Monday, May 22, 2006

NYT: "Gonzales Says Prosecutions of Journalists Are Possible" (Adam Liptak)

The government has the legal authority to prosecute journalists for publishing classified information, Attorney General Alberto R. Gonzales said yesterday.
"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Mr. Gonzales said on the ABC News program "This Week."
"That's a policy judgment by the Congress in passing that kind of legislation," he continued. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."

The above's from Adam Liptak's "Gonzales Says Prosecutions of Journalists Are Possible" in this morning's New York Times. Of course it's "possible" -- when you're dealing with an administration that ignores the letter and the spirit of the law. Considering the trashing of the law (and their own principles -- suddenly "states' rights" weren't important to them) that allowed Bully Boy to be installed by the Supreme Court, they've demonstrated time and again that they have no respect for the law -- while holding positions where they are supposed to uphold the law. The law, in their mind, is what they say it is. Just as their oath to uphold the Constitution translates (in their minds) as an oath to the Bully Boy.

For more on the issues of our legally-challenged administration, Rachel steers us to
Seymour M. Hersh's "Listening In" (The New Yorker):

A few days before the start of the confirmation hearings for General Michael Hayden, who has been nominated by President Bush to be the head of the C.I.A., I spoke to an official of the National Security Agency who recently retired. The official joined the N.S.A. in the mid-nineteen-seventies, soon after contentious congressional hearings that redefined the relationship between national security and the public’s right to privacy. The hearings, which revealed that, among other abuses, the N.S.A. had illegally intercepted telegrams to and from the United States, led to the passage of the 1978 Foreign Intelligence Surveillance Act, or FISA, to protect citizens from unlawful surveillance. "When I first came in, I heard from all my elders that 'we'll never be able to collect intelligence again,'" the former official said. "They'd whine, 'Why do we have to report to oversight committees?' " But, over the next few years, he told me, the agency did find a way to operate within the law. "We built a system that protected national security and left people able to go home at night without worrying whether what they did that day was appropriate or legal."
[. . .]
Last December, the Times reported that the N.S.A. was listening in on calls between people in the United States and people in other countries, and a few weeks ago USA Today reported that the agency was collecting information on millions of private domestic calls. A security consultant working with a major telecommunications carrier told me that his client set up a top-secret high-speed circuit between its main computer complex and Quantico, Virginia, the site of a government-intelligence computer center. This link provided direct access to the carrier's network core--the critical area of its system, where all its data are stored. "What the companies are doing is worse than turning over records," the consultant said. "They're providing total access to all the data."
"This is not about getting a cardboard box of monthly phone bills in alphabetical order," a former senior intelligence official said. The Administration’s goal after September 11th was to find suspected terrorists and target them for capture or, in some cases, air strikes. "The N.S.A. is getting real-time actionable intelligence," the former official said.
[. . .]
Instead, the N.S.A. began, in some cases, to eavesdrop on callers (often using computers to listen for key words) or to investigate them using traditional police methods. A government consultant told me that tens of thousands of Americans had had their calls monitored in one way or the other. "In the old days, you needed probable cause to listen in," the consultant explained. "But you could not listen in to generate probable cause. What they're doing is a violation of the spirit of the law." One C.I.A. officer told me that the Administration, by not approaching the FISA court early on, had made it much harder to go to the court later.

On this topic, In Dallas notes the Center for Constitutional Rights' "CCR Letter to the Senate Intelligence Committee Opposing Hayden CIA Nomination" on the issue of the NSA and Michael Hayden. Here's the section In Dallas wanted noted:

3. General Hayden knew or should have known that the NSA Domestic Spying Program constitutes an unlawful breach of Executive authority.
Congress was well within its authority under Article I when it passed FISA almost thirty years ago. The Executive Branch's attempt to bypass this congressionally-approved statute and to curtail the judicial issuance of FISA warrants has resulted in a grave intrusion on the separation of powers, the benchmark of our governmental system. As evident by the manner in which the programs were designed and widespread internal doubt as to their legality, General Hayden was aware that the Executive Branch was not authorized to expand the surveillance activities of the NSA without first consulting the legislative branch.
As noted in CCR's Motion, the Executive's "broad assertion of uncheckable authority to choose the means and methods of engaging the enemy finds no support in the case law, the text of the Constitution, or the history of executive-legislative interactions during wartime." In Hamdi v. Rumsfeld, Justice O’Connor wrote for the plurality as the Court upheld judicial authority to inquire into the factual circumstances of a U.S. citizen’s detention as an enemy combatant, reminding the Executive Branch that "[w]hatever power the United States Constitution envisions for the Executive Branch in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when civil liberties are at stake." The spirit of this statement is reflected in the background of FISA, which originated in response to Executive Branch abuses in the area of warrantless surveillance.
As the highest-ranking intelligence officer in the armed forces, General Hayden should have been well aware of the legality problems with the NSA's domestic surveillance activities. Several other governmental officials had already suspected as much and spoken out accordingly. The Electronic Privacy Information Center filed a Freedom of Information Act lawsuit involving the NSA, and in March, it obtained documents revealing that David S. Kris, a former top official in the Justice Department, knew that the electronic surveillance program probably was not permissible under the Authorization for Use of Military Force Resolution. In an e-mail, Kris wrote that the DOJ's defense of the domestic spying program "had a slightly after-the-fact quality or feeling to them." In January, the New York Times reported that another top DOJ official, James B. Comey, doubted the legality of the program and its lack of oversight, refusing to approve central aspects of it when he acted as Attorney General during John Ashcroft's 2004 stint in the hospital. Bush's aides Andrew Card and Alberto Gonzalez then sought Ashcroft's certification during an emergency bedside visit, where some officials say that Ashcroft echoed similar discomfort about key aspects of the program; "[i]t is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it." A number of senior government officials reported that in the earlier days of the domestic spying program, several NSA officials--obviously lower in ranking than General Hayden--sought to have no part in the activities, "apparently fearful of participating in an illegal operation." In February, the Washington Post recounted yet another story of a "high-ranking intelligence official" who appealed for "a more cautious approach," after which he said he was "pushed aside." Yet despite these concerns from senior officials and subordinates surrounding General Hayden, he did not exercise similar judgment or restraint.
Instead, it appears that General Hayden's CIA nomination is a reward for his failure to uphold the law in the face of Executive pressure. Given the many indications that NSA's electronic surveillance program and massive domestic call database gravely intruded into the separate functions of the three branches, and because Hayden's position required him to respect the limits of Executive authority unequivocally, his promotion should be opposed.

To read more points from Shayana Kadidal's letter to Pat Roberts click here.

Remember to listen, watch or read (transcripts) of Democracy Now! today. And one thing to pay attention to is "Sara Jean Rohe." We've gone with that name based on David M. Herszenhorn's report in Saturday's New York Times (B10) but there are reports crediting her as "Jean Sara Rohe." If I've been incorrect in using "Sara Jean Rohe," I'll correct it this evening.

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