Bush surveillance program was massive (AP report): Is there no accountability left?

Great Debates
1

I have another thread going on the possibility of Cheney having a personal assassination squad in GD. In that thread there were accusations of lefty loonies spouting all manner of conspiracy theories. So far Cheney’s personal assassination squad may be one and is speculation at best.

However it was noted in that thread that such things from that administration would hardly be surprising if proven true. While the thread took that turn (understandably I guess given the speculative nature of the accusation) I had hoped for more of a discussion on appropriate oversight in our government to ensure accountability for actions taken. An accountability I find sorely lacking. I started a thread on the possibility of disbarring Jay Bybee a few months ago along these lines. The responses were mixed.

I felt this new revelation deserved its own thread rather than get lost in one of those previous threads. I am wondering if anyone here considers the following report very disturbing? If so what accountability do they think should be present in our government? I understand the government needs to do secret things but who watches the watchers?

The quote below is just a sample…please read the whole article.

(Before anyone goes off on this being another Bush witch hunt…although I make no bones about despising Bush…note the following is from an Inspector General report and not just the musings of some liberal reporter)

Opinions?

2

Ultimately, unless someone is willing to prosecute the breaking of Federal law by Federal agents, this sort of thing is going to continue and it’s just flogging dead horses to whine about it. So far as I’ve ever seen in my life, the usual answer to such things is simply to double/triple/quadruple illegalize it and say that it will never happen again. But of course it’s meaningless to make something more illegal if no one cared in the first place.

But no one will prosecute it because you never know when something like that will be necessary. Or, even, maybe it was necessary. There’s no real knowing whether any of these organizations ended up saving thousands of lives each, legalities aside. Possibly not, but the point is that practicality generally wins over law, and lots of laws are generally considered to be impractical. They’re just kept on the books so everyone can look morally justified when they shut down a program, and tell the rest of the world how shocked, SHOCKED they are.

3

Robbery, murder, rape,theft and assault are the same way. People still whine about those things.

4

I’m not suggesting such surveillance shouldn’t be done (not as a flat never-ever-no-matter-what).

I am suggesting that someone needs to watch the watchers.

If such surveillance was necessary then why was it so covert it was hidden from the people who are meant to oversee such things? Is the Intelligence Committee that obstructionist?

Unrestrained power of this sort is scary. Visions of 1984 are conjured in my mind. Doubtless some will say it is not 1984-ish so why fuss? Seems to me there are lots of instances in history where people did not speak out, others did not demand curbs on unrestrained power thinking it was somehow in their interest to just let them go and then woke up one morning to find themselves in a world they did not recognize or like but far too late to do anything about it.

It’d be one thing if this was all done with the knowledge of relevant congressional figures. Even then I think we would have cause to worry. But done in a way that sidestepped the constitution and laws and the people who are supposed to apply some restraint if things go too far? Uh-uh.

Am I the only one who finds such revelations as in the OP disturbing?

5

But we do actually prosecute people for those crimes.

If you want to take a vote for how many people think we’ll actually see President Bush or Dick Cheney being tried for treason (or whatever crime it is to circumvent congressional oversight) in a real court, with real prison sentences as a possibility, then let’s go ahead and see what the result is. The answer is that no one thinks we’ll actually see that. And so they don’t make any effort to see it actually happen.

If you want something to change, the people have to demand someone’s head based on Rule of Law. Knowing that the law was broken but saying, “Shame on you!”, and nothing more is where the problem lies. Not with government.

Laws are only as effective as anyone cares to enforce them. Any number of checks and balances to the system to try and guarantee proper oversight is meaningless so long as Rule of Law is an “iffy” subject.

6

It really depends on what was actually being done.

If you go back and read declassified documents from earlier administrations, you’ll see that there are all sorts of classified programs of various sorts. ‘Collecting Data’ doesn’t really tell you much. The CIA collects huge amounts of data and correlates it and feeds it into computers and tries to develop models of all kinds of stuff. The NSA does the same thing. They always have. That’s mainly what intelligence agencies do.

Other administrations have even more extensive black operations that go beyond gathering intelligence. The Reagan administration waged economic warfare with the Soviet Union - sabotaging one of their major gas pipelines, conspiring with the Saudis to drive down oil prices to starve the Soviets of revenue, in an attempt to bring down the regime.

It really depends on exactly what they were doing. Which we don’t know.

7

Why does it depend on what they have done?

First, if it is just the normal cloak-and-dagger stuff they have always been up to why sidestep the oversight that was in place? As you note they’ve pretty much been doing this stuff all along. Did a Republican controlled Congress suddenly get weird and seek to stop them and endanger the country?

Second, isn’t it about sidestepping the oversight in place?

8

I think John Yoo is a good start to string someone up. Maybe some others like Jay Bybee.

I do not see Yoo as a sacrificial lamb. He has it coming. I’d like to see Bush/Cheney get it but I think they are near untouchable unfortunately.

Still, if the underlings see they get strung up by the nuts in the future they may be less willing to abet the adventures of their superiors who aren’t putting their necks out.

9

I don’t recall anyone being concerned over “collecting data”, it’s the “collecting data that is protected without a warrant and in violation of US law” where the problem lies. Simply waving your hand and calling breaking the law “collecting data” and trying the old “everybody does it” defense is, to my mind, very weak.

10

The linked article doesn’t say much. It’s a good read and a good debate, but there’s not a lot to go on. So, I can only give a broad overview.

First, regarding informing people, the article states: “Not enough relevant officials were aware of the size and depth of an unprecedented surveillance program started under President George W. Bush, let alone signed off on it, a team of federal inspectors general found.” (emphasis added) So, people were informed, but not the required amount.

Assuming foreign surveillance was going on outside the United States. Here’s the relevant law that would apply:

Art II - President has inherent power to manage foreign affairs.

*US v. Verdugo-Urquidez *- applies to non-resident aliens. The Fourth Amendment against search and seizure does not apply.

US v. Bin Laden - applies to US citizens living abroad. The Fourth Amendment does apply, the search has to be reasonable, but there is a “foreign intelligence exception” and you do not need a warrant. It applies when: (1) If the person is a foreign power/agent, (2) the surveillance is significantly for foreign intelligence purposes (Patriot Act changed significant to something lower, like primarily), and (3) the President or AG authorizes, then you don’t need a warrant.

re: John Yoo, it doesn’t have or link his memo, is likely arguing that FISA only applies domestically (it does), the President has inherent constitutional powers to manage foreign affairs, Congress has not enacted a statute limiting this, so the President is jut filling this void (which he can do when Congress is silent).

Domestic Survelliance, FISA applies and you need to get a special warrant from a special court. You don’t need probable cause, just need to show that the person is a foreign agent/power and a significant purpose of the intrusion is to gather foreign intelligence (can be a domestic reason too, just as long as one reason is foreign).

The above may not at all apply to what the article is talking about, but that is generally the law regarding foreign surveillance. Lastly, National security type law has/is changing rapidly since 2001, so I’m not against being corrected with new or more cases and statutes.

11

That’s not quite right, is it? Clearly, you quote correctly, but the article also states:

By law (something-or-other of 1947, I believe), Congress must be apprised of such programs. Assuming the quote I cited is true, not one of the people required (i.e., lawmakers) were informed.

To address the rest of your post, it is already known* that domestic surveillance (that is, not limited to foreign entities) took place (at least one Congressperson, a reporter, and a religious-affiliated anti-war group, IIRC; and that’s beyond the Muslim charity group to which the DOJ mistakenly faxed transcripts that the DOJ is attempting to keep out of court evidence on states-secret grounds). And, if I understand it correctly, your synopsis of “Domestic Surveillance” is what exists now (post passage of the 2007 FISA-modifying bill), not what existed between 2001-7.

Personally, I think the minimum that should be done is to restore some truth to the increasingly worn and falsely trite dictum mouthed by those in power: that “this is a country of laws” and that “no one is above the law”. Investigations, surely. Prosecutions, if warranted. Jail, if those involved are found guilty. And, like the OP, I don’t care to whom this extends. I’d expect at least a few Democrats to go down with a bunch of Republicans.

*I am happy to be corrected on any specific item above; the Bush years broke my outrage-o-meter so badly that I only maintain a broad pastiche of incidents in my head, not a detailed list. If requested, I’ll search for particulars.

12

I thought that was more of a coincidence. Like, “in other news.” I can’t really tell. Regardless, some lawmakers or no lawmakers, it would likely violate reporting procedures to the appropriate committee. Does anyone know the penalty for that? Is it a crime?

I described FISA/Domestic surveillance best I could in two sentences. There’s nothing wrong with electronic surveillance of anyone domestically as long as the primary purpose is to gather foreign intelligence and that person is a foreign power or agent of foreign power (that can be US citizen or foreigner). I think it’s still correct, but FISA is a mess (plus, we still haven’t heard from Supreme Court on whether it’s even constitutional and it’s been around since the 1970’s). Didn’t the newer FISA bills actually make FISA “worse.” With more FISA warrant exceptions.

Again, I don’t know where we stand today or what exactly FISA law was in each given year. Also, I’m only talking about electronic survelliance b/c I think that’s what the article was talking about, FISA applies to a couple other types of survelliance/searches too. FISA hurts my head.

13

Just posted this in the concurrent thread, from the NY Times…

\http://www.nytimes.com/2009/07/12/us/politics/12intel.html?_r=1&hp

Why, that little scamp! Whatever was he up to now?

14

This jumps out at me from the article, well, after the good stuff at the beginning of course.

I’m still unclear if all things have to be disclosed to the intelligence committee, the only variance being the more secret the program, the less people in the committee are required to know, OR is there some super secret stuff that needs no disclosure at all. The above quote is unclear (I’m thinking it all has to be disclosed by statute). The articles never list the actual statute (except one) or amendment to it or Presidential Orders or anything.

The 1991 Oversight Reforms regarding reporting non-covert and covert actions (I don’t think intelligence gathering is a covert action though), state if no prior notice is given, then it has to be “timely.” I don’t know what timely means (hard to imagine it means years). Plus, there is some questionable constitutional arguments as to whether super secret stuff has to be disclosed at all (this argument is addressed in various Signing Statements to these reporting statutes; I’m guessing these might be the dubious Yoo memos and his interpretation of what’s required)

Regardless, that only applies to the reporting, and doesn’t shed anything on whether this program was actually legal or not in the first place.

One last thing that’s not related, but I’ve been meaning to mention in my posts: Rep. Jane Harman’s name has appeared over and over again in articles I’ve read. She’s always investigating the executive or intelligence agencies long before anyone knows there’s anything wrong. I’ve haven’t heard of her until recently, but I applaud what she’s done so far.

15

My question would be whether or not things have changed significantly under Obama. People were bitching about Project Echelon during Clinton.

16

The thing is, I’m still unclear if the process of oversight WAS sidestepped…or whether Bush et al simply did the same things that other presidents did (and that Obama seems to want to continue), and is getting more ding-age simply because, well, he’s Bush. There seems to be a lot of (partisan) talk going on in the Congress on who was told what when, with both sides attempting to drown out the other. My feeling atm is that this is a tempest in a tea kettle, and is being politically motivated.

The way it’s supposed to work, from my perhaps limited understanding, is that really ‘black’ type projects aren’t supposed to be shared with the entire Congress, or even (necessarily) the entire Congressional Intelligence committee. Informing only a small (bi-partisan) Congressional sub-committee is enough…and that’s how it’s always worked. I’m unsure if this sub-committee WAS informed…they seem to have been, and if so, then that’s all the law says needs be done (at the moment anyway). If that sub-committee wasn’t kept in the loop at all, then that would be (afaik) a violation of the law, and could be prosecuted as such. That this hasn’t been done indicated, to me at least, that this is a political pissing contest, and not a serious accusation. That Obama seems to be saying the same thing indicates, to me, that this is a pissing contest that is not only partisan, but REALLY involves the same old power struggle between the President and the Congress…even though, now, the President happens to be a member of the same party as the majority in the Congress, it’s still the same game.

Anyway, as I said in the other thread, there doesn’t seem to be enough meat on the bone to really know what’s going on…yet. I will await developments. If Bush et al DID violate the law, then I hope something actually gets done. I’m not exactly holding my breath though…

-XT

17

Not responding to this quote directly, but using it as a jumping off point to a uhh point I made earlier. Executive vs. Congress

The Yoo memo. I haven’t’ read it, because I haven’t found it. I referred to the Yoo argument in a previous post above when I said “Plus, there is some questionable constitutional arguments as to whether super secret stuff has to be disclosed at all (this argument is addressed in various Signing Statements to these reporting statutes; I’m guessing these might be the dubious Yoo memos and his interpretation of what’s required”

But here’s what the argument is (I’m guessing, but I’m fairly sure).

Simply (and very basically), Yoo is saying FISA is a federal Statute that limits the President to do certain things. That is true. He is arguing, the Executive, has an inherent *Constitutional * power to manage foreign affairs. This includes surveillance. Per the Supremacy clause, a statute does not trump the Constitution. Therefore, the President’s power’s trump statutes enacted by Congress that impeded on his constitutional powers. If Congress wants to change this, change the Constitution (or the US Supreme Court needs to re-interpret the Executive powers).

The argument is “valid” but not nearly as strong as it seems here. It involves various interpretations of previous SC decisions. It’s just all interpreting the law to fit into today’s time. The law has to catch up. The executive took advantage of voids in the law and pushed them to the limit.

I’m guessing Bush was a believer in the adage, “The power to wage war, is the power to wage war successfully”

18

Meet the New Boss…

Same as the old boss…

19

Oh, noes! My golden idol is tarnished! Why, he’s just exactly like Bush, except for not being a moron!

20

In some ways, maybe, but I trust him not to start any unnecessary wars. That’s change you can believe in! :wink: