Background on the FISA Debate: Bush Broke the Law

President George W. Bush violated the US Constitution and the law when he authorized the National Security Agency (NSA) to conduct warrantless surveillance of Americans. Three principles are enshrined in the Fourth Amendment.

1. A person’s home is his/her sanctuary.
2. Citizens are safe from unreasonable search and seizure without a warrant.
3. The warrant must be provided by an independent court upon probable cause.

President Bush also violated the Foreign Intelligence Surveillance Act (FISA). I will begin at the roots of US law showing that authorizing warrantless surveillance of US Citizens is a violation of the Fourth Amendment. I will then show how FISA came about and how the Bush Administration violated this law.

What is the controversy? Since 2001 the Bush Administration has allowed the NSA to read emails, listen to telephone conversations, (Lacayo, 2006) and capture data about incoming/outgoing phone calls of tens of millions of American Citizens (Cauley, 2006). The fact that the NSA spied on Americans without first obtaining a warrant is without dispute (Risen, 2005). This has been widely reported and has been acknowledged by President Bush (Sanger, 2005). The Bush Administration argues that this authority was specifically given to the president in Article II of the US Constitution and in the Authorization for Use of Military Force (AUMF), enacted on September 18, 2001 (Gonzalez, 2006, January 16).

The American legal system owes its roots to the Common Law, a set of laws based, not on statute but on precedent (Wikipedia.org, Common Law, 2006). To this date, the Supreme Court will acknowledge the precedent of the common law in writing its opinions. Sir Edward Coke’s writings on the English common law were the definitive legal texts for over 300 years. (Wikipedia.org, Sir Edward Coke, 2006) In 1628 Sir Coke wrote “A man's house is his castle – et domus sua cuique est tutissimum refugium.” The Latin phrase means "And where shall a man be safe if it be not in his own house?” The writers of the Declaration of Independence and the Constitution were keenly aware of Coke’s writings and echoed his language. For example they borrowed the phrase “life, liberty and the pursuit of [property] happiness” directly from Coke.

During the 1700’s, King George allowed customs officials to search anywhere at any time by using “writs of assistance,” (U-S-History.com, Writs of Assistance, 2006) or non-specific warrants. This behavior was such an affront to the American Colonists that they later referred to it in the Declaration of Independence, justifying the Colonists’ desire to become self-governed.

In 1761, James Otis referred back to the writings of Coke when he argued in court against the writs of assistance. He said:

“A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire” (U-S-History.com, James Otis, 2006).

The Common Law concept of a person’s home as his or her sanctuary was clearly on the Founding Fathers’ minds when they included the fourth amendment to the constitution.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Supreme Court several times has affirmed the need for an independent court to issue warrants, maintaining a separation of power. For example, in Trupiano vs. United States, 334 U.S. 699, the Supreme Court wrote, “It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable…This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities.”

These important principles - that a person’s home is his/her sanctuary, that they are safe from unreasonable search and seizure without a warrant and that the warrant must be provided by an independent court upon probable cause – went undisputed for generations. The importance of these principles was again affirmed in the wake of the scandals of the Nixon Administration.

In the early 1970’s, under direction from the Nixon Administration, the FBI and other governmental agencies were used to spy on those whom Nixon chose to label as “dissidents.” Some of those dissidents included Rev. Martin Luther King, Jr., Eldridge Cleaver, the Southern Christian Leadership Conference and anti-war protesters. Years later, in an interview with television personality David Frost, Nixon responded to a series of questions (LandmarkCases.org, 2006):

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan [which included warrantless wiretapping] or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

This interview was later included in testimony before the House Permanent Select Committee on Intelligence. This evidence was used in writing the law known as the Foreign Intelligence Surveillance Act (FISA). This act restricts the right of the intelligence agencies to intercept communication that involves US Citizens or long-term residents of the US. The law requires the Attorney General to go before a special FISA court to obtain a warrant for foreign surveillance in which one of the parties is a US Citizen. There are also exceptions built into the law, allowing a 15-day grace period for warrantless wiretapping during times of war and providing for retroactive warrants (FISA, 1978).

How difficult was it to obtain a warrant using the FISA process? According to The Crisis, the official publication of the NAACP (Gaines, 2006), “From 1979 to 2004, FISA denied only four of the government's applications for surveillance while approving 18,727 requests…The four rejections occurred in 2003.”

It was in the days following September 11th that President Bush ordered spy agencies, including the NSA to begin surveillance activities that included US Citizens. Despite a clear mandate from the Constitution and from FISA to first obtain a warrant, the president decided that he had the authority to ignore the requirement and to “use all necessary and appropriate force.”

The warrantless surveillance program remained a secret from the public until December 16, 2005. The New York Times knew about the spying program for more than a year, but had delayed publication of the article upon request from the Bush Administration.

Like the Nixon Administration before it, the Bush Administration has justified its actions by arbitrarily assigning people labels. Nixon arbitrarily labeled US Citizens as “dissidents.” The Bush Administration has branded people as “persons of interest,” “terrorists” or “enemy combatants.” Among some of the groups targeted by the Bush Administration are Greenpeace; Food Not Bombs; Code Pink, an international women's peace organization; and the Rhode-Island based Community Coalition for Peace (ACLU, 2006a).

In summary, the roots of American law have long established the rights to privacy and protection within one’s home and possessions. This principle was enshrined in the fourth amendment to the US Constitution. This right to protection from search and seizure was further clarified by Congress in the wake of the scandals of the Nixon Administration and set into statute under FISA. None of this has stopped the Bush Administration from flagrantly violating the law in its “war on terror.” By ignoring the constitutionally-mandated separation of powers, the Bush Administration has brought us to another constitutional crisis. How this will end is up to the Courts, to Congress and to us, the citizens of the United States who hold those elected officials accountable.

References:

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Don’t just Boot Bush – Reboot

It’s pretty clear that the American people want to boot Bush & Co. out of the Whitehouse. Barack Obama’s message of change absolutely resonated in Iowa, stunning the country with an astounding win. Even on the Republican side, the insurgent who criticized the President’s “bunker mentality” beat the corporate Bush-apologist in Iowa. Change has been the recurring theme of this campaign so far. However, I think we need more than change. We need to not just boot out Bush: we need to reboot the system.

Let’s face it. If any of the Democrats are elected, change will come. There is little doubt that Barack Obama, John Edwards or Hillary Clinton would change some of the Bush policies. Let’s be honest here. If you read the position papers of all three Democrats, you will find that most of the differences in position are tinkering around the edges. The core messages are the same. Healthcare is broken and needs to be fixed. The environment is in crisis and must be healed. Education is weak and has to be supported.

We also need to restore America’s standing in the world. The pictures of Abu Ghraib still circulate on the internet as inspiration for would-be terrorists. The Bush Administration has held prisoners without trial, based on secret evidence, while Bush hides behind a veil of “state secrets” and executive privilege. It is shameful.

One difference between Barack Obama and his Democratic rivals is his ability to not just change the reputation of America in the world, but to reset it, to give us a fresh start, to reboot the political system. The election of Barack Obama as president does more than continue the conversation with different players and an altered message. It completely changes the context of the conversation.

There are times when a system doesn’t just need to close the old programs and open new ones. Until we completely reset the system, there are programs that can continue to run in the background unnoticed. We need to reboot with Obama.

Clinton Spits on Iowa on the Way out of Town

There were a couple of surprising (to me) quotes in the newspapers today. An article in The Wall Street Journal quoted Hillary Clinton’s press secretary, Jay Carlson as saying:

“Iowa is so small, it’s like a mayor’s race in a medium-sized city. It wouldn’t be wise to put too much emphasis on it.”

The same article quotes Clinton chief strategist Mark Penn:

“The worst thing would be to over count Iowa and its importance. Iowa doesn’t have a record of picking presidents.”

The Washington Post quoted Bill Clinton this way:

"Ladies and gentlemen, New Hampshire is going to be given the chance to prove that you are the first [pause for emphasis] primary."

After bragging-up the intelligence and dedication of Iowa voters for the last year, Hillary Clinton suddenly finds little to love about the Hawkeye state. Well, I have bad news for the Clintons. They’re in for more of the same from New Hampshire.

In Iowa Barack Obama attracted thousands of first-time caucus-goers, building a coalition of independents and moderate Republicans to win handily. Well, guess what 45 percent of New Hampshire's voters are? They are independents, not registered for the Democratic or Republican parties, and they can vote in Tuesday’s primary.

The Clintons are much-loved in New Hampshire, the state where Bill Clinton earned the nickname, “The Comeback Kid.” But I like to think that the Independents in New Hampshire are just that – independent thinkers who are ready for a change.

People of New Hampshire, be warned – If you don’t give the Clintons what they want, their vindictiveness will be turned on you next.

Meet the Heroes

Kim and Scott Schultz

If the definition of “hero” is someone who displays courage and the will for self-sacrifice for some greater good, then just yesterday I met two heroes: Kim and Scott Schultz of Cedar Rapids, IA. They have endured a withering barrage of advertisements, phone calls and emails from presidential candidates. Mitt Romney alone has run more than 8,000 ads in Iowa. Even after this tsunami of information, they are still, at this late hour turning up at events, trying to make sure they know everything they need to know in order to pick a President.

To educate themselves, they have taken heroic measures – spent hours searching web sites, reading position papers and of course coming out to see the candidates. They have seen Hillary Clinton, John Edwards and yesterday, as if they had not had enough, they turned out to hear Barack Obama in Cedar Rapids, IA.

This is Kim’s fifth time to see Barack Obama. Kim is a true Obama-believer. She has also canvassed door-to-door and made phone calls on behalf of Sen. Obama. She has registered at My.BarackObama.com and is part of the Coe College group. Kim is completing her teaching certification at Coe College.

You might think the reason Kim started supporting Obama is because of his stance on education. Though she says that is an important issue for her, she says “Actually, out of all the Democrats, he’s the one who is the most honest, the most believable…the one who is most ready to be president because of his background…being raised by his mom. He knows what the average person has to put up with.”

Kim has stayed a loyal Obama supporter despite quite a bit of pressure. “Elizabeth Edwards called me!” she exclaims, still in disbelief. “Not a recording – Elizabeth Edwards called. ‘Hi Kim, You have questions about global warming?’ And then I got a call on my cell phone from [Congressman] Bruce Braley. ‘Elizabeth Edwards told me…’” But Kim was not persuaded. “If there’s anyone who can bring unity…I think Barack Obama can bring unity…Every time I’ve heard him talk, I’m thinking John F. Kennedy, Bobby Kennedy, and Martin Luther King...”

Scott was not so quick to believe in Senator Obama. “I’m the last one to convert,” he confesses. And then he wavers. “Well, I’m still…” he steals a glance at Kim, and then pushes ahead. “Yeah, I think I’m Obama…no, I’m with Obama,” he finally pronounces. With 24 hours to the caucus, Scott still has mixed feelings. When asked about his second choice, he replies without hesitation, “It would be Edwards. We went to see Edwards when he was here at Coe College just before Christmas.” After a few minutes though, he remembers a less-than-favorable impression he had of John Edwards. “He was sort of…well, he was saying you couldn’t be nice and take on the corporations. He was like the Republicans, but the exact opposite. I was glad to hear Barack address that today.”

After a little more conversation, a secret comes out. There’s another hero in the family. “Really, this whole Obama thing started with our son.” Justin, a student at Kennedy High School is the invisible hand behind two converts to Barack Obama – the hero behind the heroes. Scott commented, “It was 10 months ago, Justin just said, ‘you guys are supporting Obama.’”

Justin has met Barack Obama. Before the meeting, Justin had done his homework, developing a deep understanding of Sen. Obama’s positions. When he finally got to meet Barack Obama, Justin took the opportunity to ask Barack Obama the one burning question left - He asked Barack Obama if he liked Jimmy Hendricks. “Yes!” was Obama’s enthusiastic reply. Obama had passed the test. Justin was definitely an Obama man. He went to work on his parents.

And so, here I find them, two heroic figures, Scott and Kim Schultz, taking time out of their schedule for one last check in before the caucus. Despite more than 10 months of constant information overload and a rich field of candidates, they had come out one more time to be sure. As they left they both seem to know whom they would support on caucus night – Barack Obama, a man they see as a hero.

Barack Obama Calls for Calm in Kenya

How would a President Obama handle an international crisis? One may hope to gain a glimpse as Senator Obama responds to the situation in Kenya. Hundreds of Kenyans have been killed after a disputed election, including approximately 50 who died when a church was burned with refuge-seekers inside. Much of the fighting has fallen along ethnic lines, reminiscent of the genocide which occurred in Rwanda, sparking fears of further violence.

Late Tuesday, Senator Barack Obama, whose father and grandparents are Kenyan, called Secretary of State Rice to see how he could assist. After speaking with Secretary Rice and Ambassador Mike Rannenberger in Kenya, Senator Obama recorded a message that is now being played by the Voice of America (VOA) on their Worldwide English system. You can here the audio here. You can read the full statement below.

- Statement by Senator Barack Obama -

"I have been deeply troubled by the recent news out of Kenya. The instability and tragic violence pose an urgent and dangerous threat to the people of Kenya, and to Kenyan democracy. My family’s thoughts and prayers go out to all who have suffered, and to the families of the victims.

"The Kenyan people have a proud history of supporting the growth of democracy in their country. Their thirst for democracy was on display in this most recent election, when they turned out to vote in record numbers, and in a peaceful and orderly way.

"Despite irregularities in the vote tabulation, now is not the time to throw that strong democracy away. Now is a time for President Kibaki, opposition leader Odinga, and all of Kenya’s leaders to call for calm, to come together, and to start a political process to address peacefully the controversies that divide them. Now is the time for this terrible violence to end.

"Kenya’s long democratic journey has at times been difficult. But at critical moments, Kenyans have chosen unity and progress over division and disaster. The way forward is not through violence – it is through democracy, and the rule of law. To all of Kenya’s people, I ask you to renew Kenya’s democratic tradition, and to seek your dreams in peace."