08 February 2006

Marjorie Cohn: Bush mouthpiece defends illegal spying

In a column for truthout, Marjorie Cohn elaborates on creepy torture fetishist Alberto Gonzales's lame, worthless, unsworn appearance before the Senate Judiciary Committee regarding Bush's illegal spying.

No need for an oath. So you can't prosecute him for lying. Neat trick, huh?

This is the new system of "checks and balances".

An excerpt:
Attorney General Alberto Gonzales was called before the Senate Judiciary Committee yesterday to explain why George W. Bush's program of warrantless spying on Americans is lawful.

Before Gonzales began his testimony, the committee voted along party lines to dispense with the oath. Thus, if Gonzales were to lie, he could not be convicted or even charged with perjury, which requires the lie be made under oath. Why would the Republican senators insist that Gonzales not be sworn to tell the truth unless they expected him to lie?

Gonzales testified that Bush authorized his "Terrorist Surveillance Program" in late 2001, and has renewed it every 45 days since then. The program allows the National Security Agency to eavesdrop on telephone and computer communications of Americans in the United States if the NSA decides there is probable cause to believe that one party is a member or agent of al Qaeda or an affiliated terrorist organization, provided one party to the conversation is overseas.

The program is so highly classified that Gonzales refused to tell the senators how many US citizens' emails or phone calls had been intercepted, whether there have been abuses, and whether anyone had been disciplined for abuses.

Bush established this program to circumvent the Foreign Intelligence Surveillance Act. Congress enacted FISA in 1978 in response to the Nixon administration's abuses of national security wiretaps, which it used against its domestic opponents under the guise of conducting counterintelligence investigations. A senate committee chaired by Idaho Senator Frank Church documented the NSA's abuses that led to the enactment of FISA.

FISA requires that the government convince a judge that there is probable cause to believe the target of the surveillance is a foreign power or the agent of a foreign power. FISA specifically allows for warrantless wartime domestic electronic surveillance, but only for the first 15 days after Congress declares war.

By its express terms, FISA provides that FISA and specified provisions of the federal criminal code (which governs wiretaps for criminal investigation) are the "exclusive means by which electronic surveillance … may be conducted."

FISA anticipates the need to act quickly by allowing a warrantless wiretap, provided the government applies for a FISA court order within 72 hours. However, Gonzales testified that the FISA procedure was "burdensome." He cited the paperwork as an impediment to the "nimble" gathering of intelligence. Although both the Department of Justice and the NSA have batteries of lawyers, Gonzales said we "can't afford to pose layers of lawyers" in the process.
[Read more.]

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