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Thursday, January 26, 2006

New Evidence Reveals that Bush Knew He Was a Criminal

A remarkable turn of events has taken place this week in regards to the NSA Scandal. As you already know, the Bush administration decided to conduct warrantless wiretaps of American citizens in direct violation of the FISA Act. Bush had said, on video tape, that wiretaps require warrants.

On Monday of this week, former Bush NSA Director Gen. Michael Hayden said that Bush bypassed the FISA court because the probable cause standard was too high of a bar. Hayden admitted that the President's executive order allowed for wiretaps with less evidence than FISA did.

On Tuesday, a highly resourceful blogger named Glenn Greenwald revealed the results of an investigation he conducted into Hayden's claim. While the mainstream corporate press was content to simply file news reports based on press releases, Greenwald did some actual investigating and reporting. Greenwald discovered that in June 2002, Republican Senator Michael DeWine of Ohio introduced a bill that would have removed the 'high' probable cause standard that Hayden claimed provided the basis for Bush's executive order. Under the legislation, "reasonable suspicion" would have replaced "probable cause" for all wiretapping of non-US citizens.

So what did the Bush administration say in response to DeWine's bill? Did they hail it as a key, necessary part of the war on terror? No. Bush's lawyers told the Senate that the bill likely violated the Constitution and refused to support it:

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation.
. . .

It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

The bill never passed Congress. Although it wouldn't have removed all of the burdens that Bush claims FISA imposed -- because probable cause still would have applied to US citizens and the FISA court would need to dole out warrants based on reasonable suspicion -- the Bush administration's rejection of the bill reveals that they knew that warrantless wiretaps violated the law. It also refutes the argument that these warrantless wiretaps were necessary to fight terror because Bush claimed "the current standard has not posed an obstacle."

What's the 2006 Bush response? Pretty much ridiculous:

"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."

Translation: Bush didn't want the 2002 bill because he wanted higher constitutional safeguards. If you believe that, I've got a bridge to sell you. First, no one really knows what the so-called "reasonable basis" standard is and whether it really is "essentially" the same as probable cause. Only secret Bush lawyers ever got to create and analyze the standard. No judge ever approved of it. Second, a Gen. Hayden was the head of NSA, the agency conducting the spying, and claimed that the "probable cause" standard was indeed part of the reason for Bush's subversion of the FISA law.

This next line of argument should be assailed by the mainstream press:

Justice officials also said that even under a different standard, the process of obtaining a surveillance warrant would take longer than is necessary for the NSA to efficiently track suspected terrorists.

Translation: If the law makes it tricky to do our jobs, we get to ignore the law. That's like saying I can legally speed to work if I am late. More importantly, the law did not make it tricky for the NSA to efficiently track suspected terrorists. FISA allowed the NSA to begin spying without a warrant and gave them a 72 hour window to obtain one. 72 hours is more than enough time to get a warrant. The Bush administration has a massive cadre of Federalist Society lawyers eager to do anything they can for the President. Obtaining these warrants requires perhaps an hour or two of work at best. Surely the President can just order some overtime instead of flagrantly violating a law of Congress. This line of argument posits that the President can break the law anytime he pleases if it is more convienient. This is a dangerous line of reasoning that all Americans must reject. Republicans should not want future Democrat Presidents to have this kind of power and I certainly don't want an extremist like Bush having that type of power.

In conclusion, Greenwald's story revealed a few things. First, bloggers are doing more actual news reporting than the corporate media. The Washington Post and LA Times covered the story today, 2 days after Greenwald broke the story. Second, Gen. Hayden's claim that "probable cause" provided too high of a bar directly contradicts the DeWine bill's rejection by the White House. Third, even if Bush didn't like current FISA law -- if he felt that "probable cause" was too high of a bar or that the FISA court process was too long -- the President had no right to rewrite the law inside of his cold, hateful mind. The President is not above the law. Congress makes laws and the Courts interpret them; the President's duty is just to enforce the law. When you consider that potential Supreme Court Justice Samuel Alito favors giving the President even more powers under his insane "unitary executive" theory, it's a troubling time indeed.

Impeachment is the only option at this point. Bush has committed crimes that would potentially justify a prison sentence.

Comments on ""


Blogger Tran said ... (9:43 AM) : 

Excellent Post! For more interesting news on Bush's compassion for the rights of the American people, see my most recent post at White Man Ranting.

Here is to hoping that Bush and the corporate media get what they have coming.


Blogger Austin Millbarge said ... (7:50 PM) : 

Today Bush said:

President Bush defended warrentless spying saying “there’s no doubt in my mind it is legal.”

Well, I have no doubt in my mind: that we should be spying, we should, but it's a matter of how it's done.

I have no doubt in my mind: that spying can be conducted within the law and accrding to the Constitution. Madison wasn't a softy here.

I have no doubt in my mind: that the President's decision to sidestep the courts and Congress and the Constitution is both unnecessary--and not only not necessary--as it presently being conducted--but questionable.

I have no doubt in my mind: (given their less than stellar track record) there should be some doubts -- that the less questions Bush and Rove say we should be asking, the more questions should be asked.

I have no doubt in my mind: Buch/Rove are playing partisan politics with National Security, saying this is an issue of Democrats VS. Republicans (Rove doesn't mention John McCain who said he only recently learned about the program despite the White House saying it has briefed Congress many times about it; or Arlen Spector who has suggested the President might be impeached over this; or other conservatives who see it as a Constitional issue, not a partisan isssue.)

See "Spies Like Us" for more.

Austin Millbarge


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