1978 law closed loophole Bush cited to justify domestic spying

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[Zepps_News] 1978 law closed loophole Putsch cited to justify

domestic spying

 

 

 

 

http://www.truthout.org/docs_2005/121705A.shtml

 

*'78 Law Sought to Close Spy Loophole*

By David G. Savage

The Los Angeles Times

 

Saturday 17 December 2005

 

*/Civil libertarians say the latest revelations add to their

frustration with the Bush administration. " If we are a nation of

laws, then the president must be bound by the rule of law, " said

Lisa Graves, senior counsel at the ACLU in Washington. " This is

clearly in violation of FISA and a violation of the Constitution.

The president, no matter who he is, does not have the power to

decide which laws he will follow. " /*

 

Washington - In 1978, Congress thought it had closed a loophole in

the law when it passed the Foreign Intelligence Surveillance Act. The

loophole concerned secret spying authorized by the president on grounds

of national security.

 

On Friday, many in Washington were surprised to learn that despite

the 1978 law, President Bush and his advisors had claimed the power to

authorize secret spying within the United States.

 

The New York Times reported that Bush had authorized the National

Security Agency to listen in on the phone calls of thousands of people

in this country without getting permission from a court. Bush's lawyers

maintained that the president had the inherent authority as commander in

chief to protect national security through secret spying. The account

was confirmed by the Los Angeles Times.

 

" This sounds like an extraordinarily broad exemption to FISA, " said

Washington lawyer Kenneth C. Bass III, who worked on the 1978 law as an

aide to President Carter. " This is well beyond the pale of what was

anticipated back then. "

 

Other lawyers who helped write the law thought it prohibited what

Bush apparently authorized.

 

" FISA was the sole authority for wiretapping " on national security

grounds, said Jerry Berman, who worked on the 1978 law as a counsel to

the American Civil Liberties Union. " The statute would be a futile

exercise if the president retained the authority to conduct these

wiretaps on his own. "

 

As a general matter, the Constitution forbids the government from

spying on Americans - including by listening in on their phone calls -

without a court's permission. The 4th Amendment says police or federal

agents must show a magistrate some evidence of wrongdoing before they

can obtain a warrant that authorizes them to listen in on phone calls.

 

However, through most of the 20th century, presidents maintained

they had the power to protect the nation's security by, for example,

spying on foreign agents who were operating in the United States. No one

questioned that US intelligence agencies could tap the phones of Soviet

agents.

 

In the mid-1970s, Congress learned the White House had abused this

power: Presidents, both Democratic and Republican, had authorized the

FBI to tap the phones of hundreds of political activists and

celebrities, including Martin Luther King Jr. and Vietnam War protesters.

 

Those revelations led to the 1978 law. One provision says it is a

crime for anyone to " intentionally engage in electronic surveillance "

except as authorized by law or a court order. However, " the president,

through the attorney general, may authorize electronic surveillance ...

to acquire foreign intelligence information " if officials obtain a

warrant from a special court that operates inside the Justice Department.

 

The judges of what is known as the FISA court may issue warrants for

wiretaps when the government has evidence that a person is working for a

" foreign power " or is involved in terrorism. This is not a high

standard, legal experts say. The judges issue warrants virtually

whenever the government applies for one, the Justice Department has said

in the past.

 

However, the law requires evidence that the wiretap target has links

to a foreign government or a terrorist group. It would not permit, for

example, the wiretaps of hundreds of Muslim men in the United States

simply because they telephoned the Middle East.

 

Top intelligence officials have in the past assured Congress that

they follow the law and do not engage in secret spying. " There is a

rigorous regime of checks and balances which we - the CIA, the NSA and

the FBI - scrupulously adhere to whenever conversations of US persons

are involved. We do not collect [information] against US persons unless

they are agents of a foreign power, " then-CIA Director George J. Tenet

told a House committee five years ago.

 

After Sept. 11, Bush said he would use all the powers of the

presidency to prevent another terrorist attack in the United States. His

advisors feared then that secret Al Qaeda cells existed within the

country and that further attacks were planned.

 

Administration officials refused Friday to discuss the National

Security Agency spying program or even to confirm its existence.

 

Some former officials say it is important to put the program into

the context of the time.

 

" I wasn't aware of this when I was at the White House, but there was

a tremendous sense of urgency to take whatever steps were necessary to

detect and disrupt any cells that were out there, " said Bradford A.

Berenson, a White House lawyer during Bush's first term. " The president

was not going to let it be said that he had not used all the powers at

his disposal to protect the American people. "

 

This would not be the first time Bush has claimed that his power as

commander in chief can override the law.

 

The Constitution forbids the government from arresting and holding

people in the United States without " due process of law. " Nonetheless,

Bush has claimed the power as commander in chief to designate people as

" enemy combatants " and imprison them indefinitely without filing charges.

 

In 2002, US citizen Jose Padilla was arrested at Chicago's O'Hare

International Airport and held in military brigs for nearly three years.

Civil libertarians said that was unconstitutional. His case had been

heading toward the Supreme Court; the administration recently brought

criminal charges against him, thereby thwarting a clear ruling on the

issue.

 

In the past, Congress has ratified treaties pledging that the United

States and its agents will not use torture or inhumane treatment against

captives. Once ratified, treaties become part of American law, according

to the Constitution.

 

But before this week, the White House maintained that the laws and

treaties did not bind the president in handling terrorist leaders. White

House lawyers wrote memos that appeared to justify the use of extreme

measures - which critics called torture - in interrogating suspected

terrorists.

 

Civil libertarians say the latest revelations add to their

frustration with the Bush administration. " If we are a nation of laws,

then the president must be bound by the rule of law, " said Lisa Graves,

senior counsel at the ACLU in Washington. " This is clearly in violation

of FISA and a violation of the Constitution. The president, no matter

who he is, does not have the power to decide which laws he will follow.

 

 

 

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