Friday, January 20, 2006

NYT: "Legal Rationale by Justice Dept. on Spying Effort" (Eric Lichtblau and James Risen)

But Robert Reinstein, dean of the law school at Temple University, said in an interview that he considered the eavesdropping program "a pretty straightforward case where the president is acting illegally," and he said there appeared to be a broad consensus among legal scholars and national security experts that the administration's legal arguments were weak.
The foreign intelligence law passed by Congress in 1978 represents the Bush administration's biggest legal hurdle, he said. "When Congress speaks on questions that are domestic in nature, I really can't think of a situation where the president has successfully asserted a constitutional power to supersede that," he said.
Two leading civil rights groups brought lawsuits this week aimed at ending the N.S.A. program, and several lawyers representing defendants in terrorism cases are also seeking to challenge the program on the grounds that it may have been improperly used in criminal prosecutions.
Mr. Reinstein predicted that the court would ultimately declare the program unconstitutional. "This is domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity, and it is in contravention of a statute of Congress specifically designed to prevent this," he said.

The above is from Eric Lichtblau and James Risen's "Legal Rationale by Justice Dept. on Spying Effort" in this morning's New York Times. Bully Boy & company have released their "rationale" (don't choke from laughter) for spying on American citizens without warrants. The Times looks at a forty-two page document and . . . wastes your time. Reporters are not legal scholars and, even were they, the Times' beloved "balance" doesn't allow them to analyze (unless clearly marked "news analysis" so I have no idea what they thought they were doing here. You've got a forty-two page document, you take it to legal scholars (with an emphasis in Constitutional Law) and you ask them to critique it. That's not done.

This article does nothing to illuminate the issue. It's as though, in the lead up to a trial, before it started, the Times heard that a suspect had said, "No, I didn't break the law" and decided to turn that statement into a story. That's as deep as it goes this morning.

We've heard the argument by the administration before but suddenly it's "news" because the administration has released a forty-two page document they produced internally of their justification for breaking the law. I wouldn't even call it a "legal justification." Not in the week when the Supreme Court has again slapped down the "legal justification" of the Executive Branch.

He's just sittin' on a corner, wastin' time
He's just sittin' on a corner, wastin' time
Wastin' all his precious time, wastin' all his time
Everyone, never wonderin' why

That ("Precious Time" written by Maria McKee and Gary Louns, off McKee's You Gotta Sin To Get Saved album) pretty much sums up the story which offers nothing than a summary (not a critique, you need outsiders -- outside of the paper -- who've seen the documents for that the way the paper's set up).

You're better served reading Katie Hafner and Matt Richtel's "Google Resists U.S. Subpoena of Search Data:"

The Justice Department has asked a federal judge to compel Google, the Internet search giant, to turn over records on millions of its users' search queries as part of the government's effort to uphold an online pornography law.
Google has been refusing the request since a subpoena was first issued last August, even as three of its competitors agreed to provide information, according to court documents made public this week. Google asserts that the request is unnecessary, overly broad, would be onerous to comply with, would jeopardize its trade secrets and could expose identifying information about its users.
The dispute with Google comes as the government is moving aggressively on several fronts to obtain data on Internet activity to achieve its law enforcement goals, from domestic security to the prosecution of online crime. Under the antiterrorism law known as the USA Patriot Act, for example, the Justice Department has demanded records on library patrons' Internet use.
Those efforts have encountered resistance on privacy grounds.

The government's move in the Google case, however, is different in its aims. Rather than seeking data on individuals, it says it is trying to establish a profile of Internet use that will help it defend the Child Online Protection Act, a 1998 law that would impose tough criminal penalties on individuals whose Web sites carried material deemed harmful to minors.

If net users valued their privacy the way gun owners do and organized the way the NRA does, the administration probably wouldn't even attempt to spy on them. The administration's disregard for the privacy rights of all (except for gun owners) and the fact that the FBI's profilers have already compiled (many years ago) a profile should make the entire fishing expedition suspect.

Lastly, Micah noted James Ridgeway's "Spygate: And No Special Counsel, Either" (The Village Voice):

If recent statements its players are any guide, the Bush administration is digging in his heels on the president's domestic spying program, publicly insisting it can override all wiretap laws.
On Monday night, Attorney General Alberto
Gonzales went on T.V. to explain the rationale for the National Security Agency's spying to Larry King:
"Larry, whenever you involve another branch of government in an activity regarding electronic surveillance, inherently it's going to result in some cases in delay. Perhaps in straightforward cases we can get authority relatively quickly but not all of these cases are straightforward and it's very, very important that the president has the agility and the speed to gather up electronic surveillance of individuals that may be in contact with the enemy."
In other words, the Attorney General Gonzales is saying President Bush not only had authority to spy on Americans without a warrant, but that in the interest of avoiding "delay" he can--on his own authority--bypass any of the myriad intelligence agencies. This statement puts the leading law enforcement officer of the U.S. on public record as saying that if speed is a requirement, the president can contravene any wiretap law. Gonzales apparently does not believe in the powers of an elected Congress.
Nor does he believe in a truly independent probe of Bush's wiretapping. Gonzales will testify before the Senate Judiciary Committee on the matter, but he's
no fan of asking for a special counsel to investigate, as Al Gore suggested.

Micah noted that for indymedia roundup last night but there wasn't time for two entries so we'll note it here.

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