The Political Junkies

TPJ wishes all of its readers a Merry Christmas for those who celebrate this day in accordance with their religious beliefs. For those who celebrate the day as a “winter break,” we wish you health, happiness and togetherness.

TPJ will be on break through Thursday, December 29^th at which time we will return to publication.

In the summer of 1826, Thomas Jefferson and John Adams, the last living signers of the Declaration of Independence, were close to death. Both men struggled to live to see the 50^th anniversary of the Declaration. Both died on the 4^th.

In Quincy, Massachusetts, Adams’ home, town leaders called on Adams seeking his suggestion for a toast that could be read at the town’s celebration on the 4^th. David McCullough, in his award winning history, John Adams, records Adams’ reply to Quincy’s leaders:

“I will give you,” Adams said, “Independence forever!” Asked if he would like to add something more, he replied, “Not a word.”

For Joseph Padilla, Adams’ words ring hollow and his legal plight exemplifies Bush’s abridgement of the Constitution.

Bush argued in two federal courts that Padilla, a United States citizen, was an “enemy combatant,” and could be held without access to Federal Court jurisdiction because he had plotted with al-Qaida to deploy a “dirty” nuclear device in the United States. In a decision that shocked many constitutional scholars, the Federal 4^th Circuit Court of Appeals, controlled by Republican judges, agreed that Bush could hold “enemy combatants,” even if United States citizens. Padilla’s lawyers appealed to the Supreme Court and the appeal is pending.

Bush, fearing that the US Supreme Court may issue an adverse ruling, changed its story. Last month, the Bush administration obtained an indictment from a Federal Grand Jury accusing Padilla as a member of a North American terror support cell that allegedly raised funds and recruited fighters to wage terrorism outside the United States.

Bush administration lawyers then requested that the 4^th Circuit Court of Appeals to transfer Padilla from military custody as an “enemy combatant” to custody of Federal law enforcement authorities in Miami.

The upshot of that approach, underscored by the decision in Mr. Padilla's case, is that no one outside the administration knows just how the determination is made whether to handle a terror suspect as an enemy combatant or as a common criminal, to hold him indefinitely without charges in a military facility or to charge him in court.

Indeed, citing the need to combat terrorism, the administration has argued, with varying degrees of success, that judges should have essentially no role in reviewing its decisions. The change in Mr. Padilla's status, just days before the government's legal papers were due in his appeal to the Supreme Court, suggested to many legal observers that the administration wanted to keep the court out of the case.

"The position of the executive branch," said Eric M. Freedman, a law professor at Hofstra University who has consulted with lawyers for several detainees, "is that it can be judge, jury and executioner." -- New York Times (emphasis added)

The 4^th Circuit Court of Appeals has rejected Bush’s request to transfer Padilla to Federal authorities. As a result, the US Supreme Court will have to decide whether or not to hear Padilla’s case as an “enemy combatant, and ultimately decide if Bush may act as “judge and jury.”

Most importantly, the 4^th Circuit directly and plainly questioned the honesty and integrity of Bush’s administration:

The decision, written by Judge J. Michael Luttig, questioned why the administration used one set of facts before the court for 3 1/2 years to justify holding Padilla without charges but used another set to convince a grand jury in Florida to indict him last month.

Luttig said the administration has risked its "credibility before the courts" by appearing to try to keep the Supreme Court from reviewing the extent of the president's power to hold enemy combatants without charges. – Yahoo News (emphasis added)

Judge Luttig’s careful choice of phrase, “credibility before the courts,” is uncharacteristic judicial prose when addressing a case involving the powers of the Executive and a clear indication that the court believes that Bush deceived the court. The language also denotes a strain of rebuke stemming from Bush’s betrayal of the court that largely sided with Bush in a highly controversial case by holding that the Executive could declare a citizen an “enemy combatant” and hold that individual without judicial recourse.

Judge Luttig went even further, lambasting Bush’s administration for failing to deal honestly with the 4^th Circuit Court of Appeals as to its reasons for changing the alleged facts supporting Padilla’s imprisonment:

Luttig also chastised the administration for failing to explain why it is using a different set of allegations against Padilla and forcing the appeals court to rely on media reports about the government's motivations.

The appellate judge pointed out that anonymous government officials were quoted in news reports saying Padilla was charged in Miami because the administration didn't want the Supreme Court to review the appeals court's September decision. – Yahoo News (emphasis added)

Padilla’s case is a clarion demonstration of the contempt that Bush holds the Federal judiciary constitutional role within our Republic. And, it is one more example of an administration that is undermining our constitutional democracy.

Dr. Steven Jonas, TPJ’s Contributing Author, writes an exceptional article today that analyzes the larger objectives of the Bush and radical Republicans in reordering the Constitution that John Adams and the Founding Fathers brought fourth from the American Revolution. It is a must read if we are to honor Adams’ toast, “Independence forever!”

NPR's ATC, [All Things Considered], carried portions of the press conference in which Bush addressed, or sought to address, concerns arising from the New York Times revelations. His case, as I understand it, boils down to this:

1. Fighting the war on terror requires he take these measures
(tapping phones and emails to or from American citizens from or to
individuals overseas) without seeking a warrant mandated by the
1978 FISA law;

2. Time is of the essence and that is why the [President] cannot wait to go
to court, despite provisions in the law for expedited process;

3. He is doing this on the basis of an executive order signed in
secret in 2002, "permitting" the President to act extra legally;

Now, are not the flaws in this argument glaring and ominous?

The man who admits to having violated the law frequently for three years says he is monitoring his own illegality. This is a peculiar position to take, by a man who swore to preserve, protect and defend the Constitution.

When asked a carefully framed question, along the lines of how long he expected these activities to remain in force given the uncertain duration, perhaps years long, of the war on terror, he bristled and dodged the question; falling back on his stock argument that he is doing everything he can to defend the country.

Does not every tyrant assert he is doing what is necessary, that laws cannot constrain him in times of great danger, and the populace needs to trust he will stop doing illegal acts when he determines it is OK to do so?

I don't know if there was a follow-up question.

I am convinced only the Senate will save us from the extension of the most obnoxious aspects of the so called Patriot Act. What can save us from continued illegal wiretaps, I do not know. It is unlikely the current House would join the Senate in passing a law reinforcing the 1978 law, which Bush would veto if they did, and even more unlikely the two houses could muster the two thirds for an override.

There is always impeachment. If a clear and knowing violation of a law on the books for a quarter century, involving a clear conflict between constitutionally protected liberties and a President's
assertion of extraordinary wartime powers, is not an impeachable offense, what is? (I hope no one will assert that this is less grave than Clinton lying about sex.) Now, how many want to wager the current House would bring the necessary articles?

If Bush's argument remains unchallenged, what prevents him from taking the next step -asserting that grave national danger requires him to tap domestic phone and email traffic?

We are witnessing how tyranny takes hold.

A conservative? In fact, an ungovernable radical who neither understands nor respects his role in a government whose powers are specific, limited, and constrained.

Lincoln said our democracy would not be overborne from without but from within. Bush, who would compare himself with Lincoln - how obscene that is! - is seeking to fulfill that prophecy.

*Jay Greene * is a frequent contributor to TPJ. Junkie considers his article “Deadwood Act” to be one of the finest pieces ever to appear in TPJ. Greene is retired, but he held top management posts in the steamship industry and international trade on the Pacific Coast.

Bush’s authorization of secret wire taps without a court approved warrant is the critical issue. Several facts emerge that “frame” the critical departure from constitutional provisions that Bush has taken. First, Bush is not contending that the Patriot Act specifically authorizes his approval of warrantless searches. Attorney General Gonzales most clearly articulates Bush’s position that Congress’ resolution authorizing the war reaffirmed the president’s implied powers to authorize and conduct warrantless searches. Of course, Bush’s Attorney General has given Bush an opinion to support that proposition.

Second, Bush contends that the special court to independently approve requests for searches was not fast enough to meet imminent threats. Of course, there is no support for that position other than Bush’s assertion.

And if the special court created by FISA was inadequate, one logically asks why Bush has not sought changes from Congress. Attorney General Gonzales provides the shocking answer to that question during an interview:

We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Simply stated, Bush knew that Congress would maintain constitutional principles and not approve warrantless searches. Bush simply proceeded independently without Congressional authority.

Bush claims that his actions in approving warrantless eavesdropping have “saved lives.” Of course, Americans have only Bush’s word for the assertion; precisely why an independent judiciary normally approves search warrants as a fundamental check to ensure that presidential power is not abused.

Bush’s drive to reauthorize the Patriot Act failed this week. It was certainly a major defeat for this radical Republican administration that has suffered few defeats with its majorities in Congress. For Americans, the real defeat is Bush’s efforts to politicize the American Constitution.

The critical vote was the motion to invoke cloture to stop the filibuster organized by Sens. Feingold and Craig. Republicans needed 60 votes to stop debate (cloture) but could only muster 53 votes (actually 52, but Republican Majority Leader Frist voted against cloture as a procedural move to permit him call, at some point in the future, for reconsideration of the vote).

Every Democrat voted against cloture except two; Sens. Tim Johnson of South Dakota and Ben Nelson of Nebraska. Four Republicans voted against cloture: Chuck Hagel of Nebraska, Lisa Murkowski of Alaska, John Sununu of New Hampshire, and Craig - Idaho. (Frist’s vote against cloture does not count.) Progressive Democrats who have been assailing Sen. Lieberman should note that he voted the Democratic line against cloture. Democrats should also note that “moderate” Republicans; Sens. Snow and Chafe, voted for cloture.

Based upon the actual vote, Democrats could have defeated the cloture motion with no Republican votes. That four, conservative, Republicans joined Democrats made the vote bipartisan in nature.

Perhaps the decisive factor in making the effort bipartisan was the New York Time’s shocking revelation that Bush has secretly and without warrants approved by any court permitted wire tapping and surveillance of private communications:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

Bush’s extra-constitutional authorization of surveillance is just the tip of the iceberg. For example, the Pentagon has been monitoring citizens opposed to the war in Iraq:

A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn't know was that their meeting had come to the attention of the U.S. military.

A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period.

“This peaceful, educationally oriented group being a threat is incredible,” says Evy Grachow, a member of the Florida group called The Truth Project. . . .

The Defense Department document is the first inside look at how the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups.

“I think Americans should be concerned that the military, in fact, has reached too far,” says NBC News military analyst Bill Arkin.

Add all of this to the previously known facts of Bush’s secret renditions, secret prison camps, and secret torture chambers. Last week, TPJ published a story from the website Capitol Hill Blue that GOP leaders told Bush that his hardcore push to renew the more onerous provisions of the Patriot Act could further alienate conservatives still mad at the President from his botched attempt to nominate White House Counsel Harriet Miers to the Supreme Court.

“I don’t give a goddamn,” Bush retorted. “I’m the President and the Commander-in-Chief. Do it my way.”

“Mr. President,” one aide in the meeting said. “There is a valid case that the provisions in this law undermine the Constitution.”

“Stop throwing the Constitution in my face,” Bush screamed back. “It’s just a goddamned piece of paper!”

I’ve talked to three people present for the meeting that day and they all confirm that the President of the United States called the Constitution “a goddamned piece of paper.” -- Capitol Hill Blue (emphasis added)

Some questioned whether this story was true, given the fact that it has not been picked up in the mainstream media. Whether or not Bush said exactly the quote attributed to him, his actions and those of his radical Republican administration demonstrate that he is a President who is exceeding constitutional protections of every American.

The Patriot Act is set to expire and Bush is already claiming that the bipartisan filibuster is threatening national security. Democrats offered to extend the current version of the Patriot Act for three months to permit bipartisan negotiations to enact a bill that both Parties can support.

Bush immediately rejected any extension of the Patriot Act. As Sen. Feingold cogently notes:

The Administration has argued that opposing the conference report would put the American people at risk. Yet, according to Senator Frist and Senator Specter, the President would rather let the law expire than support the unanimously passed Senate-passed bill or a short extension to let negotiations continue. I can't imagine anything more irresponsible than compromising the safety of the American people to score political points.

The die is now cast. The Democratic Party either has to make the case publicly that it is the Party that is defending American constitutional values or be smeared by radical Republicans as the Party that is weak on terrorism. Democrats should remember Ben Franklin’s paraphrase of Voltaire, “Those who would surrender essential liberty for a little temporary safety, deserve neither liberty nor safety."

The Republican drive for the power to conduct surveillance on any citizen is not just limited to secret eavesdropping that has been approved by Bush. Consider these few recent examples that have not received significant mainstream media attention.

1. Domestic surveillance activity by the Defense Department has expanded again. It has established new agencies, increased personnel and pushed legislation to make exceptions for intelligence gathering regarding the Privacy Act. Under the proposed legislation, the FBI, CIA, Pentagon and other intelligence agencies would be allowed to share the private and personal information of American citizens. They would ultimately have access to the data and not be required to present proof that any terrorist act or crime was involved. This would essentially remove all oversight by Congress and the American people. -- Pentagon Expanding Its Domestic Surveillance Activity

2. Since 2001, the FBI has dramatically increased the surveillance of persons in the United States, and has in fact done so in many instances without obtaining proper authorization, and in violation of required lawful procedures. For example, it is now known that the FBI conducted secret surveillance on some US residents for as long as a year and a half without providing proper oversight or documentation. In other instances, private e-mails have been intercepted without proper legal authorization, bank records likewise have been improperly obtained, and in some cases improper "physical searches" were conducted. -- FBI Papers Indicate Intelligence Violations

3. Proceedings in a federal court case in New York have revealed that the Department of Justice has been employing taps of cell phones without any evidence of suspected criminal activity. -- Privacy Advocates Attack Cell-phone Surveillance

4. Federal government agencies engaging in massive data-mining of information on American citizens, have flunked privacy tests "required" by federal law. Agencies including the FBI and the IRS have been shown in a study conducted by the non-partisan Government Accountability Office (GAO), to have ignored privacy requirements supposedly mandated by federal law. -- GAO Data Mining Report and Data Mining Found to Flunk Privacy Rules

5. Gov. Jeb Bush recently signed legislation containing a provision requiring state officials to develop a biometrically-based "unique personal identifier;" ostensibly to recognize individuals in court cases, but which inevitably would be used for all sorts of other purposes. This represents a frightening expansion of government’s constant effort to reduce individual privacy and enhance government’s ability to track people. -- 'Digital birth ID' stirs privacy debate

6. By collecting the personal data of 250,000 law-abiding American citizens to field test the newest of the Transportation Security Administration’s programs, Secure Flight, the Privacy Act was clearly violated once again by the bureaucratic agency. The Government Accountability Office recently released a report which gives credibility to the concerns of privacy advocates by stating that "a TSA contractor, acting on behalf of the agency, collected more than 100 million commercial data records containing personal information such as name, date of birth, and telephone number without informing the public." TSA's Privacy Law Violations May Lead to More Abuses

7. Although Congress prohibited the collection of secret data files on U.S. airline passengers, the Transportation Security Administration (TSA) has now been shown to be doing just that -- compiling massive amounts of private information on all U.S. citizens who flew commercially during the month of June 2004, as part of a new data-mining, passenger profiling system dubbed “SecureFlight.” Information collected by the TSA in contravention of congressional mandate, and in conjunction with commercial data collectors, includes travelers' names, addresses, credit card numbers, travel itineraries and meal requests, and possibly a passenger's religion. --TSA's passenger files violate privacy rules

8. The U.S. will have a defacto National ID card by 2008 as a result of the recently-enacted “Real ID” Act. Now, the U.S. Secretary of Homeland Security is working to ensure our National ID database will be compatible with Britain’s. In effect, this will create an International ID all U.S. citizens will be forced to carry. -- US wants to be able to access Britons' ID cards

Tumble Weed (Bush) Watch