Reidblog [The Reid Report blog]

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Monday, December 19, 2005
I am not a lawyer, Tim...

MR. RUSSERT: What are the other authorities?

SEC'Y RICE: Tim, again, I'm not a lawyer, but the president has constitutional authority and he has statutory authorities.

RUSSERT: What Democrats and Republicans in Congress are asking, what is the authority that you keep citing? What law? What statute? Where in the Constitution does it say that the President can eavesdrop, wiretap American citizens without a court order?

RICE: Tim, the President has authorities under FISA which we are using and using actively. He also has authorities that derive from his role as Commander in Chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority. Now, I am not a lawyer and I am quite certain that the Attorney General will address a lot of these questions. (Full Transcript) -- Pic and links courtesy of Crooks and Liars, where you can also find the video...

Condi Rice's defense of Bush-approved domestic spying at her former agency was embarassing in its failure to answer a simple Russert question: under what law or what section of the Constitution does the president derive the authority to wiretap Americans without a court order? (Another good one might have been "how can we expect the Iraqis to create and uphold a democratic constitution when our own president sets ours aside in favor of monarchial power?" Between the torture allegations and secret prisons, the Abu Ghraib scandal, the renditions to old Soviet gulags and Middle Eastern tyrannies and the apparent military-domestic spy network infiltrating peace groups and spying on American citizens' phone conversations, just as we did with members of the U.N. security council before the war, Mr. Bush is sounding more like Saddam Hussein every day...)

Perhaps Ms. Rice (or some enterprising right wing blogger) could peruse the links on this page (including links to the text of both the Patriot Act and the Foreign Intelligence Surveillance Act/FISA) to find a scintilla of support for the notion that Mr. Bush acted with the appropriate statutory and constitutional authority when he authorized Ms. Rice's agency to spy on people inside the United States. What makes this story even more incredible (beside the fact that the New York Times seems to have held the story in part to obey the administration and in part to help out a reporter's book...) is the fact that FISA provided Mr. Bush with all the authority he needed to surveil potential terrorists. All he had to do was get what amounts to a rubber stamp court order. He could have even gotten the order after the spy deeds were done. But under the FISA law, which I somehow doubt Mr. Bush has the authority to unilaterally suspend, there are a few things the president cannot do:


§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court


(1) 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 periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title; (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and (C) the proposed minimization procedures with
And what of the penalties for breaking the FISA law? For that, we turn to:


§ 1809. Criminal sanctions

Release date: 2005-03-17

(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.
There's a five-year prison term and $10,000 fine that goes with that...

Now let's have a look at the Patriot Act, which Ms. Rice also seemed to grope for in the darkness of her argument. Here, the relevant section appears to be Sec. 201, the section on intercepting communications, which reads in it's entirety:


Section 2516(1) of title 18, United States Code, is amended--

(1) by redesignating paragraph (p), as so redesignated by section 434(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1274), as paragraph (r); and

(2) by inserting after paragraph (p), as so redesignated by section 201(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 110 Stat. 3009-565), the following new paragraph:
`(q) any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to terrorism); or'.


Section 2516(1)(c) of title 18, United States Code, is amended by striking `and section 1341 (relating to mail fraud),' and inserting `section 1341 (relating to mail fraud), a felony violation of section 1030 (relating to computer fraud and abuse),'.
Where's the authority there? For some help, let's surf over to Title 18 of the U.S. Code... The edited section -- 2516(1) -- spells out the definition of various criminal activities as indicated above. Nowhere does it even discuss presidential authority. (There is some stuff in there about transporting fireworks across state lines, though...)

And last but not least, let's have a look at the Congressional authorization to use force against Iraq, which Ms. Rice also cited as a source of Mr. Bush's authority to tap your phone. Once you get past the "whereases," the resolution states that Congress authorizes some very specific things:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
So far so good, but no wiretap authority there either...

Perhaps what Condi meant to refer to were the following "whereases" in the resolution:
Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107-40);
Alright then, let's have alook at that authorization. After the preamble, it has only two brief sections, all dealing with the president's authority to act against foreign terrorists and potential state sponsors. It even attempts to keep for Congress the authority to declare war (which we now know was a bit of a joke, wasn't it...)

This joint resolution may be cited as the `Authorization for Use of Military Force'.


(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
I'm sorry, but whwere is this authority Condi speaks of?

Bottom line: Ms. Rice couldn't cite a statute authorizing Mr. Bush to replicate the acts that got Richard Nixon impeached because such a statute does not exist.

I can see that and I'm not a lawyer, either.


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posted by JReid @ 1:11 AM  
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"I am for enhanced interrogation. I don't believe waterboarding is torture... I'll do it. I'll do it for charity." -- Sean Hannity
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