Bush and his legal sycophants have tried to make the case that the president has the power to conduct warrantless electronic surveillance and exercise some other powers based on the nebulous idea that when the president feels he needs extra authority he can just seize that authority. That argument In so many words as the Anonymous Liberal points has been repeated endlessly wherever a Bush supporter could find a medium or forum to express that bizarre concept cut out of the whole cloth of Republican imagination rather then any legal precedent. There is certainly no explicit or implied powers in the Constitution for such unrestricted presidential powers. We could have skipped the American Revolution of Independence if the Founding Fathers has meant for us to be governed by a king. When Bad Legal Arguments Face Real Judicial Scrutiny
But there are still realms in which Republican talking points don’t determine reality, and one of those realms is the court room. In court, particularly in federal court, you can’t just rely on repetition and bluster.
[ ] that Judge Vaughn Walker–a Bush appointee–became the latest in a string of judges to affirm what all of us have been saying for the last two and a half years…
In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.
[ ]..To the contrary, the court believes that the two areas of executive branch activity pertaining to foreign intelligence surveillance are not distinct for purposes of this analysis as defendants’ counsel asserts. Congress appears clearly to have intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.
For us non-lawyers the Electronic Frontier Foundation has a good summary of the myths and facts surrounding the implications of the Chief Judge Vaughn Walker decision, What The New NSA Spying Decision Means for the Immunity Debate
Myth: It’s not fair to punish the telecoms for relying in good faith on the president’s authorization to conduct the surveillance, even though it violated FISA.
Fact: In an extended discussion, the Al Haramain decision makes clear — or rather, shows how clear it already was — that the President’s commander-in-chief powers do not give him the authority to ignore FISA. See Opinion at pp. 10-14, 23 (“[With FISA,] Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities….”)
Myth: Getting new language in the FAA asserting that FISA is the exclusive means by which the President can conduct domestic surveillance is a fair trade for gutting FISA’s long-standing protections and giving the telecoms immunity.
Fact: Again, the Al Haramain decision makes clear that FISA was already the exclusive means by which the President may authorize electronic surveillance. See Opinion at p. 13 (“[FISA’s language] and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.”)
You always have to add this disclaimer. Bush or the next president can legally spy on communications between France and Russia or Brazil and China or whoever else he wants to spy out in terms of foriegn surveillance. The issue has always been about domestic spying and the very accommodating FISA laws and the further accomodating so-called Patriot Act. Most of us have some idea of America’s spying capacity. Bush and his supporters have claimed this is the key to fighting terrorism. While there have probably been some success stories that we’ll never hear about we do know that with all the satellites and electronic surviellance technology at our disposal it has not captured Bun Laden or kept al Queada from resurging in Pakistan and Afghanistan.
The Rabbit Hole. The place where you go after a Republican president insists that if you were fingered by his new communist friends you are guilty, Enemy of China
Parhat’s journey to Guantanamo Bay, via the Bush administration’s looking glass, was a curious one. An ethnic Uighur, Parhat was part of a community of Muslims in western China who have resisted Chinese domination, including the central government’s strict policies against large families.
Having fled his home, Parhat moved to a camp in Afghanistan that was dominated by an Uighur resistance group known as the East Turkistan Islamic Movement. According to his testimony, he received rudimentary military training and helped guard the camp.
However, when the United States invaded Afghanistan after 9/11 to root out al-Qaeda terrorists and their Taliban hosts, American planes also bombed the Uighur camp, driving Parhat and other survivors into Pakistan where some, including Parhat, were eventually turned over to the United States.
Sent to Guantanamo, Parhat was designated an “enemy combatant,” even though – as the judges wrote – “it is undisputed that he is not a member of al-Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies.
Archaeologists working at the site of George Washington’s childhood home have located and excavated the remains of the long-sought house where Washington was raised. The site was the setting of some of the best-known stories related to his youth, including tales of the cherry tree and throwing a stone across the Rappahannock River.