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Congress to Probe Domestic Spying
By William Fisher
12/22/05 NEW YORK (IPS)
- As those loyal to Pres. George W. Bush
circle the wagons to aggressively defend his programme of conducting
surveillance of phone calls and emails of U.S. citizens, a judge on
the court set up to review requests for such actions has resigned,
apparently in protest.
At the same time, a prominent Republican senator promised to hold
public hearings, the House of Representatives Democratic leader and
the ranking Democratic member of the Senate Intelligence Committee
said they had objected to the programme, and a California Democratic
Senator said a number of legal authorities had told her that the
president's actions rose to the level of impeachable offences.
The Californian, Sen. Barbara Boxer, was the first to use the "I"
word (impeachment) in the political firestorm started by revelations
in the New York Times earlier this week that, following the 9/11
attacks on the U.S., Pres. Bush authorised the highly secretive
National Security Agency (NSA) to intercept phone calls and emails
without warrants between U.S. citizens and what the administration
said were foreigners with known ties to al Qaeda and other terrorist
organisations.
The administration said today that some internal U.S. communications
might also have been intercepted by mistake.
The president, in a press conference on Monday following The Times'
disclosures, defended the legality of the programme, saying that he
had to move too quickly to go to court for warrants and that he had
both Constitutional and statutory authority to use warrantless
wiretaps to protect U.S. citizens.
Bush based his position on his inherent powers as commander-in-chief
of the armed forces, his Constitutional obligation to protect the
U.S. people, and the post-9/11 Congressional resolution that
authorised him to wage war.
The president's position drew strong endorsements from
Attorney-General Alberto Gonzales, who was the chief White House
lawyer at the time the programme was started, Vice President Dick
Cheney, National Security Advisor Richard Hadley, Secretary of State
Condoleeza Rice, who was National Security Advisor at the time, and
numerous other administration and congressional officials.
However, the president's critics and a number of legal authorities
disagreed. They pointed out that the Fourth Amendment to the
Constitution prohibits unreasonable searches and seizures. They also
noted that the law establishing the court authorised to issue such
warrants would have been able to act quickly on any request from the
administration, adding that the law also permitted the president to
act first and seek court authority after the fact.
The court being referred to is the Foreign Intelligence Surveillance
Court, established in the post-Watergate era of the 1970s, as part
of the Foreign Intelligence Surveillance Act.
The highly secret 11-member Court is located in the Department of
Justice (DOD) and its members are federal judges appointed by the
chief justice of the U.S. The USA Patriot Act designates the FISA
court as the only judicial body authorised to issue surveillance
orders in terror-related investigations. Of the 5,000-odd requests
it has received from the Justice Department, it is believed to have
denied only a handful.
The controversy over the president's actions reportedly triggered
the resignation of FISA judge James Robertson. Judge Robertson, a
U.S. District Judge, notified Chief Justice John G. Roberts Jr. of
his decision late Monday without providing an explanation.
But the Washington Post newspaper reported today that two associates
familiar with his decision said Robertson privately expressed deep
concern that the warrantless surveillance program authorised by the
president in 2001 was legally questionable and may have tainted the
FISA court's work.
The FISA court's presiding judge, Colleen Kollar-Kotelly, who had
been briefed on the spying programme by the administration, raised
the same concern in 2004 and insisted that the Justice Department
certify in writing that it was not occurring.
Robertson's resignation came as two Senate Republicans -- Chuck
Hagel of Nebraska and Olympia J. Snowe of Maine -- called for
congressional investigations. They questioned whether the programme
was carried out within the law and the extent to which the White
House kept Congress informed.
Hagel and Snowe joined Democrats Dianne Feinstein of California,
Carl M. Levin of Michigan and Ron Wyden of Oregon in calling for a
joint investigation by the Senate judiciary and intelligence panels
into the classified programme.
The chairman of the Senate Judiciary Committee, Republican Sen.
Arlen Specter of Pennsylvania, promised hearings in the new year.
But not all Republicans agreed with the need for hearings and backed
White House assertions that the programme is a vital tool in the war
against al Qaeda.
"I am personally comfortable with everything I know about it," said
Acting House Majority Leader Roy Blunt of Missouri. .
While Pres. Bush said at his Monday press conference that the White
House had briefed Congress more than a dozen times, briefings were
conducted for only a handful of lawmakers who were sworn to secrecy
and prevented from discussing the matter with anyone or from seeking
outside legal opinions.
John D. Rockefeller IV of West Virginia, the top Democrat on the
Senate Select Intelligence Committee, said on Monday that he had
written to Vice Pres. Cheney the day he was first briefed on the
programme in July 2003, raising serious concerns about the
surveillance effort.
House Minority Leader Nancy Pelosi of California said she also
expressed concerns in a letter to Cheney. She did not make the
letter public.
Rockefeller said the secrecy of the briefings left him with no other
choice. "I made my concerns known to the vice president and to
others who were briefed," Rockefeller said. "The White House never
addressed my concerns."
The Republican chairman of the Senate Intelligence Committee, Sen.
Pat Roberts of Kansas, criticised Rockefeller for making his letter
public.
Scepticism about Rockefeller's letter was echoed by Sen. John McCain
of Arizona, who suggested that Rockefeller should have done more if
he was seriously concerned. "If I thought someone was breaking the
law, I don't care if it was classified or unclassified, I would
stand up and say 'the law's being broken here.' "
During his 2000 campaign for the presidency, candidate Bush gave
assurances that no surveillance of U.S. citizens would be conducted
unless warrants had been obtained.
The NSA contretemps came just days after revelations that FBI
counterterrorism investigators are monitoring domestic U.S. advocacy
groups engaged in antiwar, environmental, civil rights and other
causes, the American Civil Liberties Union (ACLU) charged as it
released new FBI records.
"Our government is spying on Americans -- unapologetically,
unnecessarily and with no regard for the Constitution," the group
said, urging its members to "Hold the Bush administration
accountable for secretly authorising the eavesdropping of Americans
and others in the U.S., continue our nationwide efforts to expose
and end unwarranted political spying and the criminalising of
dissent by the FBI, and oppose Patriot Act abuses of freedom in the
courts, in Congress, and in the court of public opinion."
The ACLU documents, disclosed as part of a lawsuit that challenges
FBI treatment of groups that planned demonstrations at last year's
political conventions, show the bureau has opened a preliminary
terrorism investigation into People for the Ethical Treatment of
Animals (PETA), a well-known animal rights group.
The FBI has also been charged with carrying out "anti-terrorist"
investigations against peaceful anti-war, environmental and other
dissident groups.
In an email to IPS, Bob Barr, a former conservative Republican
congressman from Georgia, quoted Gen. Michael Hayden, then the head
of the NSA and now the deputy director of national intelligence,
telling a congressional hearing regarding wiretap targets in 2000,
"If that American person is in the United States of America, I must
have a court order before I initiate any collection against him or
her."
Barr added, "If the president doesn't like the law, the solution
should be to amend, not violate it." (END/2005)
Copyright © 2005 IPS-Inter Press Service. All rights reserved.
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