On FISA: "... the best strategy for Democrats to pursue is to ...

[understandinglife]

... oppose vigorously any further amendments to FISA, at least until the courts have had a chance to weigh in on this issue. So long as the President claims the inherent authority to disregard FISA, amending FISA is not only a pointless exercise, but it will actually serve to delay or preclude judicial resolution of this constitutional impasse. The Democrats need to give this issue the time to work its way through the courts."

Anonymous Liberal has an insightful post at Glenn Greenwald's Unclaimed Territory, today. The above quote is coupled with some key information that many of you at DU may be familiar, but I'm posting it because it is essential that as many folk as possible be aware of what the ACLU, others, and Sean Patrick Maloney are pursuing. To wit:

The lawsuit filed by the ACLU (on behalf of such plaintiffs as Christopher Hitchens and Larry Diamond) has some potential, but the plaintiffs must first establish that they have standing to sue, which will not be easy. Another legal challenge has been filed by lawyers for the al-Haramain Islamic Foundation claiming that the director of the organization was a target of the NSA's warrantless surveillance. This challenge has a better claim to legal standing, at least in theory, but its success will largely depend on the factual details of whatever surveillance actually took place.

The other interesting avenue of legal challenge is the one proposed by Sean Patrick Maloney, a candidate for Attorney General in New York. Maloney, with the assistance of some other good lawyers, has actually drafted a complaint that could be used by any number of state Attorneys General to challenge the legality of the NSA program. The complaint alleges -- among other things -- that the NSA program violates a New York state law that forbids eavesdropping except as authorized by relevant state and federal laws. Many other states have similar laws. Determining whether the NSA program violates these laws would require a judge to determine whether or not the President acted within his constitutional power in authorizing the program. This sort of lawsuit may be less vulnerable to standing challenges than one filed by a private party.

The Maloney complaint contains the following:

PRELIMINARY STATEMENT

1. The State of New York brings this lawsuit, on behalf of itself and its residents, to challenge a covert federal program under which government officials intercept and conduct surveillance of international telephone and Internet communications of New York residents, along with other Americans, without court approval and in violation of state and federal law. The National Security Agency (“NSA”) launched this program (“the NSA Program”) in 2001. The President of the United States ratified the NSA Program in 2002.

2. Under the NSA Program, the NSA has conducted warrantless surveillance on a widespread basis, secretly intercepting the communications of hundreds, if not thousands, of people in the United States at any given time. On information and belief, a significant number of
individuals and organizations in the State of New York have been subjected to surveillance under the NSA Program.

3. New York law specifically prohibits “eavesdropping” – defined as the recording or overhearing of a communication without the consent of at least one party thereto – when it is engaged in “unlawfully,” i.e., when not specifically authorized by Article 700 or 705 of the New York Criminal Procedure Law (providing for warrants under state law), or otherwise authorized by federal law under the Supremacy Clause of the United States Constitution. Thus, except insofar as it is properly authorized under federal law, the NSA Program directly violates New York law.

4. Far from being authorized under federal law, the NSA Program is in direct violation of federal laws enacted by Congress, including the Foreign Intelligence Surveillance Act (“FISA”). The NSA Program violates constitutional separation of powers principles because it was authorized by the President in excess of his constitutional authority and in violation of congressionally mandated restrictions. And the NSA Program violates the First and Fourth Amendments to the United States Constitution because it infringes upon the free speech and privacy rights of Americans, including New York residents.

5. Because the NSA Program is not authorized by federal law, it violates New York law, and infringes upon the sovereign interests of the State of New York and the individual rights of New York residents. The State respectfully seeks (1) a declaration that the NSA Program is unlawful and (2) a permanent injunction against all activities carried out pursuant to the NSA Program, unless and until those activities are brought within the law or this court’s oversight. The State does not seek to halt or disrupt any legitimate ongoing or impending anti-terrorism efforts of the federal government and, therefore, respectfully seeks only to “legalize” those activities over time through a careful and flexible judicial process.

Full text of the complaint:

http://seanmaloney.com/globals/docs/NSA_Complaint.pdf

Attempts by lackey Republicans DeWine and Specter to further erode the Constitution by enabling Bu$h to advance his unitary executive - I can do whatever I claim I can do - monarchy, must be blocked.

As Anonymous Liberal notes, it is also essential for Attorneys General in other states to consider bringing complaints similar to Maloney's, and I would add that I think they should develop the same scale of cooperation they used to take on the tobacco industry.

Obviously, what Bu$h, Cheney and their neoconster minions and Congressional lapdogs are doing is destroying key elements of our Constitution in their, currently uninterrupted march, to establishing a fascist dictatorship.

Link to Anonymous Liberal's outstanding post entitled NSA Endgame:

http://glenngreenwald.blogspot.com/2006/04/nsa-endgame.html


If You're pro-Bush, You're Anti-America

[understandinglife]

1. John Dean: "Never in history has a president asserted claims to such ...

... unchecked power."

President George Bush continues to openly and defiantly ignore the Foreign Intelligence Surveillance Act (FISA) -- the 1978 statute prohibiting electronic inspection of Americans' telephone and email communications with people outside the United States without a court-authorized warrant. (According to U.S. News & World Report, the President may also have authorized warrantless break-ins and other physical surveillance, such as opening regular mail, in violation of the Fourth Amendment.)

Bush's position is that he does not need Congressional approval for his measures. Even he does not claim that Congress gave him express power to undertake them, but he does claim that Congress indirectly approved such measures when it authorized the use of force to go after those involved in the 9/11 terror attacks on the United States. He also argues that, in any event, approval was not necessary -- for he argues that he has such authority under Article II of the Constitution, as the chief executive, and Commander in Chief, charged with faithfully executing the laws of the land and protecting the Constitution.

These arguments are hauntingly familiar to this observer.

The Nixon Precedent

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If the early polls are half correct, independent swing voters have had it with Bush. Democrats want no part of him. Moderate Republicans are keeping their distance; they are no longer willing to hold their noses and vote for him. The big question is whether there will be an "October Surprise" -- a dramatic event that will bump up Bush's currently dismal polling numbers, and help his party. Right now, Republican friends tell me they are doing all they can to keep the mid-terms from being a referendum on Bush. They know they have a better chance if they focus on local races -- absent an October Surprise. If you have any knowledge of how White Houses operate, you can be sure they are working night and day to pull off such a surprise.

If they do it, Bush will get away with his lawlessness. If not, he and Cheney are in for two very bad years. They have earned them.

Link:

http://www.alternet.org/rights/34229

By October, the only surprise should be that Bu$h and Cheney have not been arrested.


Peace.