by William Fisher
(IPS) NEW YORK -- As Bush loyalists circle the wagons to aggressively defend his program 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 program, 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, Bush authorized 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 organizations.
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 program, 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 authorized 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 program 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 authorized 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 authorized 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 authorized 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 program 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 program 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 program.
The chairman of the Senate Judiciary Committee, Republican Sen. Arlen Specter of Pennsylvania, promized hearings in the new year.
But not all Republicans agreed with the need for hearings and backed White House assertions that the program 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 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 program 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, criticized Rockefeller for making his letter public.
Skepticism 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." (
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