Specter letter. Big problem for Bush!

Bernie talked about the DOD report last night and how they tried to get FISA ammended (kgo.com 10pm to 1am m-f). I found the following at Http:\\digitaldivide.
You know the Bush has problems when his own party ask questions like these.

From the digitaldivide website:
"(1) In interpreting whether Congress intended to amend the Foreign Intelligence Surveillance Act (FISA) by the September 14, 2001 Resolution (Resolution), would it be relevant on the issue of Congressional intent that the Administration did not specifically ask for an expansion for Executive powers under FISA? Was it because you thought you couldn’t get such an expansion as when you said: “That was not something that we could likely get?”

Specter is asking President Bush, through Attorney General Alberto Gonzalez, if he a) circumvented the intent of congress and b) if he understands that legislative intent (one of the criteria used by judges when interpreting and applying a law).

(2) If Congress had intended to amend FISA by the Resolution, wouldn’t Congress have specifically acted to as Congress did in passing the Patriot Act giving the Executive expanded powers and greater flexibility in using “roving” wiretaps?

Here Chairman Specter is asking a question many of us have been asking ourselves: Where does the SPECIFIC authority for the no-warrant surveillance and wiretapping exist in the statutes and resolutions passed by congress? Specter is an experienced member of congress and lawyer. He understands the provision of the Tenth Amendment of the Bill of Rights that reserves powers, rights and authority not specifically delineated by the Constitution to the states and the people. Specter knows that Constitutional authority to act is ordinarily required to be SPECIFIC and narrowly constructed

(3) In interpreting statutory construction on whether Congress intended to amend FISA by the Resolution, what is the impact of the rule of statutory construction that repeals or changes by implication are disfavored?

Again, the specific issue of narrow construction, interpretation and application of a law or resolution is being questioned. The principle of “stare decisis” (literally, “let the decision stand”), which is the principle that requires courts to rely upon precedents set by case law, requires that laws be narrowly defined and applied. In fact, laws that are not narrowly defined and constructed are often determined to be unconstitutional because they are overly broad, vague and unclear.

(4) In interpreting statutory construction on whether Congress intended to amend FISA by the Resolution, what would be the impact of the rule of statutory construction that specific statutory language, like that in FISA, trumps or takes precedence over more general pronouncements like those of the Resolution?

Specter is asking why the Bush administration has chosen to ignore the specific language of FISA in order to circumvent the specific limits delineated in FISA by broadly interpreting and applying a theory of legislative intent that is incongruous with established law and precedent. Indeed, this very same rule of statutory construction would apply to other pieces of legislation, including the Electronic Communications Privacy Act of 1986 (ECPA), 18 USC Section 119, §2515, 18 USC Section 119, §2516, and at least a dozen other laws.

(5) Why did the Executive not ask for the authority to conduct electronic surveillance when Congress passed the Patriot Act and was predisposed, to the maximum extent likely, to grant the Executive additional powers which the Executive thought necessary?

This question is actually an allegation that the Bush administration has made an unwarranted grab for powers and authority specifically granted to the Legislative Branch (Congress) by the Constitution. It is congress that has the authority to declare, fund and authorize military and intelligence actions under the provisions of the Constitution. The Executive Branch has the authority to command the military and set into motion specific military and intelligence operations (operational control), but like a Board of Directors for a corporation, congress is the only governmental body that can authorize such action. Congress is the civilian authority to which all military operations must answer to in all matters.

Article I, Section 8 of the Constitution states:
The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;….

- 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; …
- To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

This is part of the system of “checks and balances” that is essential to keeping us a “nation of laws, not of men.”

(6) Wasn’t President Carter’s signature on FISA in 1978, together with his signing statement, an explicit renunciation of any claim to inherent Executive authority under Article II of the Constitution to conduct warrantless domestic surveillance when the Act provided the exclusive procedures for such surveillance?

Mindful of the history of the Watergate scandal during the Nixon administration, congress specifically put restrictions on wiretapping and other forms of electronic surveillance (given the technology of the time). President Carter’s signing FISA into law was an overt recognition of the fundamental constitutional principle that the Executive Branch must answer to the Legislative Branch, and an admission that domestic spying was inherently a breach of constitutional rights. FISA set forth a precedent. Under US jurisprudence (the practice and application of law), precedents cannot ordinarily be overruled without a) an overwhelming compelling interest and b) due process. Specter is making the case that the Bush administration has violated the Fifth Amendment, which guarantees due process as a right.

(7) Why didn’t the President seek a warrant from the Foreign Intelligence Surveillance Court authorizing in advance the electronic surveillance in issue? (The FISA Court has the experience and authority to issue such a warrant. The FISA Court has a record of establishing its reliability for non-disclosure or leaking contrasted with concerns that disclosures to many members of Congress involved a high risk of disclosure or leaking. The FISA Court is at least reliable, if not more so, than the Executive Branch on avoiding disclosure or leaks.)

The FISA Court operates with discretion to consider matters of national security in secret and has a 27 year record of serving national security interests without compromising due process, civil liberties or acting in a slow fashion that would put the nation at risk. It has given wide latitude and discretion to law enforcement and cooperating intelligence agencies on matters of national security. Sen. Specter is asking why this court and process were insufficient and why this administration chose to ignore long-standing precedent, a successful record of effectiveness, due process and the law. He is also calling attention to the fact that the FISA Court has proven more reliable and trustworthy than any administration or member, committee or house of congress in matters of keeping national security secrets.

(8) Why did the Executive Branch not seek after-the-fact authorization from the FISA Court within the 72 hours as provided by the Act? At a minimum, shouldn’t the Executive have sought authorization from the FISA Court for law enforcement individuals to listen to a reduced number of conversations which were selected out from a larger number of conversations from the mechanical surveillance?

FISA has an emergency provision that allows law enforcement (not military or intelligence agencies) to conduct a limited amount of surveillance—up to 72 hours—and then seek a warrant after the fact. While we may not agree with this before-the-fact use of electronic surveillance, it does point out a significant flaw in the Bush administrations arguments in support of warrantless electronic surveillance. Given that there is such a before-the-fact authority to conduct a limit amount of surveillance under emergent conditions, how can the administration justify the end-run around the constitutional and statutory prohibitions against domestic surveillance, the use of military as law enforcement, and violation of rights and due process?

Specter also questions why the administration did not even seek to pay MINIMAL attention to the legal and logistical issues involved.

Mechanical surveillance, referenced by Specter, is the use of cameras, video equipment, mirrors, and other physical means of observing and recording events, conversations and documentation. We now live in a society where such surveillance is rampant and usually installed in public places or in private business establishments, all of which is readily available to law enforcement by permission or subpeona. A review of some of the legal issues can be found at http://www.zetetics.com/mac/partisan/021200.htm.

The Electronic Freedom Foundation (www.eff.org), the Electronic Privacy Information Center (www.epic.org), the Berkman Center for Internet & Society at Harvard Law School (http://cyber.law.harvard.edu/home/) and the Stanford Law School (www.law.stanford.edu) all have pertinent information on the legal, moral economic and social issues involved in electronic surveillance.

(9) Was consideration given to the dichotomy between conversations by mechanical surveillance from conversations listened to by law enforcement personnel with the contention that the former was non-invasive and only the latter was invasive? Would this distinction have made it practical to obtain Court approval before the conversations were subject to human surveillance or after-the-fact approval within 72 hours?

Basically, Specter is continuing to ask how the administration arrived at the decision to bypass law, due process and the issues of technology and go forward without consulting the courts. Specter also hammers away again at the issue of the 72 hour window.

(10) Would you consider seeking approval from the FISA Court at this time for the ongoing surveillance program at issue?

Specter is asking if President Bush and his administration are willing to come back into compliance with the law and the Constitution.

(11) How can the Executive justify disclosure to only the so-called “Gang of Eight” instead of the full intelligence committees when Title V of the National Security Act of 1947 provides:

SEC.501.[50 U.S.C. 413] (a)(1) The President shall ensure that the congressional intelligence COMMITTEES are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this title. (Emphasis added)

(2)(e) Nothing in this Act shall be construed as authority to withhold information from the congressional intelligence COMMITTEES on the grounds that providing the information to the conressional intelligence committees would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods. (Emphasis added)

The “Gang of Eight” is the leaders of the House and Senate as well as the heads of the intelligence panels of both houses of congress. Specter rightly calls the administration to task for not fully disclosing to each of the intelligence committees in full as required by law, pointing out that nothing in any subsequent law explicity or implicitly relieves the Executive Branch from such requirements. In fact, as Specter notes in the letter, the administration doesn’t even have the authority not to disclose on the basis of classification, secrecy or national security.

(12) To the extent that it can be disclosed in a public hearing (or to be provided in a closed executive session, what are the facts upon which the Executive relies to assert Article II wartime authority over Congress’ Article I authority to establish public policy on these issues especially where legislation is approved by the President as contrasted to being enacted over a Presidential veto as was the case with the War Powers Act?

The War Powers Act (War Powers Resolution: Public Law 93-148, 1973) specifically requires “the collective judgement of both the Congress and the President” is required before any military action or resource can be utilized, that the powers of Congress are rightly reserved to Congress itself. It re-asserts the provisions of Articles I and II of the Constitution of the United States, assuring the separation of legislative and executive powers, authority and functions.

Specter also makes the point that this was a bill signed into law with the consent, and acknowledgement of its legitimacy, of the then sitting president, without the need for a veto override. The specific meaning of this issue is that the War Powers Act was a mutually agreed upon law that reaffirmed the separation of authority and functions of the Executive and Legislative Branches and confirmed the structure provided by the US Constitution. Specter is asking for a full and fair explanation of how this law—and the Constitution—can be violated by Executive authority alone.

(13) What case law does the Executive rely upon in asserting Article II powers to conduct the electronic surveillance at issue?

As a well-practiced lawyer and member of congress, Specter knows that the case precedents in federal District, Appellate and Supreme Court levels have consistently ruled against the Executive Branch in matters where past presidents have usurped powers that are exclusively held by the Legislative or Judicial Branches. The most renowned of these precedents is Youngstown Sheet and Tube Co. v. Sawyer (1952), in which the Supreme Court ruled against the federal takeover and nationalization of the steel industry ordered by President Truman through his Secretary of Commerce, Charles Sawyer.

But the precedent also exists in Marbury v. Madison (1803). In this landmark case the Supreme Court asserted the principle that the Judicial Branch has the authority, power and duty to determine what is the law (according to the actual text, legislative intent and legislative history) and not the province of the Executive Branch.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." – Chief Justice John Marshall

(14) What academic or expert opinions does the Executive rely upon in asserting Article II powers to conduct the electronic surveillance at issue?

While this is a straight forward question regarding the legal scholarship involved in the Bush decision to conduct domestic spying, it also slaps the administration in the face because Specter obviously knows that any legal opinion that cannot satisfactorily answer all of the above questions is faulty, false and flawed.


(15) When foreign calls (whether between the caller and the recipient both being on foreign soil and the other in the U.S.) were routed through switches which were physically located on U.S. soil, would that constitute a violation of law or regulation restricting the NSA from conducting surveillance inside the United States, absent a claim of unconstitutionality encroaching on Executive powers under Article II?

Specter is asking how the Bush administration can legally spy on US citizens when there are specific legal prohibitions upon the NSA (as well as military and other intelligence agencies) using any of its personnel or resources for domestic surveillance. He is making the case that once those electronic signals passed through a switch located anywhere in US jurisdiction, the laws of the United States applied and were applicable to the Executive Branch."