Justice Department Memo Issued in 2001 Shows White House Regarded Its Anti-Terror Surveillance Program as 'Immune' From Fourth Amendment's Requirement for Court Warrants; New Book Reveals Heated Dissension in FBI and Justice Department Over Program's Legality
(Updated 5:30 a.m. Wednesday, April 9, 2008)
By Skeeter Sanders
For more than two years -- almost from the time The 'Skeeter Bites Report was launched -- this blogger has argued over and over and over again that the Bush administration's warrantless surveillance program against terrorism suspects was -- and is -- unconstitutional.
For more than two years, this blogger has repeatedly cited a unanimous 1972 U.S. Supreme Court decision and a 1975 U.S. Court of Appeals ruling in arguing that the program violates the Fourth Amendment's ban on unreasonable government searches and seizures by not obtaining court warrants for such surveillance.
Now, it turns out, the Bush administration knew all along that what it was doing was unconstitutional -- but concocted a rationale to claim that its warrantless anti-terror wiretapping was exempt from the Fourth Amendment's requirements.
A secret legal memorandum issued by the Justice Department in 2001 made precisely that argument. It was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time.
Gonzales, who would go on to become attorney general in 2005, asserted the president has the "inherent authority" to unilaterally order secret intercepts by the National Security Agency of telephone and e-mail exchanges between people inside the United States and their contacts abroad without first obtaining court warrants.
So controversial is the government’s eavesdropping program that it sparked heated legal concerns and silent protests inside the Bush administration within hours of its adoption in October 2001, according to a newly-published book.
In making its case to Congress for broadened spy powers, the White House has emphasized what it claimed were the firm legal foundations of the program conducted after the September 11, 2001 terrorist attacks -- and had even taken the unusual step of giving lawmakers access to classified presidential orders from 2001 and early legal opinions to try to show that the program was on sound legal footing from the start, the book says.
New York Times reporter Eric Lichtblau's new volume, Bush's Law: The Remaking of American Justice is based on interviews with scores of current and former Bush administration officials.
Memo's Existence Disclosed in Pentagon Response to ACLU Lawsuit
The memo, dated October 23, 2001, was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.
The memo remains secret, but its existence was disclosed last Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.
"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."
Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program, or TSP.
I'm a native of New York City who's called the Green Mountain state of Vermont home since the summer of 1994. A former freelance journalist, I'm a fiercely independent freethinker who's highly skeptical of authority figures -- especially when they're on the wrong side of the issues I care about. But I'm not afraid to also call into question those with whom I would usually be "on the same page" if and when they, too, are on the wrong side of the issues I care about.
Its apparent now that both parties have been on the take and crapping on the oath's that they took. The only thing they care about is the money that gets contributed to their warchests and the pay raises they can run through in the middle of the night.
The common man is well, Common. A step below them. They are a governing body and the masses are to be governed. The vote count can be scewed. The illegal activity can be classified. Citizens can be halled from their homes and held indefinately if the decider says that is what he wants and he doesn't have to answer to anyone.
by
Sleeper (1 articles, 1 quicklinks, 6 diaries, 272 comments)
on Monday, April 7, 2008 at 4:19:24 PM
...is why is John Yoo still at Berkeley? It's certain that he presents a danger were he part of Berkeley's International Program. I can see his Vita...currently on sabbatical as a convicted international war criminal awaiting execution.
by
Amanda Lang (21 articles, 13271 quicklinks, 418 diaries, 526 comments)
on Monday, April 7, 2008 at 5:13:41 PM
I see all these cretins, teaching, giving high-paid speeches, ignoring subpoenas, getting Medals of Freedom, offered positions in so-called prestigious newspapers and television news shows, but the one thing I haven't seen is anyone even threatening to hold any one of these God-damn bastards accountable!
So if you would be so kind as to name who might be doing this I will be more than happy to give them all my support.
by
Mr M (4 articles, 0 quicklinks, 8 diaries, 1171 comments)
on Monday, April 7, 2008 at 10:47:37 PM
Legal experts weighing in on the newly released Yoo memos think that the likelihood of international war crime charges against members of the Bush administration traveling abroad is a real possibility. My comment was meant to be ironic. International law program + Yoo = International War Crime Indictment. Americans will be outraged and indignant largely because they didn't have the balls to do it themselves. Introspection didn't make into the 21st century.
by
Amanda Lang (21 articles, 13271 quicklinks, 418 diaries, 526 comments)
on Tuesday, April 8, 2008 at 8:23:18 AM
Violation of the law is grounds for impeachment. Failure to carry out your job responsibilities is grounds for removal from office. Congress is responsible for holding the Executive Branch accountable and they aren't doing their job, period.
There is only one answer to Congressional failure to carry out their job function, vote every last one of those Congressional representatives out of office. They do not want to do their jobs, let them find new ones. Until the public speaks up and responds forcefully to this outrage, nothing will change.
I wrote to every member of the Kentucky delegation about impeachment aksing them to explain their lack of support for it and never got a single response from any of them. I wrote to every member of the House Judiciary Committee who has not supported impeachment and again did not receive a single response from any of them (Democrat or Republican) It is clear to me, these people have no business in Washington.
Most Congressional represenatives have no interest in doing their job and they feel political games and political advtantage trump accountability and oversight. Only if the public says, no to them will future Congressional representatives get the message -- accountability is JOB #1. No government, business or any other organization works if there is no accountability. If nothing else, that message has to be made the central focus of government reform.
by
Peter Wedlund (2 articles, 0 quicklinks, 0 diaries, 150 comments)
on Tuesday, April 8, 2008 at 10:27:59 AM
Forget Impeachment -- It's Time for Criminal Prosecution
With only nine months left in office, it's too late to impeach Bush, Cheney, et al. But now is the time for these bastards to be held accountable in a court of law.
There should be a grand jury empaneled to investigate these crimes by the Bush-Cheney regime and hand up indictments against them after they leave office in January -- when their executive immunity expires.
Sic U.S. Attorney Patrick Fitzgerald -- the same federal prosecutor who busted Scooter Libby -- on the whole kit and kaboodle of them. To see these bastards held accountable in a court of law will be far more satisfying to me than impeachment.
by
Skeeter Sanders (32 articles, 0 quicklinks, 0 diaries, 78 comments)
on Wednesday, April 9, 2008 at 1:25:37 AM
