Saturday, December 31, 2005

Meanwhile.. back at the ranch...

"President Uses a Quiet Vacation to Prepare His Agenda for 2006"

Ummm... can you remind me again what his agenda was for 2005?

CRAWFORD, Tex., Dec. 31 - For six days, President Bush has stayed in nearly complete isolation on his ranch here - just mountain-biking and brush-clearing, the White House insisted daily, with only one guest, his mother-in-law, Jenna Welch. He never even ventured into this little town of about 700, not even to the cheeseburger joint that he often used as a political stage to show that he is in touch with his Texas neighbors.


Nothing like a staged cheeseburger to let us know that the President is in touch with the real world.

"Mr. Bush is scheduled to return to the White House earlier than usual from his break and start a campaign to set the tone for 2006 and, perhaps, the remainder of his presidency."


Sorry George, but your tone for 2006 and most likely the remainder of your presidency will be your efforts to stay in office and keep your inner circle out of jail. Good luck developing anything beyond that.

"As part of an ambitious strategy the White House has mapped out for the next four weeks, Mr. Bush has scheduled two major speeches - one on the economy on Friday in Chicago, another on Iraq - ahead of the State of the Union address, which is tentatively scheduled for Jan. 31."


Great! An Iraq speech. Why didn't he think of that before. That'll fix everything. And a speech on the economy. Is that the one where "Treasury secretary, John W. Snow, asked Congress on Thursday to raise the debt limit again, the fourth time"?

"By the time he appears before Congress, Mr. Bush's aides are hoping, two of the immediate challenges the president faces, the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr. and the permanent renewal of the Patriot Act, will be behind him."


Yeah... I don't think so. The House isn't even scheduled to return until the 31st (in an attempt to save Delay's leadership job) and Sen. Feingold has no intention of backing off from ensuring the Bill of Rights doesn't get trampled on again in the so-called Patriot Act. Alito? You might get away with that one... we'll see.

"It is a theme that his national security adviser, Stephen J. Hadley, struck in a little-noted speech on Dec. 20 in which he described the "common ground" that has emerged on training Iraqi forces and building a cohesive government there."


Would have been nice if you guys had thought of that one before going into Iraq and destroying civil society there.

"After his days of silence here, Mr. Bush on Saturday began to give the country a taste of the tone he has in mind. In his New Year's radio address he argued that in Iraq, American forces were "overcoming earlier setbacks" - another reference to errors in Iraq since the invasion that he was long loath to acknowledge. But he began to do so last month, a decision that White House officials now boast was the key to reversing the worst slide in his approval ratings since the beginning of his presidency."


Hey guys! Look at what a little honesty did for you. Why don't you try it out in greater measure and see if people start listening and believing what you have to say. I know for sure I can't believe whatever manure you come up with for the State of the Union speech. You might even consider having honesty as a standard policy. Radical idea I know but give it a whirl and see what happens.

"Mr. Bush also said that after the Dec. 15 Iraqi election, whose results are still in flux, the country was on its way to "an inclusive, unified and lasting democracy."


I sure hope so. That would be good for all of us. But, tell me, what about this little story... "Thousands of US troops to oversee Iraqi police"? Is that what you mean by "unified" and "inclusive?"

"Though Mr. Bush avoided the subject in his radio address, some of his advisers and national security officials say the White House has decided in the past two weeks to take a hard line with Congressional inquiries into Mr. Bush's secret authorization of wiretaps without warrants on suspects within the United States."


Take as hard a line as you want Mr. Bush. You broke the law and this story won't die. We the people overthrew a King once and we've no problems making sure that President's that grow too big for their britches get cut down to size. You have serious problems with the right, the left, the center, Congress, and the American people on this one... oh yeah, the Judge's aren't too happy with you either. There is also that little problem you are having with the Jose Padilla case too. Really boxed yourself in an unconstitutional corner on that one.

"Mr. Bush's aides and intelligence officials say they plan to refuse to offer more details in public on why they believe the technology of the program made it necessary to bypass the secret court designed to authorize wiretapping efforts inside the United States."


Which is a point that doesn't matter even if it is true. The law exists. You broke the law. You've been caught. Now you get investigated and charged. If the law was insufficient to the task it was your obligation to go to Congress and get the law changed. You did not do that. You have failed to live up to your Constitutional obligation to ensure... that the Laws be faithfully executed.

"They are preparing to dispute vigorously and quite publicly the broader legal critique, offered by some Democrats, the American Civil Liberties Union and some Republicans, that the president acted beyond his authority as commander in chief."


Excellent. Because you did act beyond your authority as commander in chief. John C. Yoo's argument that you had such authority is utter hogwash and an incredibly flimsy argument.

This is your agenda for 2006. Defending yourself from impeachment.

"In interviews over the past week, Mr. Bush's aides said they were convinced that Mr. Bush's decision to admit that he authorized the program - and then to say little about its details - would be enough to keep an increasingly fractious Republican majority in line."


Are you guys really that divorced from reality?

"Some of Mr. Bush's advisers say they believe that revolt was partly the result of weak leadership in the House, where Representative Tom DeLay has stepped down from his leadership position while under indictment, and in the Senate, where Mr. Bush was abandoned by leaders of his own party on the McCain amendment."


Hope you aren't counting on that getting any better. Congress has it's own problems. In 2006 several of them have concerns about getting indicted themselves and all of them have concerns about how you, your war, your trampling on the Bill of Rights, and the rising cost of gas and living and how that affects their chances of getting re-elected. Your wants and needs aren't even secondary to these folks this year.

And Jack Abramoff hasn't even started talking yet.

Oh, and by the way, wasn't that Senate vote something like 90-9? That sounds like a lot more then your weak and ineffectual hand-picked leader Sen. Frist abandoning you.

"The notion that Bush could or should unveil a new domestic agenda at the State of the Union speech is really ridiculous," Mr. Kristol said. "He has to play the cards he has been dealt and play a winning hand with those cards" on issues including the war in Iraq, the linked debate over the Patriot Act and wiretapping at home, and the Alito nomination.


While Bill Kristol is often full of horse hockey and always has a conman, uh, conservative, spin, he also tells it like it is sometimes and this is one of them. Bush won't have anymore success in defining or controlling his agenda in 2006 then he did in 2005. This year will be all about Democratic challenges in the House and Senate and Republicans under investigation, indictment, and pressure in courts, Congressional investigations, traditional media, the blogosphere, and the court of public opinion.

Our democracy may be reeling and damaged but it is still in charge. We the people have the power and lots of us are beginning to remember to flex it. The Constitution is the law of the land. Not Dick Cheney, not George Bush, and not the indicted Tom "I am the Federal Government" Delay.

Bush administration on the run

UPDATE:
Firedoglake and SCOTUSblog have more.

An article today in the New York Times, "Padilla Lawyers Urge Supreme Court to Block Transfer," shows the Bush administration on the run before the U.S. Fourth Circuit Appeal Court and the Supreme Court. A preceding article, "Supreme Court Is Asked to Rule on Terror Trial," provides more information on the pending status of this case.

Jose Padilla, an American Citizen, incarcerated by Bush's government since May 8, 2002, was declared an "enemy combatant" in June 2002. This dubious extra-legal status was created by the Bush administration with claims of sole discretionary authority of the President outside of American law, international law, the Geneva Conventions, and the clear legal guidelines set forth in the Constitution (see Article III, and the 4th, 5th, 6th, and 8th amendments.

An excellent compilation of the Padilla case (Bush administration v. All rights of all American Citizens) can be found at Human Rights First.

Key points are:
1. On December 18, 2003, the U.S. Court of Appeals for the Second Circuit held that the executive branch does not have the constitutional or statutory authority to indefinitely detain U.S. citizens seized on American soil.

2. Rather than release Padilla, the government appealed the case to the Supreme Court.

3. On June 28, 2004, the Supreme Court shirked answering the question of Presidential authority by ruling on narrow technical grounds that the case of Jose Padilla should be heard in a federal court in South Carolina, rather than by a federal court in New York.

4. During the same month, the Supreme Court also ruled in Hamdi v. Rumsfeld that a U.S. citizen captured in Afghanistan and labeled an "enemy combatant" could not be held indefinitely at a U.S. military prison without the assistance of a lawyer, and without an opportunity to contest the allegations against him before a neutral arbiter.

5. In February 2005, the federal district court in South Carolina held that the Government could not hold Padilla indefinitely without access to a court, and must charge or release him.

6. But in September 2005 the U.S. Court of Appeals for the Fourth Circuit overturned the district court, ruling that Congress had authorized his detention.

7. On November 22, 2005, after holding Padilla for more than three years without due process, the federal government indicted him on charges of conspiring to kidnap, murder, and injure people abroad. No charges were made relating to terrorist plots within the United States.

The Times article of Dec. 29, states:

"The administration, in declaring him an enemy combatant and jailing him in a military brig without access to a lawyer, initially accused him of plotting with Al Qaeda to detonate a radiological "dirty bomb" on American streets and plotting other attacks within the United States.

But in bringing criminal charges for the first time against Mr. Padilla last month, the administration reversed course and accused him of working to support violent jihad causes in Afghanistan and elsewhere overseas from 1993 through 2001. The criminal charges make no mention of the dirty-bomb plot or other American attacks."


The Times reporting on the recent ruling of the Fourth Circuit Court of Appeals:

"In last week's ruling, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., refused to allow Mr. Padilla to be transferred to civilian custody to face charges in Miami that he had conspired with Al Qaeda to commit terrorist attacks abroad.

The appeals court said that the Bush administration, in charging Mr. Padilla in criminal court in November after jailing him for more than three and a half years as an enemy combatant without charges, gave the appearance of trying to manipulate the court system to prevent the Supreme Court from hearing the case. And it warned that the maneuvering could harm the administration's credibility in the courts."


There are reasons why we have rules and procedures in our legal system. Following these rules and procedure guarantees the right to a fair trial so that innocent people are not railroaded into jail and guilty people aren't set free by the illegal actions of the government and prosecutors.

The Bush administration has almost guaranteed that Jose Padilla will go free due to their circumvention of the rules, the law, and the Constitution. They have boxed themselves into a corner. It seems likely at this point that the courts will rule that the President does not have the power to designate American citizens as enemy combatants (see the lists of organizations across the political spectrum submitting Amicus briefs in support of Padilla at the Human Rights First website).

In an attempt to keep the Supreme Court from ruling on this issue they want to move Padilla to the civilian court system. Should this happen then it seems to me that his lawyers will immediately move for dismissal of the case on the grounds that his 6th amendment right to a speedy trial and 8th amendment right to not suffer cruel or unusual punishment (3 years in a military brig without even being charged) have been violated.

If indeed Jose Padilla joined with al Queda and took action against the United States then The Constitution provides for the proper course of action regarding citizens that take action against the United States. Article III, section 3 states:

"Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."


The Bush administrations power grab has endangered the nation. If Jose Padilla did in fact join with Al Qaeda then the administration has completely bungled his case. Jose Padilla should go free. This administration is rendered incompetent by their own hubris and attempts at absolute power.

The good news is that this case is showing the strength of our democracy. Slowly perhaps, but it is showing none the less. The Appeals Court and likely soon the Supreme Court will show that it is The Constitution of the United States of America that is the law of the land and not George W. Bush and Dick Cheney.

Friday, December 30, 2005

Prosecutors make Abramoff an offer he can't refuse

Update: link from DailyKos comments to new WaPo article: An Extensive Web of Financial Ties

AP is now reporting "Lobbyist, prosecutors said close to deal" that may be finalized as early as Tuesday.

Yesterday in "The Fast Rise and Steep Fall of Jack Abramoff" the Washington Post reported that Abramoff likened himself Michael Corleone of The Godfather. But it appears this might be a horse of a different color and that prosecutors are making Abramoff an offer he can't refuse.

Jack Abramoff is up to his eyeballs in scandals and court cases. The wide ranging investigation into his bribing of congressmen may be the least of his problems. The Post also provides an outline of:

Abramoff's Career
1958
Jack Abramoff is born in Atlantic City. Family moves to California and he grows up in Beverly Hills.
1981
Abramoff graduates from Brandeis University, comes to Washington and runs for national chairman of the College Republicans, where he forges lifelong bonds with Ralph Reed, Grover Norquist and Adam Kidan.
1985
Abramoff and Norquist take charge of Citizens for America, conservative advocacy group created by drugstore magnate Lewis E. Lehrman. They are asked to leave after a dispute about finances.
1986
Abramoff graduates from Georgetown law school, joins brother in film company and goes to Africa to work on "Red Scorpion," a Cold War thriller released in 1989.
1994
GOP wins control of House for the first time in 40 years. Abramoff joins lobbying firm of Preston Gates & Ellis. He begins lobbying for the Commonwealth of the Northern Mariana Islands and quickly strikes up a political relationship with Rep. Tom DeLay (R-Texas).
1995
Abramoff signs up the Mississippi Band of Choctaw Indians as a client, the first casino-rich tribe he solicits.
1997
Abramoff arranges for lawmakers and aides to take trips to the Marianas. On one such trip, DeLay calls the lobbyist "one of my closest and dearest friends."
1999
Abramoff uses tribal money to hire Ralph Reed to run anti-gambling campaigns in the South to discourage competition for the tribes' casinos.
2000
Abramoff arranges more lawmaker trips. They include week-long visit to England and Scotland in May with DeLay, his wife and two aides, and a June trip for DeLay aides to golf's U.S. Open aboard corporate jet belonging to SunCruz Casinos. Abramoff and partners buy SunCruz in the fall.
2001
Abramoff switches lobbying firms to Greenberg Traurig in January. He leases corporate jet to ferry congressional staffers to the Super Bowl in Tampa. He and Michael Scanlon form partnership they call "Gimme Five" to share extraordinary fees charged to tribal clients. In February, the seller of SunCruz, Konstantinos "Gus" Boulis, is shot to death gangland style in Fort Lauderdale, Fla.
2002
Abramoff and Scanlon are collecting tens of millions of dollars in fees from Indian tribes. In one case, they quietly work with Ralph Reed to help Texas shut down a tribe's casino, then persuade the tribe to pay $4.2 million to try to get Congress to reopen it.
2003
Internal audit by the Louisiana Coushatta tribe finds that tribe spent $18 million in one year on lobbyists and lawyers, mostly to Abramoff and Scanlon.
2004
The Washington Post reports in February that Abramoff and Scanlon have received at least $45 million from tribes with casinos. Abramoff quits Greenberg a week later. Shortly thereafter, Sen. John McCain (R-Ariz.) begins investigating Abramoff's Indian activities.
2005
August:
Abramoff and Kidan are indicted on fraud and conspiracy charges in Florida in connection with their purchase of SunCruz.
September:
Three men, including two associates of Kidan's, are indicted on murder and conspiracy charges in the killing of former SunCruz owner Boulis.
October:
Former Abramoff associate David H. Safavian, head of the Office of Federal Procurement Policy and the White House Office of Management and Budget, is indicted on charges of lying to federal investigators in the corruption investigation.
November:
Scanlon pleads guilty to conspiring to bribe a congressman and other public officials and agrees to pay back more than $19 million he fraudulently charged Indian tribal clients.
December:
Kidan pleads guilty in the SunCruz case. Both Scanlon and Kidan are expected to testify against Abramoff and will cooperate in the investigation of at least half a dozen lawmakers including Rep. Robert W. Ney (R-Ohio).

Ummm... mob hitmen and murder on casino deals? Perhaps Mr. Abramoff and his associates took that whole Corleone thing a little too far.

As these graphics and the various reports show as many as 20 congressmen and their staffs could be implicated in various parts of the Abramoff crime family. His two primary associates have already turned and Abramoff appears to be next. 20 Congressmen and their staffs. That amounts to one twentieth of the House of Representatives. Is your Representative involved? Have they taken money from one of Abramoff's firms, Greenberg, Traurig, et al, Preston, Gates, et al, or been involved in legislating for one of their clients?

And, of course, at the top of the food chain (or is that bottom of the human chain) we use the likes of Republican heavy hitters Tom Delay (wait a minute... isn't he already indicted on other charges), Ralph Reed (wait a minute... casino's, murder, bribery and mr. family values?), John Doolittle (wait a minute... isn't he involved in the Cunningham scandal - whoops looks like someone is tracking his involvement here as well), and Grover Norquist (how's that bathtub drowning thing going anyhow), and Speaker of the House, second in line to the Presidency, Dennis Hastert.

The list of Republican corruption goes on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and....


(oh... and for those republican talking points about equal involvement of Democrats and republicans in this... "The Abramoff scandal is an entirely GOP owned and operated affair".

Thursday, December 29, 2005

When will reporters learn that Republicans lie:

Atrios, Americablog, and Think Progress all ask the question...

When will reporters learn that Republicans lie:

The answer of course is well known in New York's 20th Congressional District. The "spokesperson" in question is one Kevin "Maddog" Madden (read snippet down the page on that link).

Young Mr. Madden learned the ropes as spokesman for Rep. John Sweeney, he of the 2000 Brooks Brothers riot fame. Madden went on from there to work as northeast spokesman for the bush/cheney campaign and then into the DOJ where he worked briefly for Abu Gonzales before moving on to lying for the indicted Tom Delay. Madden got his start with a thug and worked his way up through the various criminal elements until he reached the pinnacle of Tom Delay.

Thankfully, we have Kirsten Gillibrand running for Congress against Sweeney in New York-20. Contributions gratefully accepted in our efforts to rid ourselves, the state, and the nations politics of men like Sweeney.

This nation will be well rid of the John Sweeney's of the world. Interesting article in yesterday’s Albany Times Union touting another “rising star” in the New York Rethuglican party and the great qualities of “bare knuckles” and adversarial politics that he plays.

He’ll fit right in with thugs like Sweeney.

For more about our up and coming boy Kevin "Maddog" Madden:

The Roll Call article doesn't appear to be available anymore but here is a snippet:

New Blood in New York Office
By John McArdle
Roll Call Staff
September 22, 2003

Since his return from recess, Rep. John Sweeney (R-N.Y.) has been working with a new director of communications, Demetrios Karoutsos. Karoutsos replaces Kevin Madden, who has moved on to work as spokesman for President Bush’s re-election team.

New York Daily News - Daily Dish & Gossip had a little bit about Madden joining the Bush/Cheney team:

Bush has a new voice

As he puts his 2004 campaign team together, President Bush has tapped a New Yorker to serve as his Northeast press secretary. Kevin Madden, now the Washington flack for upstate GOP Rep. John Sweeney, will take over the post in a couple of weeks, The News' Joe Mahoney reports.

Sweeney is the New Yorker with perhaps the closest ties to the Bushies, as evidenced by the fact his former chief of staff, Brad Card, is the brother of White House chief of staff Andrew Card.

Bush has been known to call Sweeney "Congressman Kickass," apparently because Sweeney played a big role in impeding the Dem push for a Florida recount by rallying Republican opposition in the Sunshine State.

An Irish-American write-up on Madden. As a part-Irish-American I am ashamed of guys like these.

DOJ press release: #071: 02-18-05 KEVIN MADDEN NAMED DEPUTY DIRECTOR AND PRESS SECRETARY IN THE OFFICE OF PUBLIC AFFAIRS

The good old days for Delay and Madden: Majority Leader : Tom Delay

And another nice send-up for Madden and Delay: HoustonChronicle.com - New DeLay spokesman at ease in a battle zone

Since then it is all defending crime: kevin madden tom delay - Google Search

And as I said... Contributions for Kirsten Gillibrand's campaign to rid us of John Sweeney gratefully accepted.

Saturday, December 24, 2005

That pesky little James Madison

Continuing with Federalist #41, General View of the Powers Conferred by The Constitution, we quickly find more of the genius of our founders, their anticipation of the issues we face today, and the fact that they faced them in the same or similar forms in their day.

Federalist #41 deals with military powers of the federal government. A great deal of it argues the need to provide for a standing army and a navy. These aren't so much issues today but some of the argument Madison, writing as Publius, used is very interesting in how he states a clear case for the need for a strong national defense but never without talking about the dangers inherent in such powers and the need for a Constitutional defense against their potential abuses by "a perfidious government against our liberties."

A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defense and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter.


"A bad cause seldom fails to betray itself." I have long said that this administration would eventually bring itself down. Such hubris as they exhibit always does. Let me see if I can re-work this paragraph just a little....

A bad cause seldom fails to betray itself. Of this truth, the management of the current federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to ignore on that side the prudent distrust entertained by the people, of unchecked executive power. The attempt has awakened fully the public attention to that important subject; and is leading to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against external and internal dangers, but that the Constitution and subsequent law are fully adequate to the national defense and the preservation of the Union, saving America from as many standing armies, terrorist organizations, domestic threats, executive abuses, and from such a progressive augmentation, of these establishments in each, without rendering them burdensome to the properties nor ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter.


Happily in Madison's day the oceans which separate us from the majority of the rest of the world provided a necessary ingredient for our defense as he shows in his defense of the need for a navy.

The batteries most capable of repelling foreign enterprizes on our safety, are happily such as never can be turned by a perfidious government against our liberties.


Sadly, in our day this is no longer true. No one among us is arguing that we do not need spy agencies or wiretaps or the FBI or border security in order to be safe and secure in our nation. Today more than ever the need to provide for the common defense and general welfare involves powers that can be readily and easily be "turned by a perfidious government against our liberties." It is more important now then ever that such powers be checked and appropriately be guarded against abuse while at the same time be allowed in order to provide for that common defense.

Madison goes on to repel an attack on the ability of Congress to pay for the national defense. While the argument he makes is directly in relation to this power it is a complete and total refutation of the Bush administrations argument of unlimited power based on the "Commander in Chief" language in The Constitution.

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.


The Bush administration argument basically boils down to a claim that the President has "an unlimited commission to exercise every power which may be alleged to be necessary for the common defense" based upon his responsibility to defend the nation as stated in his oath of office (Article II, Section 1) and the powers assigned to him in the Commander in Chief clause (Article II, Section 2):

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States."


The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States


Let's see how Mr. Madison addresses such "misconstructions"...

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."


Similarly, had no other enumeration or definition of the power of the President been found in the Constitution, nor had certain parts of this power been enumerated to the Congress in Article I, nor any limits placed on it's application domestically by the Bill of Rights, then the claims of the administration might have some color to it; though it would be difficult to find a reason for so clearly defined and limited a statement of authority to be used to describe an authority so absolute and overriding of all others as this administration claims for itself.

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?


Or, in the case of the Commander in Chief clause, no more than a comma.

Madison continues in a scathing refutation of an argument based on such abuse of common constructs of language:

If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.


"Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars."

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States


A general phrase, "Commander in Chief", qualified by a following recital of particulars, "of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States".

There is no language contained in there that even hints at overriding the 4th, 5th, 6th, 8th, 9th, or 10th amendments as this administration would have us believe. Quite the contrary, the expansive language of the 9th and 10th amendments makes clear that such powers and rights as are not enumerated in The Constitution itself are reserved to the People of the United States.

As Madison states, "But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity...."

And as Madison opens his complete destruction of his opposition...

"A bad cause seldom fails to betray itself."

So too, he closes...

"How difficult it is for error to escape its own condemnation!

PUBLIUS

Friday, December 23, 2005

The Federalist No. 41 - General View of the Powers Conferred by The Constitution

The Federalist No. 41
General View of the Powers Conferred by The Constitution
Independent Journal
Saturday, January 19, 1788
[James Madison]

To the People of the State of New York:
THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches.


In the formative days of our nation some very wise and powerful men sat down together and hammered out an agreement on the structure of government and sharing of power that was to follow. This effort was completely new territory. These men did not have the luxury of sitting in an ivory tower somewhere working out theoretical models of democracy and government either. They had the very real concerns of their own states and a new nation pressing on them at the time as well as the factionalism, personal ambitions, desires, and foibles of men to contend with.

Under the first view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?



In the very basic levels of understanding of the new form of government they were creating they considered the distribution of power and constraints on powers to be foremost concerns. They were concerned about:

1. the sum or quantity of power which it vests in the government
2. the restraints imposed on the States
3. the distribution of power among branches of government
4. whether powers of the federal government were unnecessary or improper
5. whether the entire mass of them be dangerous to the jurisdiction of the States

Their very reasonable concerns were about the proper allocation of power to meet the needs of a nation and the controls or restraints upon that power to prevent usurpation and maintain balance among the competing interests of people, states, and nation.

Is the aggregate power of the general government greater than ought to have been vested in it? This is the first question.


The First question then is have we created a monster? Is the Federal government too strong? In other papers we see the same question applied to the Executive branch.

It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end.


It seems here, as it seems in the prelude to several of the other papers, that the founders had to deal with opposition that was less than candid in their arguments. Is there nothing new under the sun?

Madison argues here that it is necessary that the government be vested with particular powers in order to perform it's duties. Federalist #41 deals mainly with military powers. In today's debate over NSA, wiretapping, spying, and FISA the Bush administration apologists argue as Vice President Dick Cheney has stated The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy...."

Few there are that would argue that the federal government and the President should be constrained from performing their duties to protect and defend The Constitution of the United States of America and the people of this nation. The argument today is that defending The Constitution means obeying the law and The Constitution itself. The right wing noise machine is less than candid in it's arguments that somehow obeying the FISA law and the 4th amendment would stop the government from being able to properly defend the government. A candid, open, and honest discussion about what constitutes the "necessary means of attaining a necessary end" is not too much to ask, is it?

They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made.


And today we have the willful and ignorant opposite. They chose to ignore the obvious abuses and be unwilling to obey the law due to some minor inconveniences such as judicial review and congressional oversight. Review and oversight that can by law be done after the fact and do not in any way delay or restrain the governments ability to do it's job.

This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking:


See previous paragraph on the effects of the right wing noise machine. I think of the line from the movie The American President where Michael Douglas talks about these being serious times requiring serious people. I am thankful that we had such men during our formation as a nation. We seem to have so few in the halls of power (both in an out of government) today.

These are serious times and we as a nation need to be able to have a serious conversation about the balancing and distribution of power and rights between people, states, and federal government in order to provide the "necessary means of attaining a necessary end" in matters of war, terrorism, poverty, and natural disasters. Sadly, what we have are boundless fields of rhetoric, declamation, inflamed, unthinking passions, and the purposeful incitement of prejudices of the misthinking.

but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good;


This is a conversation we on the left often dance around but rarely have in an open and candid manner. We bitch at each other but how often are we capable of putting emotion and stubbornness aside in order to honestly determine the fine balance point of the greater good in relation to the desire of the perfect and the avoidance of the greater evil? How often does that conversation instead focus on charges and claims of a black and white choice between the lesser evil and the perfect good? So much of life is a constantly moving balance point. Can we put aside claims and counter claims long enough to find that common ground as close to the greater good as we can get it without losing it altogether?


and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.


A strong argument for checks and balances, for oversight and review. No branch, no elected official, has carte blanche to do whatever they themselves think is prudent and necessary. Every step of the way in creating The Constitution and creating this nation our founders discussed the absolute requirement for safeguards against the abuse of power.

Thursday, December 22, 2005

Returning to the root

Returning to the root

Be completely empty.
Be perfectly serene.
The ten thousand things arise together;
in their arising is their return.
Now they flower,
and flowering
sink homeward,
returning to the root.

The return to the root
is peace.
Peace: to accept what must be,
to know what endures.
In that knowledge is wisdom.
Without it, ruin, disorder.

To know what endures
is to be openhearted,
magnanimous,
regal,
blessed,
following the Tao,
the way that endures forever.
The body comes to its ending,
but there is nothing to fear.

Tao Te Ching #16 -
Ursula K. LeGuin's rendition


Today we bury our brother Bruce Berheide. Bruce died of a heart attack Friday at the age of 58. Bruce spent 6 years in the United States Marine Corp including two tours in Vietnam. Upon his return he attended Beloit college where he met my sister.

Bruce helped found the Saratoga Springs chapter of Vietnam Veterans of America. Keenly interested in history and politics, he taught history for awhile and, as a member of the Democratic Party, he once ran for Public Safety commissioner in Saratoga Springs.

Bruce could always be found on the sidelines of his son and daughters various sports games. A loving father, husband, son, brother, he will be sorely missed. If there is one regret that I might have it is that perhaps I didn't tell him often enough how loved he was.

Rest in Peace my brother.

Monday, December 19, 2005

Federalist #67 and Recess Appointments

In researching the constitutional crisis precipitated by George Bush's claim to absolute power under the Commander in Chief language of the first clause of Article II, Section 2 of The Constitution of the United States of America:

Sect. 2. The President shall be Commander in Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States;


I began reading the Memorandum Opinion For The Deputy Counsel To The President regarding The President's Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them authored by John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel.

I have more reading to do on this and the United States Signal Intelligence Directive 18 but during my reading of Mr Yoo's opinion I noticed that he referenced Federalist #'s 23, 25, 70, 74, and 34 as part of the basis for his assumptions.

So I dusted off my copy of the Federalist papers (more reading to do there too). Federalist's # 41-46 deal with powers with 41 specifically focusing on Military Powers. Federalist's # 67 -77 however, deal with the Executive so I started there.

As I said, I've more research to do but I just wanted to throw out this little tidbit regarding Vacancies and Recess Appointments, as well as the Advice and Consent clause, as these are similar issues by which the Bush administration has attempted to establish absolute power in the Executive branch.

Article II, Section 2, states in part:

... and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise proved for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.


I had read opinions stating that this provision has long been misinterpreted as allowing the President to fill any vacancy during a Senate recess. That in fact this provision allows only for filling vacancies that occur during a recess. My own reading of this provision concurs... "Vacancies that may happen during the Recess"... is hard to interpret any other way.

In Federalist #67 Publius, Alexander Hamilton, clarifies this beyond a shadow of a doubt. This particular essay was written to dispel an accusation that the President would have the Power to appoint Senators of his chosing should a seat become vacant. Hamilton soundly destroys this piece of disinformation but also answers our question quite clearly in the process:

The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorise the President singly to make temporary appointments "during the recess of the Senate, by granting commissions which should expire at the end of their next session."


Two important intentions of the framers become abundantly clear here:

"The ordinary power of appointment is confided to the President and Senate jointly"

This statement by Hamilton makes clear that the "Advice and Consent" phrase is one of equality between Executive and Senate when it comes to the normal process of appointments. It is not nominate and rubber stamp but rather an equal power shared between the Senate and the Executive jointly.

"as vacancies might happen in their recess"

This statement alone makes clear that it refers to vacancies that occur while the Senate is already in recess. It is strengthened further still by the preceeding description of not wanting to require the Senate to remain in session permanently solely for the purpose of appointments and further still by the description of positions that need to be filled without delay. This clearly does not refer to vacancies that become open during Senate session and remain months later during a subsequent recess.

This is a problem going back many presidencies so it is not just Bush. However, it blows the Bush administrations argument of sole power of appointment and the ability to fill vacancies whenever they want. They will have to resort to forcing Supreme Court Justices to die and UN Amabassadors to resign during Senate recess in order to escape their Consitutional obligation to work jointly with the Senate in these matters.

The Executive Branch is not absolute and unchecked in it's power.

Peace be with you

Goodbye my brother... 'til we meet again.

Peace be with you

CHRISTOPHER DIAKOPOULOS, The Saratogian - 10/27/2005

SARATOGA SPRINGS -- Peace activists gathered Wednesday night with protest signs and candles in front of the U.S. Post Office on Broadway to mourn the more than 2,000 American soldiers who have died in the Iraq war.

The candlelight vigil and march to Congress Park was one of more than 600 events that were held across the nation, organized in part by the American Friends Service Committee and its 'Not One More Death, Not One More Dollar' campaign.

Local event organizer Amy Doern advised the solemn crowd of more than 100 that 'this is not a night for anger or political agenda; this is a night for sorrow.'

Doern said, 'We hear the sorrow for all who have died; we hear that sorrow and pause in silence and respect.'

...

Two-tour Vietnam War veteran Bruce Berheide said he regretted the lies he was told when he was 19, and he regrets the lies being told now at the age of 58.

'It's beyond belief that our country has made this mistake,' Berheide said.

Click to read more

Obituaries, Dec. 18, 2005
The Saratogian


Bruce Walter Berheide GANSEVOORT -- Bruce Walter Berheide of Traver Road died unexpectedly Friday, Dec. 16, 2005, at his home. He was 58. Born April 7, 1947, in Long Branch, N.J., he was son of James R. and Grace A. Berheide of Hondo, Texas. Raised in the San Francisco Bay area, Bruce was a graduate of San Leandro High School in San Leandro, Calif. In his senior year in high school, he joined the Naval Reserves.

Upon graduation, he enlisted in the U.S. Marine Corps, serving for six years. He was a veteran of the Vietnam conflict, having volunteered for two tours in Vietnam. He was honorably discharged in 1970 and entered Beloit College in Beloit, Wis., graduating in 1973. He considered his college experience one of the most enjoyable times in his life. It was there that he met his wife, Kate, whom he loved his entire life.

Bruce worked for major insurance companies for more than 20 years as a commercial underwriter and manager. He then enrolled in classes at Union College, where he earned a Master of Arts in teaching, and taught at several area schools, including Vanderheyden Hall and the Waterford-Halfmoon school district. His greatest joy was teaching.

He joined the Transportation Security Administration when it assumed responsibility for security at the nation's airports. At the time of his death, he was working in security for Saratoga Gaming and Raceway.

He was active in the Vietnam Veterans of America and keenly interested in history and politics. A member of the Democratic Party, he once ran for Public Safety commissioner in Saratoga Springs. Bruce was a big fan of his children's athletic achievements and always supported his son's and daughter's field hockey, ice hockey and lacrosse teams.

He is survived by his wife, Catherine (Kate) White Berheide, and his two children, Daniel W. Berheide and Sarah E. Berheide, the loves of his life. He is also survived by his parents, James R. and Grace A. Berheide, sister, Cheryl Mundy, and brother, Gary Berheide, all of Hondo, Texas.

Friends may call from 4 to 7 p.m. Wednesday, Dec. 21, 2005, at the William J. Burke & Sons/Bussing & Cunniff Funeral Homes, 628 North Broadway, Saratoga Springs (584-5373 or burkefuneralhome.com).

The Liturgy of the Word and Holy Eucharist will be celebrated at 10 a.m. Thursday at Bethesda Episcopal Church on Washington Street by the Rev. Thomas T. Parke, rector. Burial with military honors will follow at the Gerald B.H. Solomon Saratoga National Cemetery in Schuylerville.

Memorial donations may be made to Friends of Skidmore Athletics, North Hall, Skidmore College, 815 North Broadway, Saratoga Springs, NY 12866 (www.skidmore.edu), or Beloit College, External Affairs, 700 College St., Beloit, WI 53511 (www.beloit.edu).

Sunday, December 18, 2005

He shall take Care that the Laws be faithfully executed

Friday, December 16, the New York Times reported that President George W. Bush had signed an executive order authorizing the National Security Agency to eavesdrop on American citizens and others inside the United States of America. Mr. Bush's order is said to have authorized the NSA to engage in this domestic spying without previously obtaining court-approved warrants.

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 person or things to be seized. - Amendment IV to The Constitution of the United States of America

Saturday, December 17, as part of a radio address President Bush said the following:

"To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I'm also using constitutional authority vested in me as commander in chief."

The text of the "Authorization for Use of Military Force" passed on Sep. 18, 2001 is exactly what it sounds like. S.J. Res 23 after a bunch of Whereas's states:

Sec. 2. Authorization For Use Of United States Armed Forces.
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or person 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.--
(1) SPECIFIC STATUTORY AUTHORIZATION.--Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Power Resolution.


The War Powers Resolution of 1973 (H.J.Res 542) states, under a section titled "Purpose and Policy," in part:

Sec. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.


The United States Armed Forces consist of the Army, Marine Corps, Navy, Air Force, and Coast Guard.

Further the War Powers Resolution, in a section titled "Consultation," states:

Sec. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.


Section 8(a)(1) titled "Interpretation of Joint Resolution" referenced specifically in the authorization of 9/18/01 states:

Sec. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or


Section 5(b) under the title of "Congressional Action" also referenced in the authorization states:

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.


Seems an odd paragraph to use as defining reference material but I believe the implication is to use the definitions labeled 1, 2, and 3. By default it also brings into play the last sentence giving the President authority to extend deployment of US forces in hostilities seemingly indefintely as long as Congress is notified in writing of the Presidents determination and certification of the truth of the need (gee... now I'm writing like deez guyz).

There is much more to the War Powers Resolution but virtually every paragraph and clause makes reference to the US Armed Forces, foriegn soil, deployment overseas, etc.

Let's repeat what Bush said today:

"To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I'm also using constitutional authority vested in me as commander in chief."

Section 8 of The Constitution of the United States enumerates the Powers of Congress. In regard to military and related matters it says:

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


Article II of The Constitution outlines the Presidency. The last paragraph of section 1 is the well known Oath of office:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."


Section 2 enumerates the Powers of the Office of which only the following sentence is pertinent to his statement today:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;


Section 4 contains another important feature:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.


Mr. Bush's next statement in his radio address was:

"In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations."

Revisiting the 4th Amendment to The Constitution of the United States of America stated above:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searchjes 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.


Further, the very important Amendments IX and X read:

Amendment IX: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


And the all important 14th Amendment:

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


According to the database of U.S. Code at the Cornell Law School. Their website states "This version is generated from the most recent official version made available by the US House of Representatives."

In Chapter 36—Foreign Intelligence Surveillance, Subchapter I — Electronic Surveillance, § 1801. Definitions:

(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.


§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that— (A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—
(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain. The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.


§ 1805. Issuance of order (in part says)

(f) Emergency orders Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.


§ 1809. Criminal sanctions

(a) Prohibited activities A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.


§ 1811. Authorization during time of war

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.


So let's return to George Bush:

"Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

The New York Times report linked at the top of this page simply states that the NSA has been wiretapping conversations in an effort to catch terrorists. It is probably safe to assume that foreign nationals inside and outside of the United States engaged in activities intended to be deterimental to the United States expect the United States security, intelligence, police and defense agencies to be attempting to figure out who they are, what they are planning, where, when, how, and are intent in stopping them. The revelation that their phone conversations might be tapped is not likely not a surprise.

".. and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country."

**cough**Dick Cheney**Cough**Cough**Karl Rove**Cough**Cough**Scooter Libby**cough**

"As the 9/11 commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad... The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities."

"The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.

"During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.

"The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it."


Where to begin? The "Authorization for Use of Military Force", the "War Powers Resolution", and the Presidents authority as Commander in Chief all have to do with the armed services and foreign war. All but the Commander in Chief part are very specific and limited in their application to the use of the Armed Services in war. The NSA and other intelligence agencies are not branches of the United States Armed Forces. His opening justification is patently false.

Mr. Bush's order authorizing the NSA to engage in unwarrented wiretaps was plainly illegal under the Foreign Intelligence Surveillance Act. This act is very specific on who and when eavesdropping of all sorts can occur. It also provides all necessary provisions for reporting as well as provisions for emergency wiretaps. Importantly it also states in no uncertain terms that this procedures run through the Department of Justice and the Attorney General. The AG is to report to Congress and the Courts. The AG is to obtain appropriate authorizations from the courts. The AG is even allowed to authorize surveillance to go on without court approval for a period of 72 hours. Mr. Bush's statement of rationalization and justification talks about 45 day review by White House Counsel and the Attorney General rather than receit of authorization and appropriate warrents from the courts established to oversee such activities. He talks about review by the DOJ and the NSA's lawyers not Congress and the Courts. He talks about briefing Congressional Leaders and not the very specific reporting requirements of the Attorney General and oversight mechanisms of Congressional Intelligence Committees.

Mr. Bush's order was illegal and for any legitimate purpose it was also completely unnecessary. He states that he needed to do this in order to intercept communications between terrorist operatives. FISA is clear that any shred evidence linking a foreign national in the US with al Queda would have been approved as reason to eavesdrop. The only time FISA would have gotten in the way was when there was no supporting evidence whatsoever.

Is this where I post the 4th Amendment for a third time?

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 person or things to be seized.

Mr. Bush's order was illegal and unconstitutional.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

As if it's not enough... just out in the on-line version of today's New York Times we read that:

"The National Security Agency first began to conduct warrantless eavesdropping on telephone calls and e-mail messages between the United States and Afghanistan months before President Bush officially authorized a broader version of the agency's special domestic collection program, according to current and former government officials."

Further, that:

"The disclosure of the security agency's warrantless eavesdropping on calls between the United States and Afghanistan sheds light on the origins of the agency's larger surveillance activities, which officials say have included monitoring the communications of as many as 500 Americans and other people inside the United States without search warrants at any one time. Several current and former officials have said that they believe the security agency operation began virtually on the fly in the days after the Sept. 11 attacks.

"The early, narrow focus on communications in and out of Afghanistan reflected the ad hoc nature of the government's initial approach to counterterrorism policies in the days after Sept. 11 attacks."


The Bush administration has regularly claimed that everything changed after Sept. 11. Looks like that one was one of their rare truths. They used this spurious rational to assert the Presidents right to make up new laws and rules as they went along. They asserted the sole right of the President to determine the definition of what is an enemy combatent and the fate of these people. They asserted the President had the right to decide when existing law applied and when it didn't.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The many actions, justifications, and rationalizations of the Bush along these lines have all been illegal and unconstitutional. They do not get to make it up as they go along. If new law needs to be made, new powers enumerated it is the people through their representatives in congress that determine these matters. It is the Presidents role to "take Care that the Laws be faithfully executed...." - Last paragraph, section 3, Article II of The Constitution of the United States of America.

Tuesday, December 13, 2005

Howard Dean: The Life of the Party

When I saw a headline quoting Gov. Dean as saying that the US could not win in Iraq I knew that we would shortly be hearing all the usual noise and complaints about his latest "gaffe." Of course, I was reminded of his definition of a gaffe... "When you tell the truth and the people in Washington think you shouldn't have." Forgive me if I take a moment to smile about that. You see, I don't care much what the people in Washington think. Like most of you, I live in the real world and I am not afraid of nor shocked by the real truth. I'll let you in on a little secret... neither are my Republican and Independent neighbors. What we care about are whether the people in Washington are getting the job done or not. And let me tell you, Howard Dean, Chairman of the Democratic National Committee, is getting the job done.

From the moment he started asking the question "What I want to know is..." through the end if his Presidential campaign; from the formation of the Democracy for America PAC through his election as DNC Chair; from his promise to help rebuild the State Democratic Committees to his fulfilling that promise by having placed staff in every state by the end of the year; to this moment right now Gov Howard Dean has been in the trenches doing his part to take our country back.

What convinced me to back Gov. Dean for President was the common theme in his campaign to get people active and involved. As Gov. Dean says "Voting is the minimum requirement of citizenship in our democracy." When his campaign ended Gov. Dean immediately turned to his supporters and said, "Get involved locally. Find a candidate to support. Run for office yourself. Fill a seat on your local Democratic Committee."

Like so many others I looked around me and saw an obvious opening. My town hadn't had a Democratic Committee since before I'd moved here 8 years ago. I contacted people I met during the campaign and we formed a town committee. Last month we ran 2 candidates for Town Council and both of them won. Gov. Dean deserves the credit for those victories. Our story is not unique. It is happening all over the country with people inspired by Gov. Dean to get involved. He said "You have the power" and he meant it. And we do and the results of us exercising that power are beginning to show.

In the next town over another Dean meetup member put together a Democratic slate made up of Democrats and Republicans working together. They won both Town Council seats and the Town Supervisor position with a citizen oriented campaign against an entrenched Republican party.

In a county Judge election everyone, including Democratic Party leaders, said a Democrat could not win against the Republican party bosses hand picked crony. We picked Robert Jacon, a former Town Judge and local Dean supporter to run. Robert Jacon is now the new Criminal Court Judge in Rensselaer County, NY.

Gov. Dean's campaign featured the $100 Revolution. The idea was for 2 million average citizens to donate $100 each to match the $200 million of Bush's Pioneers and Rangers. Gov. Dean has turned the same idea Democracy Bonds and has had a major impact on the way that Democrats raise money. So far Gov. Dean's DNC has far exceeded it's previous fund raising efforts and cut deeply into the traditional Republican advantage.

In state after state, county after county, we see reinvigorated Democratic Committees driven by Dean supporters and members of the almost 600 local DFA groups spread out over all 50 states and now in three quarters of the congressional districts across the country. Members of DFA groups that are increasingly providing trained and experienced campaigners. State parties praise his help in raising sorely needed money and rebuild the party infrastructure. We hear candidate after candidate looking to Dean supporters and DFA groups for help in making their campaigns happen. While Howard Dean rebuilds the party from the top down his supporters are helping to rebuild it from the bottom up.

This past Nov. 2005 election cycle showed dramatic gains across the nation by Democrats. Often in places where Democrats never win. Even when we didn't win grassroots driven candidates like Christine Cegelis and Paul Hackett let the Republicans know that there are no safe seats for them anymore. Gov. Dean's 50 state strategy to challenge every Republican held seat is being brought to fruition by the people Gov. Dean continues to encourage to take an active role in our party. Here in New York we have serious challengers lining up for 7 of 9 Republican held Congressional seats. Most of them supported or encouraged by Dean and DFA members. I recently read in Connecticut a DLC Democrat came looking to Dean people for support.

Who is the life of the party? The answer is clear and it is Chairman Howard Dean and the Democratic voters that he has brought into the party. New life. New Blood. Fresh Horses. Big victories for Democrats.

Yet the media, Republicans and even some Democratic officials back away from Gov. Dean when he says things like "The US can't win the war in Iraq." Funny thing is once again what he said was actually correct. The US cannot win in Iraq, only the Iraqi's can win the war in Iraq. And everyone agrees with that. It is only when we allow ourselves to get caught in Republican frames that we have to back away from the truth. Everyone agrees that victory in Iraq will be achieved when the Iraqi people achieve it. Hillary Clinton says so. Nancy Pelosi and Harry Reid say so. Jack Murtha, Rahm Emanuel and Chuck Schumer agree. George Bush, Dick Cheney, Donald Rumsfeld and the United Nations agree! Even Joe Liebrman agrees. And most importantly the Iraqi people agree.

But that's my Howard. The life of the party. Directly because of Gov. Dean I am more encouraged then ever that we the Democratic Party will straighten out the mess the Republicans have made of America. I can see the evidence growing everyday of the rebuilding of our party and I can see in the desperate actions and words of the Republicans that they are afraid of you, afraid of us. Great Job Chairman Dean! Keep it up. We got your back.

Happy Holidays Howard!

Peace,

Andrew C. White
Stephentown Democratic Committee Chair
Rensselaer County Democratic Executive Committee Member
Democracy for the Hudson-Mohawk Region Organizer