# The Bush Administration Trashes Civil Liberties of Americans **URL:** \ **Category:** The BBQ Pit\ **Created:** [December 16, 2005, 3:02am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856 "2005-12-16T03:02:51Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Binarydrone](https://avatars.discourse-cdn.com/v4/letter/b/3da27b/32.png) [@Binarydrone](https://boards.straightdope.com/u/Binarydrone)\ **Post date:** [December 16, 2005, 11:27pm UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/81 "2005-12-16T23:27:05Z")
> [@Bricker](#): > > Well, how you feel is not how I feel. > > So how do we decide? > > That’s why we have law. So that clear lines may be established for what is, and is not, a reasonable expectation by you as a tax paying and law abiding contributing member of society. … It isn’t that I don’t more or less get that, the problem that I have is that in this case and cases like it the reason that we wind up with a law is because some power hungry piece of crap had to go and try to push things too far. Also, I think that once again we may be using the same words but meaning them very differently. Re: reasonable expectations especially. This is, to me, a “what does the word reasonable mean in the English language” question. I think that you are using a more lawyerly meaning. For me, it is a reasonable expectation to go through my day and do my best to be lawful and at the end of the day not have random spooks listening to my phone calls and digging through my trash. Go figure. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [December 17, 2005, 12:42am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/82 "2005-12-17T00:42:53Z")
Again, note the deliberate emphasis on **foreign** intelligence. Note also the requirement for **probable cause.** [http://www.fas.org/irp/nsa/standards.html](http://www.fas.org/irp/nsa/standards.html) The following Report was required by the FY 2000 Intelligence Authorization Act, and was transmitted to Congress at the end of February 2000. (U) In the Foreign Intelligence Surveillance Act (FISA) and Executive Order (E.O.) 12333, Congress and the Executive have codified this balancing. Both documents reflect a deference to U.S. persons’ rights by closely regulating the conduct of electronic surveillance that either targets U.S. persons or may result in the acquisition of information to, from, or about U.S. persons. For example, in order to conduct electronic surveillance against a U.S. person located within the United States, **FISA requires the intelligence agency to obtain a court order from the Foreign Intelligence Surveillance Court**. If the United States person is abroad, the Executive Order requires that the Attorney General approve such surveillance. **In both instances, generally speaking there must be probable cause 5 that the target is an agent of a foreign power.** 6 In addition, the information sought by the surveillance must be **foreign intelligence** that cannot be obtained by other less intrusive collection techniques. … Information about a U.S. person who is not an approved target, if lawfully acquired incidental to the authorized collection, may be retained and disseminated if it amounts to foreign intelligence or counterintelligence; **otherwise, it may not be retained or disseminated. …** (U) As alluded to above, FISA is the statutory regime governing electronic surveillance within the United States for foreign intelligence purposes. Enacted in 1978, FISA defines four types of electronic surveillance requiring Court authorization. The Act **further mandates the filing of an application approved by the Attorney General setting forth probable cause that the target of the proposed electronic surveillance is either a foreign power or an agent of a foreign power** as defined by the statute. The **purpose must be to gather foreign intelligence information, and a certification to that effect by a senior Executive Branch official must accompany every application. …** (U) E.O. 12333 **prohibits the collection, retention, or dissemination of information about U.S. persons except pursuant to procedures** established by the head of the agency and approved by the Attorney General. Each of the intelligence agencies has promulgated such procedures. (See the appendices in the classified version of this report.) The CIA procedures are embodied in Headquarters Regulation (H.R.) 7-1 entitled, “Law and Policy Governing the Conduct of Intelligence Activities.” NSA is governed by Department of Defense Directive 5240.1-R, “DoD Activities that May Affect U.S. Persons,” including a classified appendix particularized for NSA. The guidelines are further enunciated within NSA through an internal directive, U.S. Signals Intelligence Directive 18. The FBI procedures are contained in “Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations.” Any changes to the procedures implemented pursuant to the Order require Attorney General approval, and such changes are also brought to the attention of the congressional intelligence committees as well as the Intelligence Oversight Board of the President’s Foreign Intelligence Advisory Board. ---
**Author:** ![Updike](https://avatars.discourse-cdn.com/v4/letter/u/ec9cab/32.png) [@Updike](https://boards.straightdope.com/u/Updike)\ **Post date:** [December 17, 2005, 3:51am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/83 "2005-12-17T03:51:02Z")
> [@Blalron](#): > > I sometimes wonder if our system would be better if we allowed advisory opinions from the courts. If a difficult legal issue came up, I’d rather it be cleared with the courts ahead of time (or rejected) instead of the executive branch shrugging their shoulders, saying “fuck it, maybe it’ll fly” and going ahead with it anyway. What do you think? I think that the President’s legal advisor is the Attorney General, not the courts, and that seeking “advisory opinions from the courts” “ahead of time” would be a violation of the Separation of Powers doctrine. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [December 17, 2005, 4:00am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/84 "2005-12-17T04:00:37Z")
> [@Updike](#): > > I think that the President’s legal advisor is the Attorney General, not the courts, and that seeking “advisory opinions from the courts” “ahead of time” would be a violation of the Separation of Powers doctrine. That’s possible, but I don’t know one way or the other. That would however require an Attorney General who is impartial - something I seriously doubt in the case of Gonzales. ---
**Author:** ![Updike](https://avatars.discourse-cdn.com/v4/letter/u/ec9cab/32.png) [@Updike](https://boards.straightdope.com/u/Updike)\ **Post date:** [December 17, 2005, 4:11am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/85 "2005-12-17T04:11:21Z")
> [@SteveG1](#): > > That’s possible, but I don’t know one way or the other. That would however require an Attorney General who is impartial - something I seriously doubt in the case of Gonzales. No, the Attorney General is not meant to be “impartial”. He is part of the Executive Branch, serving at the will of the President. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [December 17, 2005, 4:36am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/86 "2005-12-17T04:36:48Z")
> [@Updike](#): > > No, the Attorney General is not meant to be “impartial”. He is part of the Executive Branch, serving at the will of the President. Thus when Ashcroft and Gonzalez wrote that unwarranted wiretaps would be legal if approved by the president, they were only _pretending_ to be activist judges. That’s a little kinky. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [December 17, 2005, 4:39am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/87 "2005-12-17T04:39:28Z")
[http://www.washingtonpost.com/wp-dyn/articles/A26401-2004Jun8.html](http://www.washingtonpost.com/wp-dyn/articles/A26401-2004Jun8.html) > [@Post](#): > > White House Counsel Alberto R. Gonzales said in a May 21 interview with The Washington Post: "Anytime a discussion came up about interrogations with the president, . . . **the directive was, 'Make sure it is lawful.** Make sure it meets all of our obligations under the Constitution, U.S. federal statutes and applicable treaties.’ " > An Aug. 1, 2002, memo from the Justice Department’s Office of Legal Counsel, addressed to Gonzales, said that torturing suspected al Qaeda members abroad “may be justified” and that international laws against torture “may be unconstitutional if applied to interrogation” conducted against suspected terrorists. > The document provided legal guidance for the CIA, which crafted new, more aggressive techniques for its operatives in the field. **McClellan called the memo a historic or scholarly review of laws and conventions** concerning torture. **“The memo was not prepared to provide advice on specific methods or techniques,” he said**. “It was analytical.” > Attorney General John D. Ashcroft yesterday **refused senators’ requests to make public the memo, which is not classified** , and would not discuss any possible involvement of the president. … > **"This is painful, incorrect analysis," said Scott Norton** , chairman of the international law committee of the New York City Bar Association, which has produced an extensive report on Pentagon detentions and interrogations. **“A lawyer is permitted to craft all sorts of wily arguments about why a statute doesn’t apply” to a defendant,** he said. **"But a lawyer cannot advocate committing a criminal act prospectively."** [http://www.msnbc.msn.com/id/6733213/site/newsweek/](http://www.msnbc.msn.com/id/6733213/site/newsweek/) > [@MSNBC](#): > > This was an Aug. 1, 2002, memo—drafted by Yoo, signed by Assistant Attorney General Jay Bybee and addressed to Gonzales—which provoked outrage among human-rights advocates by narrowly defining torture. The memo concluded, among other things, that only severe pain or permanent damage that was “specifically intended” constituted torture. Mere “cruel, inhuman or degrading” treatment did not qualify. … > At the White House meeting, Gonzales was concerned about observing the law, the participant recalls. “We didn’t want to go over the line,” he says. **But Gonzales’s worry was: “Are we forward-leaning enough on this?”** “That’s a phrase I heard Gonzales use many times,” recalls this lawyer. “Lean forward” had become a catchphrase for the administration’s offensive approach to the war on terror. … In the first months after 9/11, Gonzales helped to craft some of the most momentous and controversial decisions of Bush’s presidency. Among them: to create military commissions for the trials of terrorists, to designate U.S. citizens as “enemy combatants” and to disregard the Geneva Conventions in the treatment of prisoners at Guantanamo Bay. … > Yet memos reviewed by NEWSWEEK and interviews with key principals show that Gonzales’s advice to the president reflected the bold views laid out in the Aug. 1 memo and other documents. Sources close to the Senate Judiciary Committee say a chief focus of the hearings will be Gonzales’s role in the so-called “torture memo,” as well as his legal judgment in urging Bush to sidestep the Geneva Conventions. In a Jan. 25, 2002, memo to Bush, Gonzales said the new war on terror “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Some State Department lawyers **charge that Gonzales misrepresented so many legal considerations and facts (including hard conclusions by State’s Southeast Asia bureau about the nature of the Taliban) that one lawyer considers the memo to be "an ethical breach.**" Here is a link to the memo (WARNING pdf file) > **[dojinterrogationmemo20020801.pdf](https://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf)** > > 2.85 MB So, there was no request for advice, only the directive to “make it legal”. How to effectively circumvent the law. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [December 17, 2005, 4:46am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/88 "2005-12-17T04:46:53Z")
> [@Squink](#): > > Thus when Ashcroft and Gonzalez wrote that unwarranted wiretaps would be legal if approved by the president, they were only _pretending_ to be activist judges. That’s a little kinky. They should have known better. They should be embarrassed. I think we’ve already settled that this was not lawful. The Congress is busy fighting about it now. Apparently, they (who write the laws) have “problems” with it. If it goes to the Supreme Court, I expect they will have “problems” too. The problem with something being legal solely because the president said so, is that it is rule by decree. Then too there is that whole constitutional “thing” about being secure in person, home, papers, effects etc. The Attorney General can write anything he wants, the president can tell him to write anything he wants, but that in itself doesn’t make it legal. A state of war is not a blank check for the president. ---
**Author:** ![Updike](https://avatars.discourse-cdn.com/v4/letter/u/ec9cab/32.png) [@Updike](https://boards.straightdope.com/u/Updike)\ **Post date:** [December 17, 2005, 6:04am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/89 "2005-12-17T06:04:42Z")
> [@SteveG1](#): > > Then too there is that whole constitutional “thing” about being secure in person, home, papers, effects etc. The Attorney General can write anything he wants, the president can tell him to write anything he wants, but that in itself doesn’t make it legal. Nor does your opinion make it illegal. It’s like those posters who insist that Bush is guilty of “war crimes”. What court has convicted him of that? Opinion does not equal law. ---
**Author:** ![Rachm\_Qoch](https://avatars.discourse-cdn.com/v4/letter/r/a8b319/32.png) [@Rachm\_Qoch](https://boards.straightdope.com/u/Rachm_Qoch)\ **Post date:** [December 17, 2005, 7:01am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/90 "2005-12-17T07:01:00Z")
> [@SteveG1](#): > > (U) E.O. 12333 **prohibits the collection, retention, or dissemination of information about U.S. persons except pursuant to procedures** established by the head of the agency and approved by the Attorney General. Can’t the President simply override the provisions of this Executive Order with a new executive order? Since press reports indicate Bush worked hand in hand with NSA here, how is violating the old EO a problem? The thing that I find so perplexing is – what’s the use of such a shadowy program? Assuming that the subject of investigation is a bona fide terrorist target, why skirt the law when you can just as easily get a lawful FISA order to collect the intelligence? ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [December 17, 2005, 7:01am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/91 "2005-12-17T07:01:20Z")
Just one word to remember [CoIntelPro](http://www.google.com/search?complete=1&hl=en&q=cointelpro&btnG=Google+Search). They’ve done it before, and it looks like they’re up to it again. The only question, is there a congress or senate member, with the guts of Frank Church, to make it all public? ---
**Author:** ![Rachm\_Qoch](https://avatars.discourse-cdn.com/v4/letter/r/a8b319/32.png) [@Rachm\_Qoch](https://boards.straightdope.com/u/Rachm_Qoch)\ **Post date:** [December 17, 2005, 7:13am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/92 "2005-12-17T07:13:04Z")
> [@crowmanyclouds](#): > > Just one word to remember [CoIntelPro](http://www.google.com/search?complete=1&hl=en&q=cointelpro&btnG=Google+Search). > They’ve done it before, and it looks like they’re up to it again. > The only question, is there a congress or senate member, with the guts of Frank Church, to make it all public? The parallels to the revelations of the Church Committe report are uncanny. Foreign communication intercepts where a US person is a party. Physical security trumping civil liberties in an age of terrorism. Deja-vu all over again. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [December 17, 2005, 7:31am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/93 "2005-12-17T07:31:46Z")
> [@Rachm Qoch](#): > > The parallels to the revelations of the Church Committe report are uncanny. Foreign communication intercepts where a US person is a party. Physical security trumping civil liberties in an age of terrorism. Deja-vu all over again. Yeah right NOTHING like what’s going on now. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [December 17, 2005, 7:42am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/94 "2005-12-17T07:42:53Z")
> [@Bricker](#): > > I notice that the blog author does not identify specifically what law he feels Bush violated. > > That’s a good move, because there is no such law. The law in question would be the [Foreign Intelligence Surveillance Act](http://www4.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html), specifically [50 U.S.C. 1809](http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001809----000-.html): > [@](#): > > **(a) Prohibited activities** > > A person is guilty of an offense if he intentionally— > > **(1)** engages in electronic surveillance under color of law except as authorized by statute; or > > **(2)** discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute. > > **(b) Defense** > > It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction. > > **(c) Penalties** > > An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. > > **(d) Federal jurisdiction** > > There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [December 17, 2005, 9:58am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/95 "2005-12-17T09:58:58Z")
> [@Bricker](#): > > Knowing that the call is going to a foreign country that has no Fourth Amendment rights, and can legally be monitored by officials in that foreign country? > > Why would you think your call was private under those circumstances? Alas, (as partner B. doubtless knows) expectation of privacy is term of art, and has nothing to do with the subjective attitude of the phone patron in the united states, nor the privacy standards or their lack in the foreign terminus. And yes, you have an expectation of privacy when you use the telephone, ipso facto. Even a cell phone. Even a wireless phone that your neighbors baby monitor picks up. You are still entitled to expect privacy. It is the expecttion that is protected, not the privacy itself. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 17, 2005, 10:03am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/96 "2005-12-17T10:03:26Z")
> [@MEBuckner](#): > > The law in question would be the [Foreign Intelligence Surveillance Act](http://www4.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html), specifically [50 U.S.C. 1809](http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001809----000-.html): 50 USC § 1809 criminalizes only that surveillance NOT authorized by statute. This particular surveillance is authorized by statute, specifically [50 USC § 1811 _et seq_](http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001811----000-.html): > [@](#): > > Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress. I believe the President is treating the Congressional authorization to use force against terror as a declaration of war, based on the fact the surveillance of individual subjects under his order is limited to fifteen days. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [December 17, 2005, 10:18am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/97 "2005-12-17T10:18:44Z")
> [@SteveG1](#): > > [http://www.washingtonpost.com/wp-dyn/articles/A26401-2004Jun8.html](http://www.washingtonpost.com/wp-dyn/articles/A26401-2004Jun8.html) > > So, there was no request for advice, only the directive to “make it legal”. How to effectively circumvent the law. But that’s what you pay your lawyer for…My father was a mob lawyer, and he used to crack up at people who came to lawyers to ask if such and such was legal. He said they are supposed to tell you what they want to do, then you give them lecture on the law, THEN ---
**Author:** ![ccwaterback](https://avatars.discourse-cdn.com/v4/letter/c/df705f/32.png) [@ccwaterback](https://boards.straightdope.com/u/ccwaterback)\ **Post date:** [December 17, 2005, 10:47am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/98 "2005-12-17T10:47:57Z")
Isn’t it curious how the Bush administration has abandon morality on many issues, simply because it’s not illegal? I know morality and legality are out of step, but does that mean we should all discover these inconsistencies and take advantage of them? Maybe that’s what the legal system is all about, turning a deaf ear towards morality simply because it’s the legal thing to do. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 17, 2005, 11:15am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/99 "2005-12-17T11:15:06Z")
> [@ccwaterback](#): > > Isn’t it curious how the Bush administration has abandon morality on many issues, simply because it’s not illegal? I know morality and legality are out of step, but does that mean we should all discover these inconsistencies and take advantage of them? Maybe that’s what the legal system is all about, turning a deaf ear towards morality simply because it’s the legal thing to do. Are you saying it’s immoral to tap international calls when the purpose is to discover terrorist plots and plans, and when the monitoring has actually produced information, arrests, and convictions for terrorist plots and plans? ---
**Author:** ![An\_Arky](https://avatars.discourse-cdn.com/v4/letter/a/87869e/32.png) [@An\_Arky](https://boards.straightdope.com/u/An_Arky)\ **Post date:** [December 17, 2005, 11:48am UTC](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856/100 "2005-12-17T11:48:06Z")
Well, if you presuppose a purpose to be terrorism, you can pretty much do anything you want, from what I gather. Spy on your own citizens, go to war on cherry-picked intelligence, torture people, and anything else that can be perpetrated by the big honking camel’s nose under the tent. Sadly, the moral high ground is quite distant from our current position now. Quoting chapter and verse a bunch of weasel words does nothing to alter the perception by a great number of our citizens and reasonable people throughout the world that we’re dirty, and not to be trusted. I’m amazed that the folks who lecture us on the evils of big government are supportive of perpetrating that which practically defines evil big government. It’s like being caught up in _Animal Farm._ [Previous page](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856.md?page=4) [Next page](https://boards.straightdope.com/t/the-bush-administration-trashes-civil-liberties-of-americans/335856.md?page=6)