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Expanding Surveillance Authority
by William F. Jasper October 30, 2006 The
surveillance power demanded by President Bush would not necessarily provide any
better protection from terrorism, but it would certainly expand executive branch
power.
On December 17 of last year, during his weekly radio address,
President Bush confirmed reports by the New York Times and CNN that,
following the 9/11 attacks, he had given the National Security Agency (NSA)
authorization to eavesdrop on Americans communicating with people overseas. The
president said that ordering such electronic surveillance without judicial
warrants is "fully consistent" with his "constitutional responsibilities and
authorities," and charged that the media exposure of this secret program is
illegal and "damages our national security and puts our citizens at
risk." The NSA, which eavesdrops on billions of communications
worldwide, is barred from domestic spying without a warrant, as required in the
Fourth Amendment of the Bill of Rights. The Justice Department can get warrants
from a special court called the FISA (Foreign Intelligence Surveillance Act)
Court, a 10-judge panel established in 1978 expressly for that purpose. In
emergencies, the NSA may even conduct domestic surveillance for 72 hours without
a warrant. But by the end of that three-day period, it must obtain a warrant.
Over the past nearly 30 years, the FISA Court has denied only a handful of the
thousands of warrant requests. And there is no indication that the 72-hour
emergency provision has been inadequate to deal with serious terrorist
threats. On August 17 of this year, U.S. District Judge Anna Diggs Taylor
ruled that the president's warrantless searches are unconstitutional. The
administration immediately appealed the decision and on October 4, a three-judge
panel ruled that the NSA may continue its eavesdropping while awaiting a final
ruling from the 6th Circuit Court of Appeals. Interestingly, during the December 17, 2005 radio address,
President Bush cited the case of 9/11 hijackers Khalid Al-Mihdhar and Nawaf
Al-Hazmi as a prime example of the need for warrantless surveillance. This duo,
he said, "communicated while they were in the United States to other members of
al Qaeda who were overseas, but we didn't know they were here until it was too
late." It would be difficult for the president to come up with a worse
example to make his point. The various official 9/11 investigations showed that the FBI,
CIA, and NSA all were monitoring Hazmi and Mihdhar. In San Diego, the duo
even lived with Abdussattar Shaikh, an acknowledged undercover asset of
the FBI. The two also had regular contacts with San Diego area militant
jihadists under FBI surveillance, such as Omar al-Bayoumi and Osama Mustafa. FBI
Agent Stephen Butler made repeated efforts to have them arrested, but he was
overruled from above. Moreover, a review of the 9/11 hijackers' visa applications by a
panel of former consular officials revealed that all 15 of the publicly
available applications, including Mihdhar's, had been issued in violation of
existing law, despite blatant red flags that should have disqualified all of
them. Thus, there is no reason to believe that the kind of extraordinary power
demanded by President Bush would have provided any more needed intelligence or
that it would have been acted on any better than the abundant data that was
already available. The House and Senate GOP leadership cynically adopted the White
House strategy of using the issue before the November elections to paint the
Democrats as weak on national security if they didn't vote for legislation to
gut our Fourth Amendment. However, although the House passed its version of the
bill (H.R. 5825) on September 28 (see House vote #40 in the "Conservative
Index," page 26), the Senate did not vote on its version (S. 3931) prior to
adjournment. It is very likely that Congress will try to enact some kind of
expansion of executive surveillance authority, in line with what the White House
is demanding, during the lame-duck session. Readers are encouraged to contact their senators in
opposition to this legislation. To send an online letter, go to: http://www.capwiz.com/jbs/issues/alert/?alertid=9090566 http://www.thenewamerican.com/artman/publish/article_4270.shtml ~~~ Are YOU the
Enemy? Under the Military Commissions
Act of 2006, you could be.
On September 28, by a vote of 65-34, the Senate formally passed
S. 3930, the Military Commissions Act of 2006 (MCA). The next day, the House of
Representatives followed suit, passing the act by a vote of 250-170, and the
affixing of the president's signature is now a formality.* This legislation is
being highlighted by the Bush administration and most Republicans as a
get-tough-on-terrorists measure that allows "alien unlawful enemy combatants ...
[to be] subject to trial by military commissions" without the constitutional
safeguards American citizens possess against illegal detainment and judicial
railroading. Moreover, the bill allows "pain or suffering incidental to lawful
sanctions" and "statements ... obtained by coercion" — think
administration-approved methods of torture. We are being told that this action
is preventive medicine to heal a world gone wrong. Question now: with this fix
in place, what's the prognosis for the patient? To begin answering that question, imagine the following
scenario: your son Michael (or daughter Michelle) is in Florida on vacation; you
speak to him via cellphone when he arrives at the airport and he is waiting in
line to check his bags. You go to your local airport at arrival time to pick him
up and he never appears. You call all the relevant authorities, including the
police, FBI, CIA, and Homeland Security, and no one acknowledges having any
information on your son. You go almost out of your mind; you go to the airport
in Florida, interview security guards, concession stand workers, and cabbies.
You learn nothing. After six months of never-ending worry gnawing at your gut,
your son is dropped at your house. You learn that he was mistaken for a known
terrorist by the CIA, flown to Cuba, and interrogated by being repeatedly put in
a giant freezer and chilled to within an inch of his life and by being painfully
deprived of sleep. All of this would be allowed under the new act. Worse yet,
imagine that the government never figures out that your son is innocent of all
charges, and he never returns. Habeas Corpus In effect, one could say that the sick world is being given
potent poison to bring about the cure sponsored by President Bush. Granted, the
bill does not apparently treat citizens and foreigners equally, and the harshest
treatment would generally be doled out to foreigners, but is the bill something
we want to inflict on ourselves or others? Can we justify it by saying that the
majority of those scooped up will be terrorist killers who deserve what they
get? Let's look at what the bill would do. A component of this bill that has attracted the attention of
legal commentators and civil libertarians alike is that part which authorizes
the president to suspend the right of habeas corpus. Habeas corpus is Latin for
"you have the body." It grants prisoners the right to request from a judge the
reasons for his incarceration. Article 1, Section 9 of the United States
Constitution plainly states: "The privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion the public
safety may require it." Despite the Constitution's clear restriction on the suspension
of this bulwark of liberty, the bill states: No court, justice, or judge shall have jurisdiction to hear or
consider any claim or case of action, including an application for a writ of
habeas corpus, pending on or filed after the date of enactment of this Act,
against the United States or its agents, brought by or on behalf of any alien
detained by the United States as an unlawful enemy combatant, relating to any
aspect of the alien's detention, transfer, treatment, or conditions of
confinement. Torture The act gives President Bush the power to define for American
interrogators behavior that does or does not constitute torture, physical and
mental pain, or serious coercion. Admittedly, according to the black letter of
the Military Commissions Act, evidence obtained by torture is inadmissible
against the suspects. But what constitutes torture? The legislation leaves it up to the military judge to decide
whether or not the coercive methods used to elicit evidence from detainees
constitutes torture. The act instructs the judge to weigh the "totality of the
circumstances" surrounding the garnering of the prisoner's testimony in making
this crucial determination. This sort of ad hoc determination of what is and is
not torture is unsettling and capricious. Remarkably, these parameters will be
the only binding guidelines for the CIA and others responsible for gathering
intelligence from detainees, regardless of principles of the Geneva Convention,
rulings of the Supreme Court, or constitutional prohibitions to the
contrary. Geneva Convention This act dismisses outright the limitations and guarantees
provided by the Geneva Convention, as well. After the vote, Senator Lindsey
Graham (R-S.C.) tried to make the act sound as if it never comes close to
skirting the line in the area of personal legal protections: "America can be
proud. Not only did she adhere to the Geneva Conventions, she went further than
she had to, because we're better than the terrorists." But his statement didn't
even hold water with the military lawyers who would be charged with operating
the tribunals. Several commented on Common Article 3 of the Geneva Convention.
Article 3 (called "Common Article 3" because it is common to all four of the
conventions) proscribes the "passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are recognized as indispensable by
civilized peoples." In addressing this issue before a Senate committee, Brigadier
General James C. Walker, Staff Judge Advocate General (JAG) for the Marine
Corps, lamented: "I'm not aware of any situation in the world where there is a
system of jurisprudence that is recognized by civilized people, where an
individual can be tried without, and convicted without seeing the evidence
against him. And I don't think the United States needs to become first in that
scenario." This new law clearly ignores General Walker's concern.
Specifically, the law declares: "It generally is neither practicable nor
appropriate for combatants like al-Qaeda terrorists to be tried before tribunals
that included all of the procedures associated with courts-martial." Brigadier General Walker's warning voice was but one in a
respectable chorus of credible opponents harmonizing in their condemnation of
the unconstitutional and unjust aspects of the new law. None of the parts of
this song sound as persuasive as that of the officers of the armed forces
justice system, known as the Judge Advocate General (JAG) Corps. These uniquely
interested and informed military legal experts adamantly oppose several key
aspects of this new legislation. Referring to the new law's provision that a detainee is not
allowed to see the evidence presented against him, Rear Admiral Bruce E.
MacDonald, the Navy's top lawyer, echoes his colleague's sentiments: "I can't
imagine any military judge believing that an accused has had a full and fair
hearing if all the government's evidence that was introduced was all classified
and the accused was not able to see any of it." Not to be left out of the battle, the Air Force's chief lawyer,
Major General Jack Rives, flew into the fray and dropped a bomb on the MCA,
declaring that the commissions established by the act do "not comport with my
ideas of due process." Are You an Enemy Combatant? Americans would be forgiven for naively believing that while the
threats to liberty in the MCA tip-toe toward tyranny, they will only be used
toward that end against those with at least diaphanous ties to terrorism.
Namely, they would be employed to protect Americans from that group of
n'er-do-wells known as "unlawful enemy combatants." In language that is sure to
shake your sense of safety, the following is the MCA's definition of an
"unlawful enemy combatant": The term "unlawful enemy combatant" means: (i) a person who has
engaged in hostilities or who has purposefully and materially supported
hostilities against the United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the Taliban, al-Qaeda, or
associated forces); or (ii) a person who, before, on, or after the date of the
enactment of the Military Commissions Act of 2006, has been determined to be an
unlawful enemy combatant by a Combatant Status Review Tribunal or another
competent tribunal established under the authority of the president or the
secretary of defense. Notice that this definition contains no exception for Americans;
it throws the blanket over citizen and alien alike by using the word "person"
rather than "alien." Jose Padilla found this out firsthand. Jose Padilla is an American — born in New York and raised in
Chicago. On May 8, 2002, he was arrested in Chicago after returning from
Pakistan upon suspicion of being linked to the September 11, 2001 terrorist
attack. Padilla's attorney immediately filed a habeas corpus petition with the
United States District Court for the Southern District of New York, seeking to
invoke his client's constitutionally guaranteed right to be informed as to the
justification for his confinement. The court denied Padilla's petition citing
the president's authority to designate any person, citizen or alien, an "enemy
combatant" and to detain such person indefinitely. Padilla appealed this decision to the 2nd Circuit Court of
Appeals. The appellate court held that the president had no such authority. The
administration then appealed this ruling to the Supreme Court, where the
justices were called to consider the legitimacy of the president's power to
suspend the constitutional protections of the due process of law from an
American citizen. The court meekly dodged this issue, however, and remanded the
case back to the district court for dismissal without prejudice. Admittedly,
Jose Padilla has a history of criminal behavior, and he was no poster boy for
the law-abiding, but the rights set out in the Constitution are designed to
protect all Americans, likeable and detestable. Another character ensnared in the "illegal enemy combatant" net
was Yaser Esam Hamdi. Hamdi was born in Baton Rouge, Louisiana, to Saudi Arabian
parents. In 2001, Hamdi was captured by the Afghan Northern Alliance and
subsequently handed over to the U.S. military. Hamdi was accused of being a
member of the Taliban regime, but he and his family argued that he was in
Afghanistan as an aid worker and had been erroneously detained. Undeterred by his parents' testimony, Hamdi was shipped to the
detention facility at Guantanamo Bay, Cuba. Later, he was transferred to a brig
in South Carolina. In June of 2002, a petition of habeas corpus was filed on
Hamdi's behalf by his father. The court ruled that the petition was proper and
granted Hamdi's father standing to act in the place of his son. The Fourth
Circuit Court of Appeals reversed that decision, however, ruling that the
"security interests" of the country outweighed Hamdi's right to file a habeas
corpus petition. Upon remand, the lower court denied the government's motion to
dismiss Hamdi's petition. The court requested evidence from the government that
would prove Hamdi's alliance with the Taliban and his designation as an
"unlawful enemy combatant." The government refused to comply with the court's order, and
appealed the request to the Fourth Circuit. Remarkably, the Court of Appeals
held that the president's power to make war (is this not a power delegated in
Article I, Section 8 of our Constitution exclusively to the Congress?)
prohibited a court from interfering in matters of national security. The
decision was appealed to the Supreme Court. Although the Supreme Court's opinion in Hamdi is diffuse
and complicated, eight of the nine justices agreed that the Constitution
proscribes the Executive Branch's attempt to hold indefinitely an American
citizen and to deny him the protections of the Bill of Rights with regard to the
due process of law. Could a completely innocent person also be ensnared? Yes. Khalid
al-Masri, a German citizen, was abducted in 2003 while he was on vacation, taken
to Afghanistan, and interrogated and tortured for five months before the CIA
figured out that they had abducted a completely innocent man who just happened
to have the same name as a wanted terrorist. (Why the CIA thought that a
well-known terrorist would have been traveling and vacationing using his own
name is anybody's guess.) Passage of the MCA was pushed by the current administration in a
bid to get congressional approval of all the illegal actions that they had
already been taking, obviously banking on the idea that if they could get
congressional approval, they would also get Supreme Court approval. Prognosis: Long-term
Suffering The Military Commissions Act of 2006 is an eradication of the
most basic protections of liberty enshrined for over 200 years in our sacred
Constitution. The all-encompassing powers granted to the president by this law
potentially forbid any man, woman, or child deemed an enemy of the
administration or its policies from seeking judicial relief from unlawful
imprisonment. Most terrifying of all, this law enthrones President Bush — and
his successors, whether Democrat or Republican — as the ultimate arbiters of
justice to those suspected of being America's enemies. You can only hope that
that person is not you. Those who fail to see the dire gravity of this legislation and
who prefer to take refuge in the naive partisan belief that President Bush and
the Republican Congress would never abuse this tremendous power, should
contemplate well the fact that both the White House and Congress may very
possibly change to Democrat control in the near future. Then will the supporters
of the Bush administration's grasp for power have a leg to stand on to even
protest, let alone stop, dictatorial exercise of the same power under a Democrat
regime run by Clinton, Feinstein, Boxer, Pelosi, Schumer, and the
like? This law, as well as other recently chronicled usurpations,
sacrifices the due process of law on the altar of absolutism. There can be but
one final obstacle to complete executive power — the people of the United States
of America. We must hold every member of Congress accountable who voted for this
unprecedented and unconscionable breach of our constitutional rule of law, and
we must seek out and support men and women determined to uphold the federal oath
of office and courageously defend the Constitution against all enemies — foreign
or domestic. If we do not do this, are we really better than the
terrorists? * To see how your U.S. representative and senators voted, see
House vote #39 and the Senate vote #39 in the "Conservative Index," pages
22-31. http://www.thenewamerican.com/artman/publish/article_4269.shtml ~~~ How
They Voted
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