Mendacious Leader
The Madison Question of the Week in last week's local paper (The Madison County Eagle) which had to do with Mr. Bush's use of warrantless wiretaps, produced interesting answers. Two people found the practice acceptable, at least in wartime. Another didn't think the practice broke any laws, while another said she wasn't even aware it was happening. The fifth and last answer 'lowed as how it was wrong because it sets a precedent for breaking laws.
It may seem strange that answers so remarkably different could all contain a measure of truth. The mom who didn't know it was happening clearly answered with the prima facie truth. Similarly, the person who wasn't aware of the laws Bush broke was also telling the truth; to her, the question would thus seem meaningless. The fifth answer -- the "slippery slope" of lawlessness -- while also true, might be interpreted as receptive to this particular infraction were it not for its precedent-setting nature, though the respondent did say that, even in this case, certain words in the wiretaps might be misconstrued, thereby incriminating innocent people.
Before addressing the answers that related to the president's war powers, and just to set the record straight, Mr. Bush's practice appears to have violated the 4th amendment of the Constitution which states, in part, “. . . no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” In every case where courts have been asked to determine the applicability of the 4th amendment to wiretaps, they have held that private conversations using electronic media of any sort, fall within the scope of the 4th amendment. That is, warrantless wiretaps are illegal. The 14th amendment extends the prohibitions of the Constitution to state governments, and establishes that no person's civil rights shall be denied without due process of law. Mr. Bush's practice raises the question of whether the due process provisions of the Constitution were followed.
It has been wisely pointed out that "the Constitution is not a suicide pact," that when circumstances arise where the life of the nation is at stake, the letter, and even the spirit of the law, may be abrogated, sometimes without due process. During and after the Vietnam War, the Congress recognized that modern warfare takes place at a much faster pace than the Founding Fathers could have imagined, and that, consequently, the intelligence gathering ("spying") aspects of warfare might sometimes require action in timeframes too swift for the conventional warrant process. Congress thus passed, in 1978, the Foreign Intelligence Surveillance Act (FISA) which permits wiretaps and similar intelligence gathering activities to be undertaken without a formal warrant.
But FISA did not entirely vacate the Constitution's due process requirement. It established a special court and empowered it to authorize wiretaps without the constitutionally required formalities. The same law, also required that any FISA-authorized surveillance that may involve a United States citizen "shall not be disclosed, disseminated, or used for any purpose for longer than 72 hours unless a court order under section 1805 of this title is obtained. . . ." Due process had thus been modified to satisfy the needs of modern warfare.
The problem in Mr. Bush's case is that he did not even use the FISA loophole. He authorized the wiretaps without going before the FISA court. One may well ask, "Why would a law abiding president do such a thing?" Mr. Bush's first response to the accusations was that the time did not permit due process, but the FISA was established precisely to permit speedy action, and it practically always has. (Only 4 out of some 1,500 appeals to the FISA court have been denied.) Later, Mr. Bush declared that when the Congress authorized use of force against Iraq, it also authorized illegal wiretaps. But the FISA specifically reinforces the existing law which states that in the event of declared war, the president can use illegal surveillance for only 15 days following the declaration. It has also been reported that the president tried to get wording inserted into the use of force authorization empowering him to use illegal wiretaps, but that the Congress refused to permit the wording. This indicates that Mr. Bush, (1) knew the law did not permit the actions he has subsequently taken, and (2) that his claim that the Congress had authorized the illegal practice, was patently false. The Congress had specifically denied that power.
The real reasons for Mr. Bush's actions have, thus, not been made clear. So, let me tell you why I think he did what he did, and why the details of the surveillances in question will never see the light of day. (The following is based on commonsensible guesswork.)
For at least three decades the National Security Agency (NSA) has possessed the capability to monitor and analyze all telephone communications between all the people in the world. It is a relatively simple process, at least at first cut. Step one: intercept and record all conversations. Step two: scan the recorded conversations, seeking key words, or key phrases that may indicate intelligence value. Step three: deeply analyze conversations identified in step two to determine their real value. Steps two and three can be undertaken in near real time or after the fact, depending on other criteria. If for instance, the NSA has previously established that calls made from or to certain telephone numbers have high intelligence potential, calls to or from those numbers can be routed for immediate step three analysis. But note well, the process in its entirety, if and when used to monitor the conversations of U. S. citizens, is illegal. The courts have uniformly held that so-called "fishing expeditions" do not and cannot meet the due process provisions of the Constitution. Even if specific foreign telephone numbers were identified, calls could be placed from those numbers to any citizen, and there is no way the NSA or anyone else can identify, in advance, the names of the citizens to whom the calls will be made. It seems that NSA has a nice "little" electronic spying system, great for spying on foreign nations, but absolutely prohibited as a device for spying on American citizens.
This may well explain why Mr. Bush did not exercise the FISA court's due process. The FISA, first, clearly states that it applies only to "foreign powers," their agents, and similar baddies, and specifically states that it in no way authorizes surveillance of United States citizens without a legitimate warrant. It just as specifically states that any surveillance that may turn out to involve a United States citizen must either be disposed of OR duly warranted within 72 hours. The NSA procedure, as described above, and by Mr. Bush in his several statements on the subject, clearly involves United States citizens, at least on one end of the conversation. The NSA procedure thus violates the 4th and 14th amendments.
Apparently, in owning up to having authorized these illegal procedures, Mr. Bush has, as Richard Nixon's attorney, John Dean, recently said, become "the first president to have publicly confessed to an impeachable offense." (The FISA prescribes a $10,000 fine and up to five years imprisonment for each violation. The NSA employees Mr. Bush ordered to carryout the illgal program would thus be subject to severe penalties.) Lawyer Dean may have been wrong about the severity of Mr. Bush’s crime, but if lying about a sexual misadventure was an impeachable offense, it does seem to follow that violation of the specific provisions of the highest law of the land might also qualify. But, we shall see.
It may seem strange that answers so remarkably different could all contain a measure of truth. The mom who didn't know it was happening clearly answered with the prima facie truth. Similarly, the person who wasn't aware of the laws Bush broke was also telling the truth; to her, the question would thus seem meaningless. The fifth answer -- the "slippery slope" of lawlessness -- while also true, might be interpreted as receptive to this particular infraction were it not for its precedent-setting nature, though the respondent did say that, even in this case, certain words in the wiretaps might be misconstrued, thereby incriminating innocent people.
Before addressing the answers that related to the president's war powers, and just to set the record straight, Mr. Bush's practice appears to have violated the 4th amendment of the Constitution which states, in part, “. . . no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” In every case where courts have been asked to determine the applicability of the 4th amendment to wiretaps, they have held that private conversations using electronic media of any sort, fall within the scope of the 4th amendment. That is, warrantless wiretaps are illegal. The 14th amendment extends the prohibitions of the Constitution to state governments, and establishes that no person's civil rights shall be denied without due process of law. Mr. Bush's practice raises the question of whether the due process provisions of the Constitution were followed.
It has been wisely pointed out that "the Constitution is not a suicide pact," that when circumstances arise where the life of the nation is at stake, the letter, and even the spirit of the law, may be abrogated, sometimes without due process. During and after the Vietnam War, the Congress recognized that modern warfare takes place at a much faster pace than the Founding Fathers could have imagined, and that, consequently, the intelligence gathering ("spying") aspects of warfare might sometimes require action in timeframes too swift for the conventional warrant process. Congress thus passed, in 1978, the Foreign Intelligence Surveillance Act (FISA) which permits wiretaps and similar intelligence gathering activities to be undertaken without a formal warrant.
But FISA did not entirely vacate the Constitution's due process requirement. It established a special court and empowered it to authorize wiretaps without the constitutionally required formalities. The same law, also required that any FISA-authorized surveillance that may involve a United States citizen "shall not be disclosed, disseminated, or used for any purpose for longer than 72 hours unless a court order under section 1805 of this title is obtained. . . ." Due process had thus been modified to satisfy the needs of modern warfare.
The problem in Mr. Bush's case is that he did not even use the FISA loophole. He authorized the wiretaps without going before the FISA court. One may well ask, "Why would a law abiding president do such a thing?" Mr. Bush's first response to the accusations was that the time did not permit due process, but the FISA was established precisely to permit speedy action, and it practically always has. (Only 4 out of some 1,500 appeals to the FISA court have been denied.) Later, Mr. Bush declared that when the Congress authorized use of force against Iraq, it also authorized illegal wiretaps. But the FISA specifically reinforces the existing law which states that in the event of declared war, the president can use illegal surveillance for only 15 days following the declaration. It has also been reported that the president tried to get wording inserted into the use of force authorization empowering him to use illegal wiretaps, but that the Congress refused to permit the wording. This indicates that Mr. Bush, (1) knew the law did not permit the actions he has subsequently taken, and (2) that his claim that the Congress had authorized the illegal practice, was patently false. The Congress had specifically denied that power.
The real reasons for Mr. Bush's actions have, thus, not been made clear. So, let me tell you why I think he did what he did, and why the details of the surveillances in question will never see the light of day. (The following is based on commonsensible guesswork.)
For at least three decades the National Security Agency (NSA) has possessed the capability to monitor and analyze all telephone communications between all the people in the world. It is a relatively simple process, at least at first cut. Step one: intercept and record all conversations. Step two: scan the recorded conversations, seeking key words, or key phrases that may indicate intelligence value. Step three: deeply analyze conversations identified in step two to determine their real value. Steps two and three can be undertaken in near real time or after the fact, depending on other criteria. If for instance, the NSA has previously established that calls made from or to certain telephone numbers have high intelligence potential, calls to or from those numbers can be routed for immediate step three analysis. But note well, the process in its entirety, if and when used to monitor the conversations of U. S. citizens, is illegal. The courts have uniformly held that so-called "fishing expeditions" do not and cannot meet the due process provisions of the Constitution. Even if specific foreign telephone numbers were identified, calls could be placed from those numbers to any citizen, and there is no way the NSA or anyone else can identify, in advance, the names of the citizens to whom the calls will be made. It seems that NSA has a nice "little" electronic spying system, great for spying on foreign nations, but absolutely prohibited as a device for spying on American citizens.
This may well explain why Mr. Bush did not exercise the FISA court's due process. The FISA, first, clearly states that it applies only to "foreign powers," their agents, and similar baddies, and specifically states that it in no way authorizes surveillance of United States citizens without a legitimate warrant. It just as specifically states that any surveillance that may turn out to involve a United States citizen must either be disposed of OR duly warranted within 72 hours. The NSA procedure, as described above, and by Mr. Bush in his several statements on the subject, clearly involves United States citizens, at least on one end of the conversation. The NSA procedure thus violates the 4th and 14th amendments.
Apparently, in owning up to having authorized these illegal procedures, Mr. Bush has, as Richard Nixon's attorney, John Dean, recently said, become "the first president to have publicly confessed to an impeachable offense." (The FISA prescribes a $10,000 fine and up to five years imprisonment for each violation. The NSA employees Mr. Bush ordered to carryout the illgal program would thus be subject to severe penalties.) Lawyer Dean may have been wrong about the severity of Mr. Bush’s crime, but if lying about a sexual misadventure was an impeachable offense, it does seem to follow that violation of the specific provisions of the highest law of the land might also qualify. But, we shall see.
posted by Benedict S. at 12:55 PM
3 Comments:
Is the mouse mendacious or just verbose? Entirely too many words, and methinks according to your email, not original words at that. Is the leader mendacious? Do I want to read mendacity anyway? I envy your dexterity at blogging. Now try posting a photo and tell me how.
Any photo on your hard drive.
The lady from Fairhope was technically correct. The "email" did confess that the blog was copied from an editorial. It didn't say who the verbose bastard was who wrote the thing. But it was me.
Interesting new blog going over the matter of why-are-we-fighting-in-Iraq noting the mendacity of our leaders. I'll play Chris Matthews this time: Tell me something I don't know.
Post a Comment
<< Home