On the Bush administration's abuse of power

Since taking office, President Bush has shown a reckless disregard for the rule of law.  He has directed the National Security Agency to wiretap Americans without a warrant in violation of two federal statutes enacted by Congress and the Constitution, violated long-standing treaties ratified by the Senate to protect basic human rights, and has repeatedly tried to thwart any judicial check on his radically expansive claim of inherent power to violate the privacy and liberty of anyone he designates, including unilaterally concocting tribunals that lack basic due process protections.  Some courts have rebuked these abuses of power, but the president has been emboldened by the general unwillingness of Congress to act as an independent check on executive branch excesses.

Congress must stop serving as a lapdog to the president and stand up against the ongoing abuses of power by the Bush administration.  The nation is on the wrong track:  we are less safe and less free when the executive branch acts without any check.  Congress must uphold the Constitution and protect our freedoms — even in times of conflict.  Some lawmakers are poised to push ill-conceived legislation that would put partisan politics ahead of preserving our Constitution.  We all must speak out against Congress wasting any more time on symbolic, divisive votes or on exploiting the anniversary of 9-11 and the public's fears.

When lawmakers return to Washington next week, they must restore the rule of law.  Congress should not legalize a warrantless surveillance program that does not protect individual rights and does not provide any meaningful checks on executive power.  Congress should also not give legislative sanction to military commissions rebuked by the Supreme Court.  Additionally, Congress should reject any effort by the administration to create new powers to arrest and detain Americans without charge, in the wake of the United Kingdom airline investigation.  The upcoming election is no excuse to rush through legislation that would alter the very freedoms and protections that define us as a nation.

As Congress deals with these issues, it must live up to its responsibilities rather than pander to the lowest common denominator of the politics of fear and be reduced to a pawn of any president.  Lawmakers must uphold the Constitution and maintain our tradition of checks and balances.  More specific information about these abuses of power is outlined below.

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NSA warrantless surveillance

The Senate Judiciary Committee is expected to vote on S.2453, the “National Security Surveillance Act.”  Crafted by Vice-President Dick Cheney and Chairman Arlen Specter (R-PA), the bill would give the president the option of complying – or not – with the Foreign Intelligence Surveillance Act (FISA) and its Fourth Amendment protections.  The House Judiciary Committee is also expected to consider a companion bill, H.R. 5825, which would similarly reduce judicial checks.  Specifically, the bills would:

* Allow the NSA to examine international phone conversations and e-mails of American residents and businesses, without any judicial approval and without any evidence the target is conspiring with al Qaeda;
* Authorize warrantless physical searches of Americans' homes and businesses without any judicial check; and
* Allow for the electronic surveillance of Americans without the warrants needed to protect the individual rights of people in the US.  

Additionally, the Cheney-Specter bill would fundamentally alter the balance of power by vesting in the president statutory authority to unilaterally designate any American for indefinite and secret monitoring of phone conversations and e-mails, both domestic and international.  And, the bill would change federal law to require courts to construe FISA not to limit presidential discretion.  Federal law now states that FISA is the exclusive means by which the government can engage in national security electronic surveillance.  The new bill eliminates the exclusive means language and allows the president to ignore FISA when he chooses.  With these changes, a president already operating outside the lines of the law would be enabled to argue that his claim of inherent power to monitor anyone he chooses has been endorsed by Congress, and thus his power would be at an uncheckable zenith.  That is the wrong message to send to this administration.    

One of the main misconceptions about the Cheney-Specter bill is that the bill is a “compromise” that would restore judicial review.  Under the bill, review of the warrantless surveillance program by the FISA court is optional for this president and not binding on future presidents.  Even this optional process to get court approval for so-called program “warrants” through a secret, non-adversarial process is hopelessly flawed: the FISA court would not be told the names of Americans monitored, the reason for monitoring, the method (bugging homes or tapping phones), or even whether each surveillance is producing useful intelligence. If passed, this would be a blank check from Congress.  Indeed, the administration has said it will sign the bill only if none of these provisions change.  And, the bill would thwart other courts from hearing Americans' constitutional claims by transferring all cases to the FISA Court of Review, which is appointed by the Chief Justice.  It is particularly noteworthy that lawmakers with stalwart records on security, like Senator Dianne Feinstein (D-CA) and Congresswoman Jane Harman (D-CA), who have been briefed into the program, have repeatedly stated that individual warrants could readily be obtained under the current FISA.  The bottom line: there is no need for these bills.  

The underlying problem with any legislation on NSA warrantless wiretapping is that Congress has yet to hold any real, substantive investigation into the issue.  Lawmakers must not legislate in the dark on an issue with such broad implications for the privacy rights of all Americans.  Just recently, a federal judge in Detroit found the program to be illegal and unconstitutional.  The court, in a lawsuit filed by the ACLU, noted that, “there are no hereditary Kings in America and no powers not created by the Constitution.”  No president has inherent power to break the law or consider the Constitution optional.
 
Military commissions at Guantanamo Bay and elsewhere

In late June, the Supreme Court held in Hamdan v. Rumsfeld that the military commissions at Guantanamo Bay created by President Bush were illegal.  The court said that the rules violated Common Article 3 of the Geneva Conventions, the most basic international standards regarding treatment of the detainees being held indefinitely.

Just as with warrantless wiretapping, rather than choose to bring his actions within the law, the president has asked Congress to enact changes that still fail to respect the rule of law.  The White House has already circulated draft legislation that would essentially ratify the illegal military commissions and fails to meet the standards prescribed by the Supreme Court.  Specifically, the White House proposal would:

* Gut the enforceability of important Geneva Convention protections;
* Rewrite the War Crimes Act to prohibit the government from prosecuting any civilian who illegally authorized or carried out the kind of cruel, inhuman and degrading treatment, such as waterboarding, that was found permissible by top Bush administration officials;
* Allow the use of evidence obtained through cruel, inhuman, and degrading treatment during interrogations;
* Take the unprecedented step of allowing the federal government to convict defendants based on secret evidence that they cannot see;
* Bar defendants from being present at their own trial; and
* Allow the use of the kind of hearsay evidence banned from every military and civilian court in America.

If Congress does enact the draft White House bill, the Supreme Court would likely invalidate it.  In testimony before the Senate Armed Services Committee, the current Judge Advocates General for the four military services urged close adherence to the court-martial procedures, a system the Supreme Court found provides sufficient due process protections.  In fact, all four said that no one should be prosecuted based on evidence that they cannot see, and that all coerced evidence should be banned from the trials.  Indeed, there already exists a format that these detainees could be tried under – the rules established under the Uniform Code of Military Justice.  

America's response to the U.K. airline terrorist plot

Regarding the U.K. airline terrorist plot, administration officials have already suggested that the government needs even greater power to conduct warrantless surveillance and detain Americans without charge.  However, accounts indicate warrants were used, and there is no disputing that FISA has already been changed numerous times since 9/11, including increasing the ease of getting warrants for cell phones and multiple-point surveillance.  If an American is conspiring with al Qaeda, there are already emergency provisions in place and a warrant can easily be obtained.  FISA's procedures, which represent Congress' attempt at a reasonable balance between the need for surveillance and constitutional rights, help to protect us by ensuring that precious anti-terrorism resources are focused on actual threats and not squandered on people who have done nothing wrong.