Rep. Bart Stupak, D-Mich., said Tuesday night that 52 letters had been sent to health insurers with $2 billion or more in annual premiums. He said letters were not dispatched to other industry groups, some of which have been airing television advertising in support of Obama’s call for legislation.
The request to insurance companies included records relating to compensation of highly paid employees, documents relating to companies’ premium income and claims payments, and information on expenses stemming from any event held outside company facilities in the past 2Â½ years.
Forgive me for thinking that that sounds like the companies that signed onto the Obamacare plan were actually part of a protection money racket. Isn’t such a racket considered extortion? Doesn’t it also sound like the companies that didn’t get House Energy and Commerce Committee letters agreed to a pay to play scheme? Or is it more accurate to call it a pay to not play scheme?
This is how freedom is lost. When elected officials think that they can use their office’s prestige to look into things that the Constitution doesn’t give them the authority to do, that’s where tyranny begins. That’s the exact condition that the Founding Fathers wrote into the Declaration of Independence as warranting the replacing of such governance:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. â€” That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, â€” That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Simply put, Waxman’s committee is running afoul of the Constitution. It can’t be tolerated. I’m not suggesting that we rewrite the Constitution. I’m simply sugegsting that we defeat in the next election politicians that think they’re entitled to any information they’re interested in.
I just finished watching the Special Report online. They couldn’t have been clearer on this: they think this is a PR nightmare for the White House and for Democratic strategists working for House candidates and incumbents.
Carl Cameron said that “this won’t get much play in the mainstream media” because they don’t want President Obama’s image tarnished. My message to Campaign Carl is this: Thanks to Fox, conservative talk radio and blogs like mine, we’ll get this information out. It’ll likely take a vigorous ‘word of mouth’ campaign waged both with emails, Facebook and Twitter but also by telling people about Rep. Waxman’s and Rep. Stupak’s bullying tactics.
Let’s understand the context that this letter was written under. Reps. Waxman and Stupak are highly powerful members of the committee that’s trying to make the government option part of the health care reform bill. That means that the information that they’re requesting is information that, should the government option become law, would give these 52 insurance companies’ chief competitor all the information about pay scales, profit levels, etc.
In my way of thinking, that’s downright evil. That’s how intrusive this Democratic majority is. Their concerns for privacy are nonexistant. They want all the information they can get their hands on so they can build a government-run monopoly involving 16 percent of the American economy.
I said it before but it’s worth repeating: There’s nothing competitive about a monopoly. That’s especially true when government is the monopoly. Does anyone think that they’ll care about responsiveness or competitiveness if they essentially dictate health care pricing and policy?
There’s an important question that must be asked now that we have this information: In light of this information, shouldn’t we hesitate in trusting anything that this Democratic administration and this Democratic Congress says? Why should I trust them when they say that the government option is just to provide competition to health insurance companies?
The only way we can stop these Democrats is to defeat them this fall by telling them that their intrusive tactics aren’t welcome, then defeating them in November, 2010. The government option can’t happen if John Boehner is installed as the speaker in January, 2011.
Cross-posted at California Conservative
According to this Pi-Press article, the NFLPA is suing the NFL over their suspensions of 6 players. Here’s the details on the NFLPA’s lawsuit:
The NFL Players Association filed suit against the NFL today in U.S. District Court in Minneapolis to lift the suspensions of five players, including Minnesota Vikings defensive tackles Kevin and Pat Williams, for violating the league’s steroids and banned substances policy, claiming the league failed to inform the players the diuretic they were using violated the policy and therefore jeopardized the players’ health.
The union’s arguments mirrored those made by the Williamses’ attorneys Wednesday night in winning a temporary restraining order in Hennepin County District Court that allowed the two Vikings stars to return to practice at Winter Park today and put them on track to play in Sunday’s game at Detroit.
The NFLPA is suing under the Labor Management Relations Act to vacate the six players’ suspensions handed down Tuesday by Jeffrey Pash, executive vice president of the NFL and the commissioner’s designated hearing officer.
“At no time did the NFL warn NFL players or the NFLPA of the presence of Bumetanide in StarCaps and potential health risks of the product,” the suit said. “Further, it was completely improper for Mr. Pash to be the hearing officer to determine whether the suspensions were valid. Mr. Pash could not be a fair arbitrator in these unique circumstances in which his office was directly implicated.”
It’s common knowledge that the NFL failed to disclose the fact that Bumetanide, a banned substance according to the labor agreement, was in the diuretic known as StarCaps. It reeks that the NFL withheld this information from the union, then suspended six players for using the banned substance that the NFL failed to disclose to the players union.
Furthermore, it’s insulting that the NFL was the arbiter on whether the suspensions that they imposed were valid suspensions. Comparing the NFL’s appeals system with the US judicial system is a picture in contrasts. When a person appeals a court ruling in US Court, they go before an appellate court. They don’t go before the same judge for their appeal.
The players’ appeals were handed down by Mr. Pash, which should eliminate Mr. Pash from ruling on whether the suspensions are valid. If the NFL was interested in being impartial, they’d agree to have an independent board rule on the legitimacy of their suspensions.
What’s worse is that the label for StarCaps doesn’t mention that Bumetanide is an ingredient in the product. How were these players supposed to know that they were taking a banned product? The NFL has hidden behind the insane statement that it’s the players who take final responsibility for what they put into their bodies.
The final absurdity is that Bumetanide is on the NFL’s banned susbstance list because it allegedly masks steroid use. Supposedly, the NFL’s goal is to reduce steroid use. It’s absurd to think that Pat & Kevin Williams used Bumetanide to hide their use of steroids. Had Pat Williams & Kevin Williams suddenly gotten larger, that’s one thing. I’ve been watching them since the Mike Tice era, which ended after the 2005 season.
The Williams Wall has been their nickname since the Vikings signed Pat Williams with good reason. (Personally, I prefer my nickname of the Monsters of the Middle better but that’s another story for another post.) They’ve been the best defensive tackle combination since they joined forces. They’ve been oversized and athletic from Day One of their first training camp together.
The point I’m making is that it’s clear that they aren’t using steroids. They’ve been big for at least 5 years.
One rumor that’s been floating around is that the NFL will drop the suspensions because they don’t want to have their testing protocols & procedures made public through discovery.
The NFL’s suspension appeals system is a joke. It needs to be reformed instantly and dramatically. If one person is both the judge, jury and appellate court judge, it seems to me that that doesn’t meet the minimal due process standards that our Constitution guarantees.
That’s what should determine the outcome of this appeal.
UPDATE: The Strib’s Judd Zulgad just posted the NFLPA’s official statement on their lawsuit against the NFL. It’s must reading. Here’s the statement’s text:
The NFLPA today filed a lawsuit in Federal District Court in Minneapolis challenging the suspensions of three New Orleans Saints players and two Minnesota Vikings players under the NFL Steroids Policy. The lawsuit claims a breach of duty on the part of league-appointed doctors and the NFL lawyer administering the policy who failed to warn players or the NFLPA that Starcaps, a legal, over the counter product commonly used for weight reduction, contained a substance which is prohibited by the program. These doctors knew as early as 2006 that use of Starcaps could cause a player to test positive under the program, after taking the unusual step of testing that product on their own initiative. The lawsuit requests an immediate injunction against the suspensions so that the five players can continue to help their teams reach the playoffs this season.
Richard Berthelsen, Acting Executive Director and General Counsel of the NFLPA, stated: â€We are taking these steps today in hopes of keeping these players on the playing field. We strongly believe that the doctors and the NFL should have told us and the players what they knew about Starcaps, but for some unknown reason they failed to meet that duty.â€
If the NFL had an affirmative responsibility to notify the NFLPA of products that use banned substances, then the NFL has a big problem on their hands. Whether that’s the case is for a judge to decide. Nonetheless, the NFL’s actions are troubling at minimum.
Silvestre Reyes’ dishonesty is showing. Here’s where Rep. Reyes goes wrong in his March 20th Strib op-ed:
As the chairman of the House Intelligence Committee, I am committed to taking this fight to the terrorists, but I remain convinced that we can do that while stopping this administration, or any administration, from conducting warrantless spying on Americans. Our responsibility includes not only the safety of the American people but also the safety and sanctity of the American Constitution. We must protect both.
Rep. Reyes is spinning this beyond acceptable levels. He’s writing about Rep. Michele Bachmann’s op-ed about the expiration of the FISA reform bill known as the Protect America Act (PAA). In the law that expired, FISA was updated temporarily. It expired after 6 months.
Everyone who knows anything about intelligence gathering knows that FISA deals only with foreign surveillance, hence the name Foreign Intelligence Surveillance Act. It has nothing to do with surveilling Americans.
Let’s first examine why the PAA was enacted. A FISA Appellate Court judge ruled that foreign communications that passed through an American telecommunications switch needed a warrant because it was deemed a domestic communication. In this judge’s mind, it didn’t matter that the sender and recipient weren’t Americans. It didn’t even matter that neither the sender or recipient weren’t even in the United States. All that mattered was that the communication passed through an American switch.
DNI Chairman Mike McConnell testified to this in Congress. He repeated that information to FNS’s Chris Wallace:
Director of National Intelligence Mike McConnell recently told Fox News Channelâ€™s Chris Wallace that by summer 2007, â€œWe were in extremis, because we had lostâ€¦about two-thirds of our [surveillance] capability.â€
Director McConnell testified that he was writing out warrants for known terrorists because of the FISA ruling.
In other words, Rep. Reyes is spinning this when he says that he’s “convinced that we can do that while stopping this administration” from “conducting warrantless spying on Americans.” Rep. Reyes should be ashamed of himself for implying that this has anything directly to do with domestic intelligence gathering. the only way it would affect domestic intelligence gathering is if the NSA or CIA spots the name of an American citizen or “person”. If they spot someone living in the United States, then they get a warrant from a court to surveil them.
The only issue left to resolve on the legislation is whether they’ll grant retroactive immunity to the telecommunications companies that assisted in this effort. Here’s how Rep. Reyes opens his op-ed:
A March 14 article by Rep. Michele Bachmann, R-Minn., made several errors in decrying House inaction on electronic surveillance legislation.
First, on the very day her note was published, the House passed legislation that would grant new authority for electronic surveillance. This bill, which represents a collaborative effort between the House and Senate, would give intelligence agencies stronger tools to track terrorist communications while preserving important constitutional rights for Americans.
That isn’t totally accurate. The bill didn’t represent a “which represents a collaborative effort between the House and Senate” because the House bill didn’t include retroactive immunity to the telecommunication companies.
Two other things that Rep. Reyes isn’t mentioning is that the Senate bill passed by a 68-29 margin, a truly bipartisan effort, and that the Senate bill wouldn’t be considered because it would pass with similar bipartisan support.
Rep. Reyes is simply doing Speaker Pelosi’s bidding and doing a lousy job of it at that. Here’s what Sen. Kit Bond, Rep. Peter Hoekstra and Rep. Lamar Smith said in their Washington Post op-ed about the lapsing of the PAA:
We are less safe today and will remain so until Congress clears up the legal uncertainty for companies that assist in collecting intelligence for the government, and until it gives explicit permission to our intelligence agencies to intercept, without a warrant, foreign communications that pass through the U.S. Hereâ€™s why:
- Intercepting terrorist communications requires the cooperation of our telecommunications companies. Theyâ€™re already being sued for having cooperated with the government after 9/11. So without explicit protection for future actions (and civil liability protection for the help they provided in the past), those companies critical to collecting actionable intelligence could be sidelined in the fight.
It has already happened, briefly. â€œ[W]e have lost intelligence information this past week as a direct result of the uncertainty created by Congressâ€™ failure to act,â€ Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey wrote in a letter dated Feb. 22 to Mr. Reyes, the chairman of the House Intelligence Committee.
- The old FISA law does not adequately protect the U.S., which is why it was revised by the Protect America Act last summer. The problem is that, although it has a few work-around-provisions, such as allowing intelligence agencies to conduct surveillance for up to 72 hours without a warrant, FISA ultimately requires those agencies to jump through too many legal hurdles. Those include the Fourth Amendmentâ€™s â€œprobable causeâ€ requirements, protections never intended for suspected terroristsâ€™ communications that are routed through the U.S.
Let’s remember Rep. Reyes’ accusation against Michele Bachmann:
Second, the expiration of the so-called “Protect America Act” (PAA) has not degraded our nation’s intelligence collection capability. Bachmann chose to quote the director of national intelligence in his Feb. 5 testimony to support her argument, but on Feb. 23 the administration had to issue a retraction of those statements, stating that the government is now getting full cooperation from telecommunications companies and that the authorities of the PAA remain in full effect.
I find it troubling that the congresswoman chose to use a subsequently retracted statement in lobbying on a matter of such importance.
Based on the Washington Post op-ed and Director McConnell’s testimony, Rep. Reyes is just plain wrong. The expiration of the PAA has degraded the nation’s intelligence gathering capabilities. Reyes can cite the administration’s retraction all he wants but the facts are that McConnell’s team was writing out warrant applications for known terrorists.
It’s time that the House stopped their charade. It’s time that they stopped spinning their irresponsible behavior. It’s time that they passed the Senate bill so that we’re fighting the terrorist with everything we’ve got in our arsenal rather than fighting them with one arm tied behind our back.
Cross-posted at California Conservative
Isn’t that a splendid headline? It’s the first thing that popped into my head after reading the headline to this AP article:
Court Rejects ACLU Challenge to Wiretaps
Here’s what they’re talking about:
WASHINGTON (AP) – The Supreme Court dealt a setback Tuesday to civil rights and privacy advocates who oppose the Bush administration’s warrantless wiretapping program. The justices, without comment, turned down an appeal from the American Civil Liberties Union to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks. The action underscored the difficulty of mounting a challenge to the eavesdropping, which remains classified and was confirmed by President Bush only after a newspaper article revealed its existence.
“It’s very disturbing that the president’s actions will go unremarked upon by the court,” said Jameel Jaffer, director of the ACLU’s national security project. “In our view, it shouldn’t be left to executive branch officials alone to determine the limits.”
The Terrorist Surveillance Program no longer exists, although the administration has maintained it was legal.
The ACLU sued on behalf of itself, other lawyers, reporters and scholars, arguing that the program was illegal and that they had been forced to alter how they communicate with foreigners who were likely to have been targets of the wiretapping. A federal judge in Detroit largely agreed, but the 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored and thus could not prove they had been harmed by the program.
The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.
This is a major win for the intelligence community and a huge setback for the ACLU and their fellow litigants. The impact of Tuesday’s ruling is that there’s another legal precedent that says warrantless surveillance isn’t illegal. That’s the predictable outcome if you believe that the Fourth Amendment only protects against unreasonable searches.
There’s a lesson to be applied to this year’s election. This lawsuit’s path through the judiciary shows the difference between activist judges and strict constructionist jurists. This all got started when Anna Diggs-Taylor ruled that the NSA’s intercept program violated people’s First Amendment rights of all things. Once it got to the 6th Circuit, though, Diggs-Taylor’s ruling was toppled, setting up a potential hearing in the Supreme Court.
Anna Diggs-Taylor is a Carter-appointed judge with strong connections to the ACLU. For that reason alone, she should’ve recused herself from this case. Failing to do that, she should’ve been removed from this case.
Now that her ruling has been overturned and all their appeals options used, we can get back to surveilling terrorists and hopefully preventing future terrorist attacks.
Cross-posted at California Conservative