“ACLU Sues to Stop Illegal Spying on Americans, Saying President is Not Above the Law” (with helpful protein wisdom gloss)
From the ACLU Press release:
Saying that the Bush administration’s illegal spying on Americans must end, the American Civil Liberties Union today filed a first-of-its-kind lawsuit against the National Security Agency seeking to stop a secret electronic surveillance program that has been in place since shortly after September 11, 2001.
[Translation: Asserting that law has been broken without having evidence that a law has been broken, the ACLU today filed the first in a series of lawsuits under which an organization formed ostensibly to protect the civil liberties of Americans seeks to undermine those civil liberties by making them coequal to the liberties of agents of foreign powers who attempt to appeal for our liberties by mimicking our legal status under classifications based on geographical situatedness.]
“President Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it,” said ACLU Executive Director Anthony D. Romero. “The current surveillance of Americans is a chilling assertion of presidential power that has not been seen since the days of Richard Nixon.”
[Translation: the reason it “has not been seen since the days of Richard Nixon” is that it has not happened since the days of Richard Nixon—at least not under the Bush administration (though the ACLU has made no mention of filing retrospectively against the Clinton administration or Chuck Schumer). The fact is, we’re now dealing with a Republican President, and that changes everything. So the simple suggestion that his administration has broken the law—a suggestion that is based on his administration’s (and the counsels of other agencies, such as the DoD and NS) legal assertions that it is within their power under AUMF and, by extension, a FISA Court exemption to engage in foreign surveillance without a warrant under limited scenarios wherein at least one end of the conversation takes place overseas—is enough to “demand hearings.” Guilty until proven innocent, screams the new righteous party of McCarthyism.
Of course, in McCarthy’s case, he was trying—albeit hamfistedly—to root out communists who had infiltrated our government and represented a cold war security risk; whereas the new ACLU/DNC-led McCarthyism is looking to root out those who may have tried to protect the homeland under Presidential authority without first (potentially) showing unconstitutional deference to our “parliament."]
The lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East. Because of the nature of their calls and e-mails, they believe their communications are being intercepted by the NSA under the spying program. The program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy. The program, which was first disclosed by The New York Times on December 16, has sparked national and international furor and has been condemned by lawmakers across the political spectrum.
[Translation: the case will be thrown out for no standing; simply being listened to—or rather, simply asserting that your paranoid fear of having your overseas calls to specified locales monitored by the NSA, who role it is to gather signal intel, is not grounds for a suit, and SCOTUS is notoriously reluctant to enter into battles that boil down to a tug of war over the separation of powers. In what ruling we do have, we already know that the NSA most certainly can acquire that information, specifically if the American isn’t the target; and so the lawsuit is a publicity stunt—a way for the ACLU to assert its staunch progressive bona fides in this particular case. Unfortunately they are agitating on behalf of our enemy to avoid legal, military, statutory, and constitutional means to gather intel as a way to weaken our ability to wage an effective war.]
In addition to the ACLU, the plaintiffs in today’s case are:
Authors and journalists James Bamford, Christopher Hitchens and Tara
Afghanistan scholar Barnett Rubin of New York University’s Center on
International Cooperation and democracy scholar Larry Diamond, a fellow
at the Hoover Institution
Nonprofit advocacy groups NACDL, Greenpeace, and Council on American
Islamic Relations, who joined the lawsuit on behalf of their staff and
membership[Translation: so what? Appearing for the defense, the Constitution, the War Powers Act, the congressionally signed AUMF, and absolutely no proof that in a scenario requiring a FISA warrant (say, domestic to domestic calls in a phone chain), that warrant, with its 72-hour grace period exemption wasn’t, in fact obtained; as to the 72-hour grace period itself, FISA Courts can act quickly, but the sheer number of automated intercepts (based likely off a key-word database that now needs to be rebuilt) makes FISA warrants on individual numbers, given today’s disposable technology, logistically laughable; and even though conditions for obtaining the warrants have been relaxed via the PATRIOT Act, this does not prove, as civil libertarians assert, that the President, had he wished to, could have authorized the program with the blessing of both FISA and the Congress had he simply asked for it. Instead, what it does suggest is that foreign intel gathering (as defined under FISA’s foreign surveillanc definition) did not require the administration to make changes in the vast majority of scenarios—and that the only relaxing of FISA necessary would have been for obtaining warrrant with a different standard of cause brought about by exigent circumstances.]
“The prohibition against government eavesdropping on American citizens is well-established and crystal clear,” said ACLU Associate Legal Director Ann Beeson, who is lead counsel in ACLU v. NSA. “President Bush’s claim that he is not bound by the law is simply astounding. Our democratic system depends on the rule of law, and not even the president can issue illegal orders that violate Constitutional principles.”
[Translation: The law prohibiting the breaking of the law that we cannot anywhere show has been broken (unless by “eavesdropping on American citizens” we are talking about in their role as incidental participants in legal foreign intel surveillance, in which case, courts have already ruled in the President’s favor) is crysal clear. Unfortunately, so is the law against sodomizing minors. But that didn’t happen here, either. And our OUTRAGED assertions that such buggering of kiddies might have happened—which is based entirely upon our mistrust of Uncle George and those creepy Rove-head puppets he brings over to the house when he babysits the kids—should be enough to force the institution of hearings. True, there is no evidence that a crime has been committed beyond the legal contention, made by opposing legal scholars, over what are the President’s inherent authorities under AUMF and Article II—but screw that noise. President Bush’s claim that he is not bound by the law (which, sure, he hasn’t really made that, but has instead said that he is guided by separation of powers and his position as CiC) is simply ASTOUNDING. Our democratic system depends on the rule of law, and not even the president can issue illegal orders that violate Constitutional principles. That, apparently, is left up to an activist judiciary and the legislative body who wrote FISA, which is now being used to try to subsume presidential war time powers to congressional control under a clear violation of the framer’s intent. But so what? Let’s DO THIS THANG!]
According to news reports, President Bush signed an order in 2002 allowing the NSA to monitor the telephone and e-mail communications of “hundreds, perhaps thousands, of people inside the United States” with persons abroad, without a court order as the law requires. Under the program, the NSA is also engaging in wholesale datamining by sifting through millions of calls and e- mails of ordinary Americans.
[Translation: Shortly after the 911 attacks, the President authorized Foreing Intel gathering under FISA, which followed the dictates set out in the electronic surveillance definitions included in FISA. Which would have been cool and all, provided it wasn’t, like, “hundreds, perhaps thousands” of people inside the US—which is where planning for the 911 attacks took place, and which is where embedded terror cells tend to, well, embed. Similarly, their cell strucures, which work under an “activation” scheme from foreign contact, had its rights violated when the President, as CiC, decided it would be a good idea to check for those activations in order to thwart potential attacks inside the homeland preemptively.
And as for that datamining bullshit, well, let’s just leave that to Radio Shack, City Bank, Best Buy, and internet porn cookies where it belongs!]
Journalist James Bamford, a plaintiff and one of the world’s leading experts on U.S. intelligence and the National Security Agency, said that “the spying program removes a necessary firewall that would prevent the kind of government abuse seen during the Watergate scandal.” Bamford was threatened with prosecution in the 1970s as he prepared to disclose unclassified details about illegal NSA spying on Americans in his book, The Puzzle Palace.
[Translation: James Bamford, an icon of the antiestablishent movement that followed the domestic abuses of Nixon and Hoover—and was responsible for the changes to the NSA that prevents the very abuses the President and the NSA are now being accused of—is admitting that he really did shit all to stop abuses. But we should listen to him now, because he’s still concerned that, hypothetically, with an agency with such powers as the NSA, there can be abuses.
Of course, you can find security abuses with something so large as the NSA, despite its constant oversight, both by its own attorneys, the DoJ, the DoD, the FISA review court, and Congressional briefings—but then, you can also find them in Sandy Berger’s socks and boxer shorts, as well as atop Chuck Schumers’ desk or Bill Clinton’s inbox.
And of course, the 70s were 30+ years ago; just because some of the ties and pork pie hats have come back in style doesn’t mean Harry Caul’s house is being bugged yet again.
But be that as it may...]
In the legal complaint filed, the ACLU said the spying program violates Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution.
The ACLU also charged that the program violates the Constitution because President Bush exceeded his authority under separation of powers principles. Congress has enacted two statutes, the Foreign Intelligence Surveillance Act and Title III of the federal criminal code, which are “the exclusive means by which electronic surveillance. . . and the interception of domestic wire, oral, and electronic communications may be conducted.”
[Translation: the ACLU has begged the question—primarly by asserting “spying” rather than intel gathering, and so setting up a law enforcement, domestic-arena strawman—in odrer to make the attendant claim that the program, about which they are unfamiliar with the particulars (and let’s face it, that’s the aim here, to get the classified elements revealed, which ain’t gonna happen), is violating free speech rights (it isn’t, speech is not prevented or controlled, in anything other than the soft sense that those engaging in speech that will provoke an attack are forced to be too circumspect; and fourth amendment rights, which again, there is not an iota of proof that any such violation has taken place—where due process has been denied American citizens specifically targeted by the program, or where an “unreasonable” warrantless search has taken place.
In fact, Bush and General Hayden and AG Gonzales have consistently argued the opposite—that in situations calling for such protections, this is precisely the time wherein the US has been most careful to follow FISA statutes and obtain warrants.]
The lawsuit, filed in U.S. District Court in the Eastern District of Michigan, seeks a court order declaring that the NSA spying is illegal and ordering its immediate and permanent halt. Attorneys in the case are Beeson, Jameel Jaffer, and Melissa Goodman of the national ACLU Foundation, and Michael Steinberg of the ACLU of Michigan. The lawsuit names as defendants the NSA and Lieutenant General Keith B. Alexander, the current the Director of the NSA.
[Translation: An immediate and permanent halt to a program not provably illegal and that is intended solely to protect national security under the powers granted the President (by congress, mind) to do just that is an attempt (and a baldly partisan and tactically tin-eared one at that) to undermine our national security apparatus while seeking a shift in the balance of powers. The heavyhanded way the ACLU and its fellow-travelers are insisting upon doing this—shutting down preemptively in advance of a trial that is founded on mere accusation what the administration and its legal apparatus has noted is legal (and has cited precedent and case law for) on the grounds that unproven hypotheticals can be conjured under which the program might not be legal goes against everything the ACLU supposedly stands for—most notably a willingness to predetermine guilt and work backward from there, national security consequences be damned.
But hey, this is President Chimpy, the Emperor Cowboy Supervillian we’re dealing with. And extreme circumstances call for extreme measures. Which is why there were no consequences for Superman when he broke his mandate and spun the world wildly backward to go back in time and save Lois Lane. Sometimes the ends just have to justify the means!]
More from AJ Strata, Stop the ACLU, All Things Beautiful, The Jawa Report, Daily Pundit, Dread PUndit Bluto, Mensa Barbie, The Uncooperative Blogger, A Blog for All, The American Mind, California Conservative, Debbie Schlussel, and Michelle Malkin
See also, Pete Dupont, “‘Better Than Well Said’” (h/t Terry Hastings)