Presidential Dictatorship

Earlier this week the Office of Legal Council released memos outlining policies from the Bush administration.

From Marc Ambinder...

On Monday, the Obama administration released nine previously secret legal opinions crafted by the Office of Legal Counsel to enhance the presidential powers of George W. Bush. The legal memos represent the most comprehensive demonstration yet of the sweeping definition of presidential power approved by Bush administration lawyers in the months after 9/11. They also lend added urgency to Wednesday's Senate hearing on the possible formation of a truth commission to investigate potential abuses of power in the Bush White House.

Scott Horton of Harper's writes...

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations.

It is Horton's conlcusion that is most shocking...

We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.

From Andrew Sullivan...

Jack Balkin sums up the legal and constitutional view that prevailed from 2001 to 2009:

The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.

These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents.

Investigate. Expose. Prosecute.

The theory of Unitary Executive and Yoo

John Yoo, the lawyer who wrote the 2003 memo authorizing torture by the United States. is speaking today at the University of Iowa to faculty of the College of Law. However, torture is just the tip of the ice berg. Yoo believes in a radical legal theory on presidential power called

Yoo was working as the deputy assisatant general in the Justice Department's Office of Legal Counsel in 2001. After the 9/11 attacks, Yoo published a memo that said the president's power is unlimited on matters related to terrorism and national security.

From How Would a Patriot Act by Glenn Greenwald (page 40)...

The bulk of the memo was devoted to an analysis of the president's powers to direct the movement of the armed forces as part of foreign wars. But Yoo contended that the president's powers were not confined only to the battlefields or wars; he emphatically argued that the president has the power to make any decisions with regard to all matters relating to defense of the country and that neither Congress, nor the courts, nor any longstanding laws can restrict or limit those decisions in any way.

Out of this theory of Unitary executive, came the disregard of the FISA law and domestic wiretapping, ignoring the Geneva Conventions and torture, and holding prisoners in legal limbo without a trial.

This should concern every American, regardless of political leanings. Now that there is a Democrat in the oval office, Yoo's radical theory is precedent.

Feingold Says Thank You for Action on FISA

From True Majority...

Feingold: Telecom Immunity Could be a Cover Up of an Impeachable Offense

Sen. Russ Feingold spoke yesterday at the New America Foundation in Washington about the nation’s intelligence needs. Feingold was asked the latest FISA bill that includes immunity for telecom companies.

“I do think this is a total farce with regard to the immunity [for telecommunications companies]. It basically guarantees the immunity,” Feingold said. “It doesn’t simply have the impact of potentially allowing telephone companies to break the law. It may prevent us from ever getting to the core issue … which is the president ran an illegal program that could’ve been an impeachable offense.”

FISA Capitulation

Olbermann talks with George Washington law professor Jonathon Turley...



Rep. Tom Udall (D-NM) who is running for US Senate in New Mexico released a great statement explaining his decision to vote against the so-called compromise on FISA.

The FISA bill we considered today would compromise the constitutionally guaranteed rights that make America a beacon of hope around the world.

Today's vote was not easy. I stood up to leaders of my own party and voted against this bill, because I took an oath to defend Americans and our Constitution, and it was the right thing to do.

That duty is most important when it is most difficult. We can protect our nation while upholding our values, but unfortunately, this bill falls short.

Feingold and Dodd on the FISA Cave In

Yesterday, Sen. Russ Feingold released a statement about the Democratic leadership caving in on the FISA to allow Telecom immunity.

The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President’s illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.

And from Sen. Chris Dodd...

I cannot support the so-called ‘compromise’ legislation announced today. This bill would not hold the telecommunications companies that participated in the President’s warrantless wiretapping program accountable for their actions. Instead, it would simply offer retroactive immunity by another name.

“As I have said time and time again, the President should not be above the rule of law, nor should the telecommunications companies who supported his quest to spy on American citizens. I remain strongly opposed to this deeply flawed bill, and I urge my colleagues in Congress to join me in supporting American’s civil liberties by rejecting this measure.”

Boswell and Blue Dogs Revolt, Democrats Cave on FISA to Allow Telecom Immunity

A compromise has been reached in Congress on the FISA bill. The so-called compromise bascially allows immunity to Telecom Companies for illegally spying on Americans.

The agreement would also pave the way for companies such as AT&T Inc. and Verizon Communications Inc. to shed the nearly 40 lawsuits they face for allegedly participating in a prior version of the NSA program, which have cast a shadow over their reputation on Wall Street and Main Street. To win immunity, they would have to pass review from a U.S. District Court.

It faces hurdles to becoming law, namely whether it will have enough support from other lawmakers in both parties in the House. Telecommunications companies, which have lobbied lawmakers aggressively in recent weeks, support the compromise as does the White House.

Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed.

Yesterday the New York Times had an editorial saying this agreement is unnecessary and a threat to the Bill of Rights.

This week, the White House and Democratic and Republican leaders on Capitol Hill hope to announce a “compromise” on a domestic spying bill. If they do, it will be presented as an indispensable tool for protecting the nation’s security that still safeguards our civil liberties. The White House will paint opponents as weak-kneed liberals who do not understand and cannot stand up to the threat of terrorism.

The bill is not a compromise. The final details are being worked out, but all indications are that many of its provisions are both unnecessary and a threat to the Bill of Rights. The White House and the Congressional Republicans who support the bill have two real aims. They want to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.

Democratic leadership in the House has caved on this bill because a handful of Blue Dog Democrats, including Iowa's Leonard Boswell.

A potential revolt by a group of Democrats pressed party leaders into compromising on a rewrite of electronic surveillance rules that could come to a House vote by week’s end, a top Democrat said Wednesday.

The House will vote on this tomorrow. If you live in Iowa's 3rd district, call Leonard Boswell and tell Telecom companies should not get immunity for breaking the law and ask him to vote against this bill.

Rep. Leonard L. Boswell, D-Iowa -- Phone: (202) 225-3806

Ilegal Warrantless Spying Started Before 9/11

Many people don't realize that Bush violated FISA and ordered warrantless wiretaps before 9/11...

From Daily Kos...

Former chief executive Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks, according to court documents unsealed in Denver this week. [link]

The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court. [link]

The media doesn't help the situation when they repeat the Bush administration's lies...

AP:

Bush says the House version "would cause us to lose vital intelligence on terrorist threats" and would not give liability protection against lawsuits to telecommunications companies that cooperated with the government after the Sept. 11, 2001 terrorist attacks.

NYT:

Some 40 lawsuits are pending in federal courts, charging that by cooperating with the eavesdropping program put in place after the Sept. 11, 2001, attacks, the phone companies violated their responsibilities to customers and federal privacy laws.

AP:

Bush opposes it in part because it doesn't provide full, retroactive legal protection to telecommunications companies that helped the government eavesdrop on their customers without court permission after the Sept. 11, 2001, terrorist attacks.

Boswell's Moment of Truth

At this very moment the House is voting on an updating FISA legislaton. At stake is immunity for telecom companies for participating in illegal wiretapping of American citizens. Bush and Republicans have been trying to strike up fear while defending retroactive immunity for telecom companies, while the other side is defending the rule of law and sticking up for the Constitution.

The way Leonard Boswell votes on this bill will be very telling. On January 28th, Boswell was one of 21 Blue Dog Democrats that wrote a letter to Nancy Pelosi urging her to include immunity for telecom companies. Adding to that, Boswell has received money from telecommunications PACs including $5,000 from AT&T.

However, the net roots has been putting pressure on these 21 Blue Dogs, and Boswell is in the middle of a tough primary race with Ed Fallon. Boswell has flipped on a number progressive issues since it came clear that Fallon would be challenging him. The question is if Boswell will flip again?

Shielding Telecoms from any Responsibility

The Houston Chronicle summarizes the debate on terrorist surveillance, domestic spying, and telecom immunity...

What this dispute is really about is shielding telecoms from any responsibility for enabling surveillance of customers that might have violated their constitutional rights to privacy.

It's understandable that Bush would want to prevent court scrutiny of a potentially illegal spying program that operated outside the law for so long. But the administration is putting the protection of corporations and partisan posturing above the constitutional rights of the American people.

But they might not want to break the law in the future

That is the reason George Bush gave for granting telecom immunity at a press conference this morning.

You can't expect the phone companies to participate if they feel that they are going to be sued... How can you listen to the enemy if the phone companies aren't going to participate with you?

This article from the Economist responds to this claim...

How are you going to listen? Well, presumably by way of lawful court orders or emergency certifications, as authorised under the old FISA statute, and now also on the independent authority of the attorney-general and director of national intelligence even without a court order, assuming some version of those expanded powers eventually passes. When surveillance is conducted pursuant to the law, there is no question of whether telecom firms will "cooperate" or "participate", like children at day camp. They will comply, and they will do it because they are required to.

The worry about "participation" makes sense only if you anticipate asking these companies to turn over information outside the law, without a court order or any statutory authority. But that is precisely why we have laws establishing penalties for unauthorised data disclosure: To deter them from helping the government to circumvent the law. If you think they should help the government circumvent the law, then it seems you ought to stop poncing about with ad hoc amnesties and simply do away with the data disclosure statues, at least as they apply to information sharing with intelligence agencies.

Responding to Republican Lies about Domestic Spying

Connecticut Bob made this great response to an ad being run by a Republican special interest defending domestic spying and granting telecom immunity.

Upholding the Constitution

Fallon Opposes Telecom Immunity While Boswell Takes Their Money

Ed Fallon is in favor of tracking down terrorists. However, he isn't in favor of immunity for telecom comapanies who knowingly broke the law.

I am opposed to giving immunity to the telecom companies. This is an area where Boswell has repeatedly sided with Bush and against his fellow House Democrats, as when he voted for the Protect America Act and the reauthorization of the PATRIOT Act. I am critical of his record because I believe such legislation is too sweeping in granting new police powers to the government and, as a result, infringes on the civil rights and liberties of Americans.

Boswell on the other hand likes the telecom companies because they help fund his campaign. AT&T gave Boswell $5,000 in donations last year.

So how does Boswell repay these telecom companies? He writes a letter to Democratic leadership in the House saying that he will side with the Republicans and Bush and won't vote for telecom immunity.

Republicans, FISA, and Telecom Immunity

From Matthew Yglesias...

It is fascinating that the Republican Party would rather allow what they believe to be a critical national security law lapse than allow it to be extended without the extension containing a rider immunizing large telecommunications firms from the consequences of prior illegal activity. It's almost as if the Republican Party exists to serve the interests of large business enterprises and very wealthy individuals, and tends to use national security and cultural anxieties as a kind of political theater aimed at securing votes so that they can better pursue their real agenda of enriching the wealthy and powerful.

Feingold explains FISA

From Open Left...

Attorney General John Edwards

Robert Novak is saying that Barack Obama has had discussions with John Edwards about Edwards being the Attorney General in an Obama Administration.

"Illinois Democrats close to Sen. Barack Obama are quietly passing the word that John Edwards will be named attorney general in an Obama administration," according to Robert Novak.

The appointment of Edwards "would please not only the union leaders supporting him for president but organized labor in general. The unions relish the prospect of an unequivocal labor partisan as the nation's top legal officer."

"In public debates, Obama and Edwards often seem to bond together in alliance against front-running Sen. Hillary Clinton. While running a poor third, Edwards could collect a substantial bag of delegates under the Democratic Party's proportional representation. Edwards then could try to turn his delegates over to Obama in the still unlikely event of a deadlocked Democratic National Convention."

Novak isn't the most popular reporter amongst Democrats, but I think Edwards as Attorney General is an excellent idea. Taking on the corporate interests that control Washington DC has been the theme of Edwards' campaign. As Attorney General, Edwards would have the ability to investigate and hold accountable corporations that have abused the system.

Obama could name Edwards as his choice for Attorney General before the general election and Edwards could campaign on the need to restore the Constitution when it comes to domestic spying, torture, and Habeas Corpus and against corruption in government.

Dodd Stands Up for the Constitution on FISA

Chris Dodd is prepared to fillibuster debate on the FISA if it includes retroactive immunity for telecom companies that knowingly violated the law.

Here is video of Dodd speaking on the Senate floor today. The


Bleeding Heartland and Iowa Independent have some more info on this bill and Dodd's stand.

**Update**
Harry Reid tabled the FISA bill and they will discuss it early in January.

From Daily Kos...

This is an important development and will hopefully allow the opposition to telco amnesty to convince enough Senators that providing blanket immunity to these companies who broke the law really doesn't do much to keep us safe.

Sen. Dodd responds...

"Today we have scored a victory for American civil liberties and sent a message to President Bush that we will not tolerate his abuse of power and veil of secrecy," said Dodd. "The President should not be above the rule of law, nor should the telecom companies who supported his quest to spy on American citizens. I want to thank the thousands of Americans throughout the country that stood with me to get this done for our country."

Thanks to Sen. Dodd (and Feingold, Harkin, and others) for standing up for the constitution.

The Oath of Office

You often hear politicians say there number one duty is to protect the American people and they are flat out wrong. All you have to do is read what it says in the oath of office to figure out what their number one duty is while in office.

Chris Dodd wrote about this at Huffington Post and tells why it is vital to support the constitution and explains why is planning to stop Bush's domestic spying under the FISA law.

As required by Article 6 of the U.S. Constitution, Members of Congress are bound to support the Constitution. We take the following oath: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter."

As the representatives of the American people, our job is in many ways quite simple: to "support and defend the Constitution of the United States against all enemies, foreign and domestic." There's no question in my mind that Democrats were given a majority in both the House and the Senate based on their promises to change the course of the country. We were elected to strengthen the nation by ending this war, restoring our standing in the world and returning the nation to an adherence to the rule of law. An integral part of that mandate was to reverse and stop the Bush Administration's assault on the Constitution.

Yet, we today are faced with the possibility that the Senate will see a renewal of the Foreign Intelligence Surveillance Act that enables the Bush Administration to broadly eavesdrop on American citizens and provides for retroactive immunity for telecommunications companies that helped them violate civil liberties and the law.

The Constitution of the United States belongs to the American people, not to the Bush administration. It is our responsibility as Senators and Congressmen to stand up and fight for it.

That's why I announced last week that I would put a "hold" on any FISA reform legislation that includes retroactive immunity for telecom companies -- and why, if my hold is not honored for some reason by the Senate Leadership, I pledge to filibuster to stop telecom amnesty from becoming law.

I am grateful someone is standing up for the constitution.

Forget Obama, Looking to Dodd To Take the Big Shots

Kos has some strong statements for Obama about actually standing up on key issues instead of just talking about change. The issue at question is the FISA bill that would allow immunity to telecom companies that broke the law and Chris Dodd being the only candidate/Senator that is speaking out on it.

Losing faith in Obama.

If you look around the liberal blogs today, there's a lot of frustration with the Senate bill to grant immunity to telecoms who have helped the Bush administration illegally spy on Americans. High profile bloggers like Glenn Greenwald, Markos Moulitsas, Atrios, Jane Hamsher, and Big Tent Democrat at MyDD have been urging their readers to put pressure on the Senate to block the bill by contacting...Chris Dodd.

If anyone from the Obama campign is paying attention, this should serve as a wake-up call. A representative cross section of the liberal blogosphere no longer thinks Barack Obama is willing to stand up to the Bush Administration [...]

The Obama campaign has been playing it safe for months now, so it should be no surprise that the base no longer expects him to, in the words of his campaign, "challenge the status quo and get results". It's not too late for Obama to turn things around. I still think Obama would make a fantastic president, but if he wants his grassroots-fueled campaign to regain some momentum, he needs to start by recognizing that people no longer see him as the go-to guy to buck the Washington establishment and be a champion for change.

Yeah, for a guy who claims he's going to "challenge the status quo", Obama sure as heck has done none of that as of late.

I'm tired of words. At this point, the only thing that speaks is action.

Dodd is putting a hold on the FISA bill, where he released this statement...

The Military Commissions Act. Warrantless wiretapping. Shredding of Habeas Corpus. Torture. Extraordinary Rendition. Secret Prisons.

No more.

I have decided to place a "hold" on the latest FISA bill that would have included amnesty for telecommunications companies that enabled the President's assault on the Constitution by illegaly providing personal information on their customers without judicial authorization.

I said that I would do everything I could to stop this bill from passing, and I have.

It's about delivering results -- and as I've said before, the FIRST thing I will do after being sworn into office is restore the Constitution. But we shouldn't have to wait until then to prevent the further erosion of our country's most treasured document. That's why I am stopping this bill today.

It seems Edwards and Dodd (and sometimes even Richardson and Biden) have been consistently leading on the issues this campaign, while it seems Clinton and Obama are reacting and playing it safe. Obama has lead on lobbysist reforms, but that was a key issue in the 2006 election and not in the 2008 election. For Obama to break out, he might to take hold of another key issue this campaign and make it his own.