Monday, December 19, 2005

Democracy Now! | An Impeachable Offense? Bush Admits Authorizing NSA to Eavesdrop on Americans Without Court Approval

Watch/read this entire thing. Here are the key tidbits.

"* Martin Garbus, a partner in the law firm of Davis & Gilbert LLP. Time Magazine calls him "one of the best trial lawyers in the country," while the National Law Journal has named him one of the country's top ten litigators.
* Christopher Pyle, Professor of Politics at Mt. Holyoke. In 1970 Pyle disclosed the military's surveillance of civilian politics and, as a consultant to three Congressional committees, worked to end it."


"AMY GOODMAN: We're talking about the revelations of the National Security Agency spying on Americans. We're joined by James Bamford, investigative journalist in Washington. In a moment, Christopher Pyle, former military intelligence analyst who exposed this kind of surveillance back decades ago, and in our studio in New York, Martin Garbus, who is a well known First Amendment attorney. Martin Garbus, you wrote a piece in a letter to the editor in the New York Times that appeared on Saturday that talks about, well, both the expose, but why the Times held onto it. What is the significance of this?

MARTIN GARBUS: Well, I think it's the first time in a while that the Times has done something like that, and I compared it to the Pentagon Papers case, when they went ahead and they ignored what the government said. Here the government had meetings with the New York Times.

AMY GOODMAN: Stop for a moment, for kids who are listening who don't even know what the Pentagon Papers are.

MARTIN GARBUS: The Pentagon Papers were documents that ultimately Daniel Ellsberg released. They were secret documents which indicated and gave information about our involvement in Korea and North Vietnam, in both those wars. And those documents released, the government then tried to stop the publication of those papers. The New York Times and the Washington Post both went ahead and published those stories. The government, at that time, made the claim that our foreign policy would be affected, and that particular individuals or many individuals would be killed because of the release of secret information. And the Times and the Washington Post ignored that.

What we’ve recently seen is both the New York Times and the Washington Post have taken a totally different tack. The Washington Post, when it wrote about the secret prisons, was asked by the government not to give the locations of those secret prisons, and the Washington Post acceded to that. The New York Times, for one -- at least one year, held up the publication of this story, and had this story come out in 2002, 2003, 2004, probably the politics in the country would be very, very different. And the New York Times had meetings with the government, and according to the New York Times, they made an investigation, and they concluded what there were legal safeguards in effect that permitted the government's policy.

Now, the New York Times has a lot of very sophisticated lawyers, and those lawyers know better than that. There is a case, and I'd like to refer to something James Bamford said, with respect to how long this has gone on before. There had been a case in 1972, when Nixon tried to do the same thing. Lenny Wineglass, a very fine lawyer, argued the case in District Court. Nixon claimed that you could, for domestic surveillance, that you had a right to use executive warrants, as he claimed, the permission of the President and the Attorney General. And he said that that was sufficient. This was at a time of civil unrest, according to him, 1971, 1972. There were some bombings within the United States. And he went out, and he tried to survey, surveillance people, eavesdropping, wiretapping without judicial warrants, without probable cause.

And the United States Supreme Court said no. The United States Supreme Court said you can’t do this. The United States Supreme Court said that the President does not have that kind of power within the Constitution. He has the power to protect the nation, but this goes beyond that. He can’t violate the Constitution. That's exactly what's happening now. And what’s going to happen is: You now have a different Supreme Court. You’re going to have Roberts, probably Alito, and my judgment is they're going to uphold what Bush is doing, and in effect, they're going to reverse, though not directly, the Nixon case. It's a strategy to get past that Nixon case and to give the President the broadest powers that any President has ever had.


CHRISTOPHER PYLE: Not terribly surprised, but the one piece of it that amazes me is that the President admitted that he personally ordered the National Security Agency to violate a federal statute. Now, he has no Constitutional authority to do that. The Constitution says he must take care that all laws be faithfully executed, not just the ones he likes. The statute says it's, as you said at the beginning of the program, that the Foreign Intelligence Surveillance Act is the exclusive law governing these international intercepts, and he violated it anyway. And the law also says that any person who violates that law is guilty of a felony, punishable by up to five years in prison. By the plain meaning of the law, the President is a criminal.

AMY GOODMAN: Martin Garbus, you say this is an impeachable offense.

MARTIN GARBUS: Yes, I agree that it is a crime, that it is an impeachable offense. The question is: What will happen? The mere fact that it’s impeachable doesn't necessarily mean that the Supreme Court will find that, and it doesn't mean that he will necessarily be impeached. He should be impeached, but he is claiming, for the first time, that he has the authority to do this, even though FISA is there, because he has relied on counsel. He has relied on John Yoo. He has relied previously on Ashcroft, and he’s now relying on Gonzales. And all of these people are telling him that it's legal. All these people are telling him that the President's powers can be expanded, even though FISA is there. And the President has come up with an excuse, which I don’t see how anybody can buy. In FISA, you can get a warrant in five minutes. You just go before the FISA court and you get your warrant, and that's all there is to it. There’s no argument --

AMY GOODMAN: Hasn't the criticism been that FISA gives them too easily?

MARTIN GARBUS: Surely. Your statistics were correct. Namely, that out of some 15,000 warrant applications, there were eight that were denied since 1978, so it's basically a rubber stamp. Now, what Bush said is, ‘I don't have the time,’ he says, ‘to go to FISA.’ Now, everybody has had the time to go to FISA. It doesn't take any time at all. So, that the argument that he has the right to avoid FISA, I think, is a false argument."

2 Thoughts:

Blogger pawlr said...

Not only that, but Bush could actually obtain the FISA warrant _retroactively_ from the moment the tape starts rolling, as long as he gets it within 72 hours. So the 5 minutes is actually more like 0 minutes.

What it looks like is that he simply didn't want to do the paperwork, because it would record who he was spying on in the first place.

I've been calling both my Senators and my Rep all day - the more people who let it be known how they feel about this, the better.

Monday, December 19, 2005 2:58:00 PM  
Blogger Doug said...

Yep, and I've done the same (callwise). I've also written them and the Providence Journal.

A letter of mine on Alito was actually published -- I didn't find out till a couple weeks ago (I don't read the PJ -- why bother with amalgamated wire reports and NYT reprints?)

Monday, December 19, 2005 3:13:00 PM  

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