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    19 May 2006

    Was the Administration aware that it was violating FISA? [updated]

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    I believe that the answer is yes.

    General Hayden aside, for he surly is a competent pick - a necessary replacement of blatant cronyism - for the CIA, the hearings in DC yesterday were more of a referendum on the illegal wiretapping campaign put forth by the powers that be (ruining our democracy). Hayden should and by all accounts will be confirmed. Although he should give everyone of us an apology for what he did as director of the NSA and one should hope he didn't lead Washington down a slippery-slope with the illegal and unconstitutional program he devised. But the sitting Administration in Washington is arrogant, ignorant, and stubborn. And they are enabled by legislatures, Republicans and Democrats alike. Those who think we are not already on a slippery-slope should, well, think again.

    [UPDATE] Via email, I'm reminded about his comments about and defense of torture. Shame on me and him, but...
    Arrogant, ignorant, and stubborn still apply here. He could have raped Jenna and Barbara's kitten and this administration would still nominate him, as long as he stays loyal. That is the Republican way.

    But his testimony set of warning bells to prominent - all things constitutional - blogger Glenn Greenwald. He questions whether or not the Administration initially took into account the standing laws protecting American civilians from violations of the Fourth Amendment. The argument from Bush's personal lawyer... err... Attorney General Alberto Gonzales is that Bush had authority to fight terrorist by any means via the authorization to use military force (AUMF) by Congress, which is claimed to have granted Bush the authority to violate the law in the name of the War on Terrorism, or whatever you want to call it. This includes, or to the administration included warrentless surveillance on innocent Americans as well as other means that are still unacknowedged and/or unknown today.

    However, contrary to the logic presented by Gonzales, Gen. Hayden claimed yesterday that this logic was not initial. As Glenn says, "...when President Bush ordered warrantless eavesdropping, the administration did not believe that this eavesdropping was authorized by Congress as a result of the AUMF, nor did it believe that the eavesdropping was consistent with FISA." In fact they probably new very well that this violated FISA. The logic put forth by Hayden yesterday was an Article II argument which under the Bush Administration's interpretation gives it full authority to protect the nation and anything that is perceived to limit that authority, even the long standing (27 years) and bush-liberalized rubber-stamp court known as FISA, is unconstitutional.

    Therefore, I must conclude that the sitting Administration new very well that it was violating the law and when certain aspects of the NSAs espionage activities were disclosed they then began justifying it with the AUMF bullshit. Basically they were caught violating the law and needed a quick defense.

    As Gleen Greenwald concludes:
    That the AUMF defense did not even exist when the President ordered warrantless eavesdropping on Americans is extremely significant because it means that the administration did not even purport to believe that the eavesdropping they were ordering was consistent with any statute. They knew that FISA criminalized that eavesdropping, and the sole justification for engaging in it was that President Bush could order the law violated because he has that power, and FISA is invalid to the extent it regulates that power. But the circumstances under which this claim arose, by itself, demonstrate how frivolous this theory is.

    FISA was passed overwhelmingly and has governed eavesdropping in our country for almost 30 years, with no suggestion that it is unconstitutional and with president after president complying with its mandates and never challenging them. That long-standing consensus does not dispositively prove that the law is constitutional, but the fact that nobody claimed that FISA was unconstitutional until it was revealed that President Bush has been violating that law, is rather compelling evidence of just how weak and pretextual that claim is.

    Posted by Geoff

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