Tuesday, January 31, 2006
infowarsnews : Message: Al-Qaeda Propagandizes For Bush On Eve Of State of the Union
infowarsnews : Message: Al-Qaeda Propagandizes For Bush On Eve Of State of the Union
Al-Qaeda Propagandizes For Bush On Eve Of State of the Union
Paul Joseph Watson/Prison Planet.com January 31 2006
Hot on the heels of Osama bin Laden's latest release, an audio tape that boosted George W. Bush's poll numbers despite it being described as a probable fake by bin Laden expert Professor Bruce Lawrence, Ayman al-Zawahri has popped up on the eve of the State of the Union to hand Bush all the ammunition he needs to threaten American citizens for a sixth consecutive time.
Associated Press reports,
CAIRO, Egypt - Al-Qaida No. 2 Ayman al-Zawahri said in a videotape aired Monday that President Bush was a "butcher" and a "failure" because of a deadly U.S. airstrike in Pakistan targeting the bin Laden deputy, and he threatened a new attack on the United States.A U.S. counterterrorism official, speaking on condition of anonymity in compliance with office policy, said there was no reason to doubt the authenticity of the tape, which U.S. intelligence officials were analyzing. The official said the message broadcast by Al-Jazeera showed al-Qaida believed it was important to convey that al-Zawahri is alive.
Bush's handlers don't have time to wait to see whether the story floats as they did with the bin Laden tape before making a decision to refer to it in the speech. However, analysis that suggests the tape is a forgery as was the case with the previous offering won't surface until after Tuesday night's address.
Previous tapes which featured Ayman al-Zawahri were found to be cobbled together from old footage but that doesn't bother a lapdog media well versed in manufacturing consent and never offering retractions when said tapes turn out to be questionable frauds.
Nor does it seem to concern them that Al-Zawahri was reportedly arrested by the Iranians in February 2002.
Al-Zawahri and bin Laden seem to be amazingly adept at releasing statements at the most politically expedient times that benefit the Bush administration.
On the eve of the Iraq war before Colin Powell's infamous presentation to the UN, an audio tape in which bin Laden claimed he was allied with Saddam Hussein surfaced, a gift-wrapped present for the Neo-Cons who had consistently been proven wrong in their assertion that there was a connection between Iraq and 9/11.
Four days before the 2004 presidential election, bin Laden appeared with Bush's 'October surprise' - claiming he ordered 9/11 and appearing to goad Americans with threats of more attacks. The tape enabled Bush to recover vital approval ratings that he had lost to John Kerry in the weeks before and win re-election.
Even veteran newsman Walter Kronkite went public to suggest the tape was a set-up masterminded by Karl Rove.
A Cornell University study confirmed that whenever a terror alert or a terror threat is issued, Bush's approval ratings show a significant jump.
Previous bin Laden tapes were proven to be fraudulent by voice analysis labs in Europe.
Get Alex Jones and Paul Joseph Watson's books, ALL Alex's documentary films, films by other authors, audio interviews and special reports. Sign up at Prison Planet.tv - CLICK HERE.
Al-Qaeda Propagandizes For Bush On Eve Of State of the Union
Paul Joseph Watson/Prison Planet.com January 31 2006
Hot on the heels of Osama bin Laden's latest release, an audio tape that boosted George W. Bush's poll numbers despite it being described as a probable fake by bin Laden expert Professor Bruce Lawrence, Ayman al-Zawahri has popped up on the eve of the State of the Union to hand Bush all the ammunition he needs to threaten American citizens for a sixth consecutive time.
Associated Press reports,
CAIRO, Egypt - Al-Qaida No. 2 Ayman al-Zawahri said in a videotape aired Monday that President Bush was a "butcher" and a "failure" because of a deadly U.S. airstrike in Pakistan targeting the bin Laden deputy, and he threatened a new attack on the United States.A U.S. counterterrorism official, speaking on condition of anonymity in compliance with office policy, said there was no reason to doubt the authenticity of the tape, which U.S. intelligence officials were analyzing. The official said the message broadcast by Al-Jazeera showed al-Qaida believed it was important to convey that al-Zawahri is alive.
Bush's handlers don't have time to wait to see whether the story floats as they did with the bin Laden tape before making a decision to refer to it in the speech. However, analysis that suggests the tape is a forgery as was the case with the previous offering won't surface until after Tuesday night's address.
Previous tapes which featured Ayman al-Zawahri were found to be cobbled together from old footage but that doesn't bother a lapdog media well versed in manufacturing consent and never offering retractions when said tapes turn out to be questionable frauds.
Nor does it seem to concern them that Al-Zawahri was reportedly arrested by the Iranians in February 2002.
Al-Zawahri and bin Laden seem to be amazingly adept at releasing statements at the most politically expedient times that benefit the Bush administration.
On the eve of the Iraq war before Colin Powell's infamous presentation to the UN, an audio tape in which bin Laden claimed he was allied with Saddam Hussein surfaced, a gift-wrapped present for the Neo-Cons who had consistently been proven wrong in their assertion that there was a connection between Iraq and 9/11.
Four days before the 2004 presidential election, bin Laden appeared with Bush's 'October surprise' - claiming he ordered 9/11 and appearing to goad Americans with threats of more attacks. The tape enabled Bush to recover vital approval ratings that he had lost to John Kerry in the weeks before and win re-election.
Even veteran newsman Walter Kronkite went public to suggest the tape was a set-up masterminded by Karl Rove.
A Cornell University study confirmed that whenever a terror alert or a terror threat is issued, Bush's approval ratings show a significant jump.
Previous bin Laden tapes were proven to be fraudulent by voice analysis labs in Europe.
Get Alex Jones and Paul Joseph Watson's books, ALL Alex's documentary films, films by other authors, audio interviews and special reports. Sign up at Prison Planet.tv - CLICK HERE.
infowarsnews : Message: Leaked MI5 London Bombing report may be disinfo
infowarsnews : Message: Leaked MI5 London Bombing report may be disinfo
Leaked MI5 London Bombing report may be disinfoWhy are bombers referred to as "Stepford Four"?
Steve Watson / Prisonplanet January 30 2006
We have tirelessly exposed the inconsistencies and unreported facts surrounding the July London Bombings, this weekend saw a few more emerge.
A supposed leaked MI5 report suggests that the intelligence agencies have no leads and know very little about who was behind the July 7 attacks.
“We know little about what three of the bombers did in Pakistan, when attack planning began, how and when the attackers were recruited, the extent of any external direction or assistance and the extent and role of any wider network.”
This is very convenient for MI5 because it means they have "exhausted their efforts" and are basically conceding that the matter will now be laid to rest.
The report, by the Joint Terrorism Analysis Centre (JTAC), also states that MI5 still does not know whether the attacks of July 7 and July 21 were linked and whether there are any Al-Qaeda links.
“We do not know how, when and with whom the attack planning originated. And we still do not know what degree of external assistance either group had... Whilst investigations are progressing, there remain significant gaps in our knowledge... We still have no insight into the degree . . . of command and control of the operation.”
Lets enlighten MI5 a little with what we have found out.
Terror expert John Loftus has gone on record with the fact that one of the key figures behind the July 7 attacks, Haroon Rashid Aswat, was in the services of British Intelligence.
Aswat is a known Al Qaeda operative, yet has been used and protected on both sides of the Atlantic by MI6 and the CIA.
We have previously exposed how the Intelligence agencies funded, trained and armed Al Qaeda operatives.
The London Independent also reported 2 days before the Bombings how MI5 has previously used so called Al Qaeda operatives as informants, allowing them to be left alone as a trade off. This only came to light when Bisher al-Rawi was captured by the CIA and taken to the detention centre at Guantanamo Bay. The original Independent link has now been removed.
We have previously revealed how former MI5 officer David Shayler has alleged, and French intel sources have corroborated, that the MI6 paid a LibyanAl Qaeda cell £100,000 in 1995 to assassinate colonel Qaddafi. The use of the group that has come to be known as "Al Qaeda" as assets by Intelligence services the world over is well documented.
In addition to this perhaps MI5 should investigate just who was behind the drills that were being conducted in the same spots as the bombings at exactly the same times.
Surely this is beyond a coincidence and can be considered "a lead" in any investigation. The company that ordered the drills has still not been named, we only know that those carrying out the drills were in the employ of a Visor Consultants, which bills itself as a 'crisis management' advice company, better known to you and I as a PR firm.
Managing Director Peter Poweris a former Scotland Yard official, working at one time with the Anti Terrorist Branch.
Another lead to follow up would be to ascertain why credible witnesses described the bombs and resulting damage as coming from underneath the trains.
"The policeman said 'mind that hole, that's where the bomb was'. The metal was pushed upwards as if the bomb was underneath the train. They seem to think the bomb was left in a bag, but I don't remember anybody being where the bomb was, or any bag," one witness said. And one more direction the investigation should take is to ascertain why many had prior knowledge of both the July 7 and 21 attacks and where that prior knowledge came from.
Scotland Yard informed the Israeli Embassy in London before the bombings on the 7th, they also knew the second round of bombings was going to happen. But it seems that somehow Israel already knew about the attacks because they had issued a warning to British intelligence "a couple of days before".
Further indication of prior knowledge can be found in activity on the stock market days before the attacks. Who shorted British pound? The currency fell an unprecedented 6% in 10 days before London terror attacks, suggesting that the perpetrators knew how to fix the market to reap huge profits, or that some traders had inside knowledge.
"This was an almost unprecedented weakness and far too sharp to be a coincidence," one economist with more than 35 years of experience in the investment industry commented.
In a similar vain it seems that Chairman of the Federal Reserve, Alan Greenspan also had a feeling terror attacks were imminent.
It is highly likely that the MI5 report has been leaked on purpose in order to dispel rumours of inside involvement. Is it really likely that the world's foremost intelligence agency with all the technology, funding and manpower has absolutely no idea whatsoever about 7/7?
It is not unknown for MI5 to put out disinfo in order to shift the public perspective and possibly use in conjunction with later events.
At the height of the furor over the Princess Diana murder, purported MI5 documents were released that indicated a cover up had been carried out and that implicated the British secret services. It was later reveled that these documents had been carefully prepared to be easily spotted as fakes after some study.
One intriguing aspect of the London Bombing report is the fact that the MI5 codename for the event is "Stepford".
The four "bombers" are referred to as the "Stepford four". Why is this the case?
There is no place in the UK called Stepford, the word HAS to be a reference to the novel and film The Stepford Wives. Of course the plot of this sci-fi film is that the the wives of Stepford are actually completely submissive servants, gynoids created by an elite group of men.
The only entry in the dictionary for the word Stepford has the following description: pertaining to a person with a conforming and compliant attitude, much like a robot .
So does this explain why the four bombers seemed to be completely calm, acting normally, going for Big Macs, buying return tickets, arguing over being short changed before they blew themselves up?
I am NOT suggesting that they were literally robots before that gets taken out of context, yet the MI5 codename is very revealing in that it suggests the operation was a carefully coordinated and controlled one with four compliant and malleable patsies following direct orders.
Now if MI5 has no idea who was behind the operation or whether there were any orders coming from a mastermind, why would they give the event the codename "Stepford"?
We welcome any rational alternative explanations for this.
Perhaps even more intriguing is the codename for the July 21 failed bombings. MI5 refer to this event as "Hat".
What kind of codename is Hat? It describes nothing about the events of 21/7.
The literal meaning of the word hat is "a cover for the head". i don't see any other possible meaning the word hat can have.
If we are to take the first bombing operation as the "head" then are MI5 suggesting 21/7 is some kind of cover for it?
Related: London Bombing Data Page
Get Alex Jones and Paul Joseph Watson's books, ALL Alex's documentary films, films by other authors, audio interviews and special reports. Sign up at Prison Planet.tv - CLICK HERE.
Leaked MI5 London Bombing report may be disinfoWhy are bombers referred to as "Stepford Four"?
Steve Watson / Prisonplanet January 30 2006
We have tirelessly exposed the inconsistencies and unreported facts surrounding the July London Bombings, this weekend saw a few more emerge.
A supposed leaked MI5 report suggests that the intelligence agencies have no leads and know very little about who was behind the July 7 attacks.
“We know little about what three of the bombers did in Pakistan, when attack planning began, how and when the attackers were recruited, the extent of any external direction or assistance and the extent and role of any wider network.”
This is very convenient for MI5 because it means they have "exhausted their efforts" and are basically conceding that the matter will now be laid to rest.
The report, by the Joint Terrorism Analysis Centre (JTAC), also states that MI5 still does not know whether the attacks of July 7 and July 21 were linked and whether there are any Al-Qaeda links.
“We do not know how, when and with whom the attack planning originated. And we still do not know what degree of external assistance either group had... Whilst investigations are progressing, there remain significant gaps in our knowledge... We still have no insight into the degree . . . of command and control of the operation.”
Lets enlighten MI5 a little with what we have found out.
Terror expert John Loftus has gone on record with the fact that one of the key figures behind the July 7 attacks, Haroon Rashid Aswat, was in the services of British Intelligence.
Aswat is a known Al Qaeda operative, yet has been used and protected on both sides of the Atlantic by MI6 and the CIA.
We have previously exposed how the Intelligence agencies funded, trained and armed Al Qaeda operatives.
The London Independent also reported 2 days before the Bombings how MI5 has previously used so called Al Qaeda operatives as informants, allowing them to be left alone as a trade off. This only came to light when Bisher al-Rawi was captured by the CIA and taken to the detention centre at Guantanamo Bay. The original Independent link has now been removed.
We have previously revealed how former MI5 officer David Shayler has alleged, and French intel sources have corroborated, that the MI6 paid a LibyanAl Qaeda cell £100,000 in 1995 to assassinate colonel Qaddafi. The use of the group that has come to be known as "Al Qaeda" as assets by Intelligence services the world over is well documented.
In addition to this perhaps MI5 should investigate just who was behind the drills that were being conducted in the same spots as the bombings at exactly the same times.
Surely this is beyond a coincidence and can be considered "a lead" in any investigation. The company that ordered the drills has still not been named, we only know that those carrying out the drills were in the employ of a Visor Consultants, which bills itself as a 'crisis management' advice company, better known to you and I as a PR firm.
Managing Director Peter Poweris a former Scotland Yard official, working at one time with the Anti Terrorist Branch.
Another lead to follow up would be to ascertain why credible witnesses described the bombs and resulting damage as coming from underneath the trains.
"The policeman said 'mind that hole, that's where the bomb was'. The metal was pushed upwards as if the bomb was underneath the train. They seem to think the bomb was left in a bag, but I don't remember anybody being where the bomb was, or any bag," one witness said. And one more direction the investigation should take is to ascertain why many had prior knowledge of both the July 7 and 21 attacks and where that prior knowledge came from.
Scotland Yard informed the Israeli Embassy in London before the bombings on the 7th, they also knew the second round of bombings was going to happen. But it seems that somehow Israel already knew about the attacks because they had issued a warning to British intelligence "a couple of days before".
Further indication of prior knowledge can be found in activity on the stock market days before the attacks. Who shorted British pound? The currency fell an unprecedented 6% in 10 days before London terror attacks, suggesting that the perpetrators knew how to fix the market to reap huge profits, or that some traders had inside knowledge.
"This was an almost unprecedented weakness and far too sharp to be a coincidence," one economist with more than 35 years of experience in the investment industry commented.
In a similar vain it seems that Chairman of the Federal Reserve, Alan Greenspan also had a feeling terror attacks were imminent.
It is highly likely that the MI5 report has been leaked on purpose in order to dispel rumours of inside involvement. Is it really likely that the world's foremost intelligence agency with all the technology, funding and manpower has absolutely no idea whatsoever about 7/7?
It is not unknown for MI5 to put out disinfo in order to shift the public perspective and possibly use in conjunction with later events.
At the height of the furor over the Princess Diana murder, purported MI5 documents were released that indicated a cover up had been carried out and that implicated the British secret services. It was later reveled that these documents had been carefully prepared to be easily spotted as fakes after some study.
One intriguing aspect of the London Bombing report is the fact that the MI5 codename for the event is "Stepford".
The four "bombers" are referred to as the "Stepford four". Why is this the case?
There is no place in the UK called Stepford, the word HAS to be a reference to the novel and film The Stepford Wives. Of course the plot of this sci-fi film is that the the wives of Stepford are actually completely submissive servants, gynoids created by an elite group of men.
The only entry in the dictionary for the word Stepford has the following description: pertaining to a person with a conforming and compliant attitude, much like a robot .
So does this explain why the four bombers seemed to be completely calm, acting normally, going for Big Macs, buying return tickets, arguing over being short changed before they blew themselves up?
I am NOT suggesting that they were literally robots before that gets taken out of context, yet the MI5 codename is very revealing in that it suggests the operation was a carefully coordinated and controlled one with four compliant and malleable patsies following direct orders.
Now if MI5 has no idea who was behind the operation or whether there were any orders coming from a mastermind, why would they give the event the codename "Stepford"?
We welcome any rational alternative explanations for this.
Perhaps even more intriguing is the codename for the July 21 failed bombings. MI5 refer to this event as "Hat".
What kind of codename is Hat? It describes nothing about the events of 21/7.
The literal meaning of the word hat is "a cover for the head". i don't see any other possible meaning the word hat can have.
If we are to take the first bombing operation as the "head" then are MI5 suggesting 21/7 is some kind of cover for it?
Related: London Bombing Data Page
Get Alex Jones and Paul Joseph Watson's books, ALL Alex's documentary films, films by other authors, audio interviews and special reports. Sign up at Prison Planet.tv - CLICK HERE.
Informed Comment
Informed Comment
Bombings of Churches Bush and Blair Plotted to Ignore Security Council Who woulda thunk it? Bush and Blair plotted to go to war against Iraq even if the UN Security Council declined to authorize it. The Scotsman summarizes findings of Phillipe Sands: "Prof Sands' book, entitled Lawless World, claims that president Bush had earlier displayed open contempt for the UN during the summit, made wild threats against Iraq dictator Saddam Hussein and displayed astounding ignorance of the likely post-war problems." Now Bush will come out on television Tuesday night and lie about the situation in Iraq to his gullible followers.Guerrillas set off car bombs outside churches in Baghdad and Kirkuk on Sunday, and also targeted a Vatican office. The 8 bombs killed 3 and wounded 17. Many of Iraq's originally 750,000 Christians have already fled, mainly to Syria or Detroit, and some observers fear the community will dwindle to virtually nothing if these attacks continue. Although Iraq's Christians are among the oldest such communities in the world, and are indigenous, radical Muslim guerrillas often code them as "foreign" or allied to the largely Christian American occupiers. There was also other guerrilla violence in Iraq on Sunday, which left altogether at least 25 dead.Some 1500 Shiites demonstrated in the southern port city of Basra (pop. 1.3 mn.) against the British authorities. They were upset about British arrests of policemen that London believes were connected to puritan militias that sometimes acted as death squads. The elected governor of Basra province last Friday threatened to cease cooperating with the British over the arrests.Al-Zaman reports that [Ar.] Kurdish leader Massoud Barzani and Shiite leader Abdul Aziz al-Hakim began their deliberations, in a meeting characterized by much formal protocol, on Sunday evening. The negotiations, to be continued on Monday, are expected to take weeks to conclude. Hadi al-Amiri, secretary general of the paramilitary [Shiite fundamentalist] Badr Corps, announced that "The United Iraqi Alliance considers [its possession of] the ministry of the interior a red line that cannot be crossed." [The Iraqi Interior is like the US FBI.] He told al-Zaman that the UIA "Gives the utmost importance to security in Iraq. Prominent personalities in the UIA had been victims during the extinct regime of the former security apparatus. For this reason, we cannot consider stepping down from the ministry of the interior." Amiri revealed that he had been visited by Sunni Arab secular leader Salih al-Mutlak in connection with discussions on forming the new government, but said that he did not know if al-Mutlak had asked the UIA to join them in a national unity government.Young Shiite nationalist cleric Muqtada al-Sadr's bloc in parliament will give him increased clout in the new government, the CSM points out. Amatzia Baram points out that he will push for puritanism and anti-Americanism, and will also reach out to fundamentalist Sunni Arabs.Iraq's oil ministry is again leaderless and in turmoil, at a time when the industry can afford neither. Despite engineering feats accomplished by American teams, the Iraqi petroleum industry is a mess.Number of US military personnel just forced to serve extended duty: 50,000.Number by which junior enlisted soldiers have declined in the US military since 2001: 19,000.New cap on interest rate on government student loans, which Republicans are raising in order to pay for the Iraq War and Hurricane Katrina: 6.9%.The US military's practice of taking suspected guerrilla leaders' wives hostage will backfire, according to expert observers.The complexities of Iraq are underlined by the increasingly flourishing condition of the holy Shiite city of Najaf south of Baghdad, which is fairly secure and peaceful. Its pharmacies have medicines, it has 20 hours of electricity a day, and US troops withdrew last September to a base well away from the city, reducing the chance of provocations. Plans are going forward for an airport. Some 3 million pilgrims a year are already coming, mostly from Iran but also from Lebanon, Kuwait, Pakistan and elsewhere, to visit the shrine of Imam Ali. The combination of resources from Iran and from the wealthy merchants and shopkeepers of the city, the calming influence of Grand Ayatollah Sistani, who resides there, the loyalty of the tribal levies to Sistani, the induction of members of the Badr Corps paramilitary into the provincial police and government military, and the defeat of the radical Mahdi Army of Muqtada al-Sadr in August 2004 by the joint efforts of Sistani, the other grand ayatollahs and the US Marines, have all contributed to this current flourishing situation. Ironically, Najaf's success is a rebuke to Paul Bremer, who once cancelled an election there because he feared Iranian influence in the city. In the end, Iran wins this one.AP explains the long relationship between the Iraqi Shiites and their Iranian co-religionists.Here's hoping Bob Woodruff and Doug Vogt pull through. We talk about people getting blown up every day in Iraq, but when it is someone you feel you know and admire through television, it is personal.
posted by Juan @ 1/30/2006 06:30:00 AM
6 Comments:
At 10:35 AM, azeem said...
one aspect regarding flourishing of najaf:the city's repute has not been for the pilgrimage or trade specifically but for it's hawza, the religious university. so, the real progress should be guaged when its hawza returns to normal, as still it has no match with the Qum's hawza. I request any informed reader to please give some input on the status of najaf's hawza. As far as i know there exists a drought of the top teachers after the present marjiya. Even i doubt tops like Sistani, Saeed Al-hakim & Ishaq Fayad are engaged in any teaching work.
At 2:38 PM, Clive of the Islands said...
Australia funded the Iraqi insurgency that's cost the lives of thousands of Americans and Iraqis, claims Prime Minister in waiting.Australia paid $300m to Saddam to win wheat contracts. This is the largest kickback in the UN Oil-for-food scandal. The $300m may well have helped fund the insurgency. Documents released by the judicial inquiry tie the Australian government to the scandal. But the government is refusing to investigate its own role and continues to restrict the inquiry terms of reference to corporate links. The UN requested the inquiry after it found the Australian company AWB to be the largest implicated.
At 3:20 PM, erich kuerschner said...
I found your statement: Bush and Blair plotted to go to war against Iraq even if the UN Security Council declined to authorize it highly misleading.It might imply to some readers that the Bush/Rove spin that UN Resolution 1441 authorized the US to go to War, and a second UN Resolution was unnecessary had some truth.In fact, despite brute coercion and electronic eavesdropping of the UN Security Council by Condoleza Rice, the language of UN Resolution proclaiming “dire consequences” was agreed to ON THE CONDITION that it was agreed that this was NOT an authorization of war. France and Russia were especially explicit on this point.From Wikipedia: “Saddam immediately agreed to allow weapon inspectors to return (despite his awareness that UNSCOM had morphed into a CIA driven agenda, focused on collecting war information such as GPS data on Palace coordinates for “smart bombs”). While the first Blix report was negative, subsequent reports were not.” While your statement is technically correct, please clarify to your readers that the UN NEVER authorized the war in Iraq. The Cheney cabal has spun this so much this so much, and the MSM is complicit in this spin, that we cannot afford to have the public misconstrue that you support the view that the UN condoned the US invasion and occupation of Iraq. As you well know (but the MSM forgets) On September 16, 2004 Kofi Annan, the Secretary General of the United Nations, speaking on the invasion said "I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal." Thanks again for all your wonderful reporting!
At 4:40 PM, Mr. Banks said...
The oil-spot strategy works! A couple months ago, people managed to run the oil-spot strategy up the flagpole. The idea was that the US military would sieze & hold a handful of cities, create strong security within them, bring in local people to help run the place and then pump the city full of money. Then this successs would slowly spread to other cities. We kicked the idea around for a week, and then realized it would require more troops and more money. Our military is breaking and our bank is broke, so we dropped it. Now the idea has been vindicated in Najaf, where it seems to be working very well for the Iranians.
At 10:22 PM, Melanie said...
Wow, Juan,Heroic post!
At 1:17 AM, kitchen sink think tank said...
There is something unusual about the attack on Bob Woodruff and his camera man. Not that was hit by an IED but rather that they were riding in the lead vehicle of the convoy. Putting the asset you are trying to protect in the lead vehicle is not standard operating proceedure. Does this suggest an ambush arranged by the Iraqi army unit they were traveling with?
Bombings of Churches Bush and Blair Plotted to Ignore Security Council Who woulda thunk it? Bush and Blair plotted to go to war against Iraq even if the UN Security Council declined to authorize it. The Scotsman summarizes findings of Phillipe Sands: "Prof Sands' book, entitled Lawless World, claims that president Bush had earlier displayed open contempt for the UN during the summit, made wild threats against Iraq dictator Saddam Hussein and displayed astounding ignorance of the likely post-war problems." Now Bush will come out on television Tuesday night and lie about the situation in Iraq to his gullible followers.Guerrillas set off car bombs outside churches in Baghdad and Kirkuk on Sunday, and also targeted a Vatican office. The 8 bombs killed 3 and wounded 17. Many of Iraq's originally 750,000 Christians have already fled, mainly to Syria or Detroit, and some observers fear the community will dwindle to virtually nothing if these attacks continue. Although Iraq's Christians are among the oldest such communities in the world, and are indigenous, radical Muslim guerrillas often code them as "foreign" or allied to the largely Christian American occupiers. There was also other guerrilla violence in Iraq on Sunday, which left altogether at least 25 dead.Some 1500 Shiites demonstrated in the southern port city of Basra (pop. 1.3 mn.) against the British authorities. They were upset about British arrests of policemen that London believes were connected to puritan militias that sometimes acted as death squads. The elected governor of Basra province last Friday threatened to cease cooperating with the British over the arrests.Al-Zaman reports that [Ar.] Kurdish leader Massoud Barzani and Shiite leader Abdul Aziz al-Hakim began their deliberations, in a meeting characterized by much formal protocol, on Sunday evening. The negotiations, to be continued on Monday, are expected to take weeks to conclude. Hadi al-Amiri, secretary general of the paramilitary [Shiite fundamentalist] Badr Corps, announced that "The United Iraqi Alliance considers [its possession of] the ministry of the interior a red line that cannot be crossed." [The Iraqi Interior is like the US FBI.] He told al-Zaman that the UIA "Gives the utmost importance to security in Iraq. Prominent personalities in the UIA had been victims during the extinct regime of the former security apparatus. For this reason, we cannot consider stepping down from the ministry of the interior." Amiri revealed that he had been visited by Sunni Arab secular leader Salih al-Mutlak in connection with discussions on forming the new government, but said that he did not know if al-Mutlak had asked the UIA to join them in a national unity government.Young Shiite nationalist cleric Muqtada al-Sadr's bloc in parliament will give him increased clout in the new government, the CSM points out. Amatzia Baram points out that he will push for puritanism and anti-Americanism, and will also reach out to fundamentalist Sunni Arabs.Iraq's oil ministry is again leaderless and in turmoil, at a time when the industry can afford neither. Despite engineering feats accomplished by American teams, the Iraqi petroleum industry is a mess.Number of US military personnel just forced to serve extended duty: 50,000.Number by which junior enlisted soldiers have declined in the US military since 2001: 19,000.New cap on interest rate on government student loans, which Republicans are raising in order to pay for the Iraq War and Hurricane Katrina: 6.9%.The US military's practice of taking suspected guerrilla leaders' wives hostage will backfire, according to expert observers.The complexities of Iraq are underlined by the increasingly flourishing condition of the holy Shiite city of Najaf south of Baghdad, which is fairly secure and peaceful. Its pharmacies have medicines, it has 20 hours of electricity a day, and US troops withdrew last September to a base well away from the city, reducing the chance of provocations. Plans are going forward for an airport. Some 3 million pilgrims a year are already coming, mostly from Iran but also from Lebanon, Kuwait, Pakistan and elsewhere, to visit the shrine of Imam Ali. The combination of resources from Iran and from the wealthy merchants and shopkeepers of the city, the calming influence of Grand Ayatollah Sistani, who resides there, the loyalty of the tribal levies to Sistani, the induction of members of the Badr Corps paramilitary into the provincial police and government military, and the defeat of the radical Mahdi Army of Muqtada al-Sadr in August 2004 by the joint efforts of Sistani, the other grand ayatollahs and the US Marines, have all contributed to this current flourishing situation. Ironically, Najaf's success is a rebuke to Paul Bremer, who once cancelled an election there because he feared Iranian influence in the city. In the end, Iran wins this one.AP explains the long relationship between the Iraqi Shiites and their Iranian co-religionists.Here's hoping Bob Woodruff and Doug Vogt pull through. We talk about people getting blown up every day in Iraq, but when it is someone you feel you know and admire through television, it is personal.
posted by Juan @ 1/30/2006 06:30:00 AM
6 Comments:
At 10:35 AM, azeem said...
one aspect regarding flourishing of najaf:the city's repute has not been for the pilgrimage or trade specifically but for it's hawza, the religious university. so, the real progress should be guaged when its hawza returns to normal, as still it has no match with the Qum's hawza. I request any informed reader to please give some input on the status of najaf's hawza. As far as i know there exists a drought of the top teachers after the present marjiya. Even i doubt tops like Sistani, Saeed Al-hakim & Ishaq Fayad are engaged in any teaching work.
At 2:38 PM, Clive of the Islands said...
Australia funded the Iraqi insurgency that's cost the lives of thousands of Americans and Iraqis, claims Prime Minister in waiting.Australia paid $300m to Saddam to win wheat contracts. This is the largest kickback in the UN Oil-for-food scandal. The $300m may well have helped fund the insurgency. Documents released by the judicial inquiry tie the Australian government to the scandal. But the government is refusing to investigate its own role and continues to restrict the inquiry terms of reference to corporate links. The UN requested the inquiry after it found the Australian company AWB to be the largest implicated.
At 3:20 PM, erich kuerschner said...
I found your statement: Bush and Blair plotted to go to war against Iraq even if the UN Security Council declined to authorize it highly misleading.It might imply to some readers that the Bush/Rove spin that UN Resolution 1441 authorized the US to go to War, and a second UN Resolution was unnecessary had some truth.In fact, despite brute coercion and electronic eavesdropping of the UN Security Council by Condoleza Rice, the language of UN Resolution proclaiming “dire consequences” was agreed to ON THE CONDITION that it was agreed that this was NOT an authorization of war. France and Russia were especially explicit on this point.From Wikipedia: “Saddam immediately agreed to allow weapon inspectors to return (despite his awareness that UNSCOM had morphed into a CIA driven agenda, focused on collecting war information such as GPS data on Palace coordinates for “smart bombs”). While the first Blix report was negative, subsequent reports were not.” While your statement is technically correct, please clarify to your readers that the UN NEVER authorized the war in Iraq. The Cheney cabal has spun this so much this so much, and the MSM is complicit in this spin, that we cannot afford to have the public misconstrue that you support the view that the UN condoned the US invasion and occupation of Iraq. As you well know (but the MSM forgets) On September 16, 2004 Kofi Annan, the Secretary General of the United Nations, speaking on the invasion said "I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal." Thanks again for all your wonderful reporting!
At 4:40 PM, Mr. Banks said...
The oil-spot strategy works! A couple months ago, people managed to run the oil-spot strategy up the flagpole. The idea was that the US military would sieze & hold a handful of cities, create strong security within them, bring in local people to help run the place and then pump the city full of money. Then this successs would slowly spread to other cities. We kicked the idea around for a week, and then realized it would require more troops and more money. Our military is breaking and our bank is broke, so we dropped it. Now the idea has been vindicated in Najaf, where it seems to be working very well for the Iranians.
At 10:22 PM, Melanie said...
Wow, Juan,Heroic post!
At 1:17 AM, kitchen sink think tank said...
There is something unusual about the attack on Bob Woodruff and his camera man. Not that was hit by an IED but rather that they were riding in the lead vehicle of the convoy. Putting the asset you are trying to protect in the lead vehicle is not standard operating proceedure. Does this suggest an ambush arranged by the Iraqi army unit they were traveling with?
mparent7777: Military Hides Cause of Women Soldiers' Deaths - A Must Read
mparent7777: Military Hides Cause of Women Soldiers' Deaths - A Must Read
By Marjorie Cohn t r u t h o u t Report
Monday 30 January 2006
In a startling revelation, the former commander of Abu Ghraib prison testified that Lt. Gen. Ricardo Sanchez, former senior US military commander in Iraq, gave orders to cover up the cause of death for some female American soldiers serving in Iraq.
Last week, Col. Janis Karpinski told a panel of judges at the Commission of Inquiry for Crimes against Humanity Committed by the Bush Administration in New York that several women had died of dehydration because they refused to drink liquids late in the day. They were afraid of being assaulted or even raped by male soldiers if they had to use the women's latrine after dark.
The latrine for female soldiers at Camp Victory wasn't located near their barracks, so they had to go outside if they needed to use the bathroom. "There were no lights near any of their facilities, so women were doubly easy targets in the dark of the night," Karpinski told retired US Army Col. David Hackworth in a September 2004 interview. It was there that male soldiers assaulted and raped women soldiers. So the women took matters into their own hands. They didn't drink in the late afternoon so they wouldn't have to urinate at night. They didn't get raped. But some died of dehydration in the desert heat, Karpinski said.
Karpinski testified that a surgeon for the coalition's joint task force said in a briefing that "women in fear of getting up in the hours of darkness to go out to the port-a-lets or the latrines were not drinking liquids after 3 or 4 in the afternoon, and in 120 degree heat or warmer, because there was no air-conditioning at most of the facilities, they were dying from dehydration in their sleep."
"And rather than make everybody aware of that - because that's shocking, and as a leader if that's not shocking to you then you're not much of a leader - what they told the surgeon to do is don't brief those details anymore. And don't say specifically that they're women. You can provide that in a written report but don't brief it in the open anymore."
For example, Maj. Gen. Walter Wojdakowski, Sanchez's top deputy in Iraq, saw "dehydration" listed as the cause of death on the death certificate of a female master sergeant in September 2003. Under orders from Sanchez, he directed that the cause of death no longer be listed, Karpinski stated. The official explanation for this was to protect the women's privacy rights.
Sanchez's attitude was: "The women asked to be here, so now let them take what comes with the territory," Karpinski quoted him as saying. Karpinski told me that Sanchez, who was her boss, was very sensitive to the political ramifications of everything he did. She thinks it likely that when the information about the cause of these women's deaths was passed to the Pentagon, Donald Rumsfeld ordered that the details not be released. "That's how Rumsfeld works," she said.
"It was out of control," Karpinski told a group of students at Thomas Jefferson School of Law last October. There was an 800 number women could use to report sexual assaults. But no one had a phone, she added. And no one answered that number, which was based in the United States. Any woman who successfully connected to it would get a recording. Even after more than 83 incidents were reported during a six-month period in Iraq and Kuwait, the 24-hour rape hot line was still answered by a machine that told callers to leave a message.
"There were countless such situations all over the theater of operations - Iraq and Kuwait - because female soldiers didn't have a voice, individually or collectively," Karpinski told Hackworth. "Even as a general I didn't have a voice with Sanchez, so I know what the soldiers were facing. Sanchez did not want to hear about female soldier requirements and/or issues."
Karpinski was the highest officer reprimanded for the Abu Ghraib torture scandal, although the details of interrogations were carefully hidden from her. Demoted from Brigadier General to Colonel, Karpinski feels she was chosen as a scapegoat because she was a female.
Sexual assault in the US military has become a hot topic in the last few years, "not just because of the high number of rapes and other assaults, but also because of the tendency to cover up assaults and to harass or retaliate against women who report assaults," according to Kathy Gilberd, co-chair of the National Lawyers Guild's Military Law Task Force.
This problem has become so acute that the Army has set up its own sexual assault web site.
In February 2004, Rumsfeld directed the Under Secretary of Defense for Personnel and Readiness to undertake a 90-day review of sexual assault policies. "Sexual assault will not be tolerated in the Department of Defense," Rumsfeld declared.
The 99-page report was issued in April 2004. It affirmed, "The chain of command is responsible for ensuring that policies and practices regarding crime prevention and security are in place for the safety of service members." The rates of reported alleged sexual assault were 69.1 and 70.0 per 100,000 uniformed service members in 2002 and 2003. Yet those rates were not directly comparable to rates reported by the Department of Justice, due to substantial differences in the definition of sexual assault.
Notably, the report found that low sociocultural power (i.e., age, education, race/ethnicity, marital status) and low organizational power (i.e., pay grade and years of active duty service) were associated with an increased likelihood of both sexual assault and sexual harassment.
The Department of Defense announced a new policy on sexual assault prevention and response on January 3, 2005. It was a reaction to media reports and public outrage about sexual assaults against women in the US military in Iraq and Afghanistan, and ongoing sexual assaults and cover-ups at the Air Force Academy in Colorado, Gilberd said. As a result, Congress demanded that the military review the problem, and the Defense Authorization Act of 2005 required a new policy be put in place by January 1.
The policy is a series of very brief "directive-type memoranda" for the Secretaries of the military services from the Under Secretary of Defense for Personnel and Readiness. "Overall, the policy emphasizes that sexual assault harms military readiness, that education about sexual assault policy needs to be increased and repeated, and that improvements in response to sexual assaults are necessary to make victims more willing to report assaults," Gilberd notes. "Unfortunately," she added "analysis of the issues is shallow, and the plans for addressing them are limited."
Commands can reject the complaints if they decide they aren't credible, and there is limited protection against retaliation against the women who come forward, according to Gilberd. "People who report assaults still face command disbelief, illegal efforts to protect the assaulters, informal harassment from assaulters, their friends or the command itself," she said.
But most shameful is Sanchez's cover-up of the dehydration deaths of women that occurred in Iraq. Sanchez is no stranger to outrageous military orders. He was heavily involved in the torture scandal that surfaced at Abu Ghraib. Sanchez approved the use of unmuzzled dogs and the insertion of prisoners head-first into sleeping bags after which they are tied with an electrical cord and their are mouths covered. At least one person died as the result of the sleeping bag technique. Karpinski charges that Sanchez attempted to hide the torture after the hideous photographs became public.
Sanchez reportedly plans to retire soon, according to an article in the International Herald Tribune earlier this month. But Rumsfeld recently considered elevating the 3-star general to a 4-star. The Tribune also reported that Brig. Gen. Vincent Brooks, the Army's chief spokesman, said in an email message, "The Army leaders do have confidence in LTG Sanchez."
http://www.truthout.org/docs_2006/013006J.shtml#
By Marjorie Cohn t r u t h o u t Report
Monday 30 January 2006
In a startling revelation, the former commander of Abu Ghraib prison testified that Lt. Gen. Ricardo Sanchez, former senior US military commander in Iraq, gave orders to cover up the cause of death for some female American soldiers serving in Iraq.
Last week, Col. Janis Karpinski told a panel of judges at the Commission of Inquiry for Crimes against Humanity Committed by the Bush Administration in New York that several women had died of dehydration because they refused to drink liquids late in the day. They were afraid of being assaulted or even raped by male soldiers if they had to use the women's latrine after dark.
The latrine for female soldiers at Camp Victory wasn't located near their barracks, so they had to go outside if they needed to use the bathroom. "There were no lights near any of their facilities, so women were doubly easy targets in the dark of the night," Karpinski told retired US Army Col. David Hackworth in a September 2004 interview. It was there that male soldiers assaulted and raped women soldiers. So the women took matters into their own hands. They didn't drink in the late afternoon so they wouldn't have to urinate at night. They didn't get raped. But some died of dehydration in the desert heat, Karpinski said.
Karpinski testified that a surgeon for the coalition's joint task force said in a briefing that "women in fear of getting up in the hours of darkness to go out to the port-a-lets or the latrines were not drinking liquids after 3 or 4 in the afternoon, and in 120 degree heat or warmer, because there was no air-conditioning at most of the facilities, they were dying from dehydration in their sleep."
"And rather than make everybody aware of that - because that's shocking, and as a leader if that's not shocking to you then you're not much of a leader - what they told the surgeon to do is don't brief those details anymore. And don't say specifically that they're women. You can provide that in a written report but don't brief it in the open anymore."
For example, Maj. Gen. Walter Wojdakowski, Sanchez's top deputy in Iraq, saw "dehydration" listed as the cause of death on the death certificate of a female master sergeant in September 2003. Under orders from Sanchez, he directed that the cause of death no longer be listed, Karpinski stated. The official explanation for this was to protect the women's privacy rights.
Sanchez's attitude was: "The women asked to be here, so now let them take what comes with the territory," Karpinski quoted him as saying. Karpinski told me that Sanchez, who was her boss, was very sensitive to the political ramifications of everything he did. She thinks it likely that when the information about the cause of these women's deaths was passed to the Pentagon, Donald Rumsfeld ordered that the details not be released. "That's how Rumsfeld works," she said.
"It was out of control," Karpinski told a group of students at Thomas Jefferson School of Law last October. There was an 800 number women could use to report sexual assaults. But no one had a phone, she added. And no one answered that number, which was based in the United States. Any woman who successfully connected to it would get a recording. Even after more than 83 incidents were reported during a six-month period in Iraq and Kuwait, the 24-hour rape hot line was still answered by a machine that told callers to leave a message.
"There were countless such situations all over the theater of operations - Iraq and Kuwait - because female soldiers didn't have a voice, individually or collectively," Karpinski told Hackworth. "Even as a general I didn't have a voice with Sanchez, so I know what the soldiers were facing. Sanchez did not want to hear about female soldier requirements and/or issues."
Karpinski was the highest officer reprimanded for the Abu Ghraib torture scandal, although the details of interrogations were carefully hidden from her. Demoted from Brigadier General to Colonel, Karpinski feels she was chosen as a scapegoat because she was a female.
Sexual assault in the US military has become a hot topic in the last few years, "not just because of the high number of rapes and other assaults, but also because of the tendency to cover up assaults and to harass or retaliate against women who report assaults," according to Kathy Gilberd, co-chair of the National Lawyers Guild's Military Law Task Force.
This problem has become so acute that the Army has set up its own sexual assault web site.
In February 2004, Rumsfeld directed the Under Secretary of Defense for Personnel and Readiness to undertake a 90-day review of sexual assault policies. "Sexual assault will not be tolerated in the Department of Defense," Rumsfeld declared.
The 99-page report was issued in April 2004. It affirmed, "The chain of command is responsible for ensuring that policies and practices regarding crime prevention and security are in place for the safety of service members." The rates of reported alleged sexual assault were 69.1 and 70.0 per 100,000 uniformed service members in 2002 and 2003. Yet those rates were not directly comparable to rates reported by the Department of Justice, due to substantial differences in the definition of sexual assault.
Notably, the report found that low sociocultural power (i.e., age, education, race/ethnicity, marital status) and low organizational power (i.e., pay grade and years of active duty service) were associated with an increased likelihood of both sexual assault and sexual harassment.
The Department of Defense announced a new policy on sexual assault prevention and response on January 3, 2005. It was a reaction to media reports and public outrage about sexual assaults against women in the US military in Iraq and Afghanistan, and ongoing sexual assaults and cover-ups at the Air Force Academy in Colorado, Gilberd said. As a result, Congress demanded that the military review the problem, and the Defense Authorization Act of 2005 required a new policy be put in place by January 1.
The policy is a series of very brief "directive-type memoranda" for the Secretaries of the military services from the Under Secretary of Defense for Personnel and Readiness. "Overall, the policy emphasizes that sexual assault harms military readiness, that education about sexual assault policy needs to be increased and repeated, and that improvements in response to sexual assaults are necessary to make victims more willing to report assaults," Gilberd notes. "Unfortunately," she added "analysis of the issues is shallow, and the plans for addressing them are limited."
Commands can reject the complaints if they decide they aren't credible, and there is limited protection against retaliation against the women who come forward, according to Gilberd. "People who report assaults still face command disbelief, illegal efforts to protect the assaulters, informal harassment from assaulters, their friends or the command itself," she said.
But most shameful is Sanchez's cover-up of the dehydration deaths of women that occurred in Iraq. Sanchez is no stranger to outrageous military orders. He was heavily involved in the torture scandal that surfaced at Abu Ghraib. Sanchez approved the use of unmuzzled dogs and the insertion of prisoners head-first into sleeping bags after which they are tied with an electrical cord and their are mouths covered. At least one person died as the result of the sleeping bag technique. Karpinski charges that Sanchez attempted to hide the torture after the hideous photographs became public.
Sanchez reportedly plans to retire soon, according to an article in the International Herald Tribune earlier this month. But Rumsfeld recently considered elevating the 3-star general to a 4-star. The Tribune also reported that Brig. Gen. Vincent Brooks, the Army's chief spokesman, said in an email message, "The Army leaders do have confidence in LTG Sanchez."
http://www.truthout.org/docs_2006/013006J.shtml#
AP Wire | 01/30/2006 | Summary Box: Senate ends debate on Alito
AP Wire | 01/30/2006 | Summary Box: Senate ends debate on Alito
Blogger Thoughts: This is more puny than I imagined.
Blogger Thoughts: This is more puny than I imagined.
The New York Review of Books: ON NSA SPYING: A LETTER TO CONGRESS
The New York Review of Books: ON NSA SPYING: A LETTER TO CONGRESS
ON NSA SPYING: A LETTER TO CONGRESS
By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne
George W. Bush(click for larger image)
Dear Members of Congress:
We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department's December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program.[1] Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.
The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).
With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).[2]
The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.
The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.
Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President's actions here.
1.
Congress did not implicitly authorize the NSA domestic spying program in the AUMF, and in fact expressly prohibited it in FISA
The DOJ concedes (Letter at 4) that the NSA program involves "electronic surveillance," which is defined in FISA to mean the interception of the contents of telephone, wire, or e-mail communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). The NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires—e.g., that the subject is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance not authorized by statute.
The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed on September 18, 2001, which empowers the President to use "all necessary and appropriate force against" al-Qaeda. According to the DOJ, collecting "signals intelligence" on the enemy, even if it involves tapping US phones without court approval or probable cause, is a "fundamental incident of war" authorized by the AUMF. This argument fails for four reasons.
First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.
As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated as the "exclusive means by which electronic surveillance...and the interception of domestic wire, oral, and electronic communications may be conducted." 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled "Authorization during time of war," FISA dictates that "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." 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war—a more formal step than an authorization such as the AUMF —the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization.[3] Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA's terms. The DOJ letter remarkably does not even mention FISA's fifteen-day war provision, which directly refutes the President's asserted "implied" authority.
In light of the specific and comprehensive regulation of FISA, especially the fifteen-day war provision, there is no basis for finding in the AUMF's general language implicit authority for unchecked warrantless domestic wiretapping. As Justice Frankfurter stated in rejecting a similar argument by President Truman when he sought to defend the seizure of the steel mills during the Korean War on the basis of implied congressional authorization:
It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is...to disrespect the whole legislative process and the constitutional division of authority between President and Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as "the exclusive means by which electronic surveillance...may be conducted." Repeals by implication are strongly disfavored; they can be established only by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137 (2001), and "‘the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).
Third, Attorney General Alberto Gonzales has admitted that the administration did not seek to amend FISA to authorize the NSA spying program because it was advised that Congress would reject such an amendment.[4] The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no.[5]
Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked war-rantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.[6]
2.
Construing FISA to prohibit warrantless domestic wiretapping does not raise any serious constitutional question, while construing the AUMF to authorize such wiretapping would raise serious questions under the Fourth Amendment
The DOJ argues that FISA and the AUMF should be construed to permit the NSA program's domestic surveillance because there otherwise might be a "conflict between FISA and the President's Article II authority as Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above is not ambiguous, and therefore the constitutional avoidance doctrine is not even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no application in the absence of statutory ambiguity"). But were it implicated, it would work against the President, not in his favor. Construing FISA and the AUMF according to their plain meanings raises no serious constitutional questions regarding the President's duties under Article II. Construing the AUMF to permit unchecked warrantless wiretapping without probable cause, however, would raise serious questions under the Fourth Amendment.
A. FISA's Limitations are consistent with the President's Article II role
We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal—subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA was enacted, the federal law involving wiretapping specifically provided that "nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President...to obtain foreign intelligence information deemed essential to the security of the United States." 18 U.S.C. § 2511(3) (1976).
But FISA specifically repealed that provision, FISA § 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis, Congress noted, was "supported by two successive Attorneys General." Id.
To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of all constitutional postures." Id. at 640.
Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance.[7] FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within seventy-two hours. 50 U.S.C. § 1805(f).)
Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA.[8] The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture,[9] and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."[10] But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).[11]
B. Construing the AUMF to authorize warrantless domestic wiretapping would raise serious constitutional questions
The principle that ambiguous statutes should be construed to avoid serious constitutional questions works against the administration, not in its favor. Interpreting the AUMF and FISA to permit unchecked domestic wiretapping for the duration of the conflict with al-Qaeda would certainly raise serious constitutional questions. The Supreme Court has never upheld such a sweeping power to invade the privacy of Americans at home without individualized suspicion or judicial oversight.
The NSA surveillance program permits wiretapping within the United States without either of the safeguards presumptively required by the Fourth Amendment for electronic surveillance —individualized probable cause and a warrant or other order issued by a judge or magistrate. The Court has long held that wiretaps generally require a warrant and probable cause. Katz v. United States, 389 U.S. 347 (1967). And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States District Court, 407 U.S. 297 (1972). Although the Court in that case left open the question of the Fourth Amendment validity of warrantless wiretaps for foreign intelligence purposes, its precedents raise serious constitutional questions about the kind of open-ended authority the President has asserted with respect to the NSA program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth Amendment freedoms if domestic surveillance can be conducted solely in the discretion of the executive branch).
Indeed, serious Fourth Amendment questions about the validity of warrantless wiretapping led Congress to enact FISA, in order to "provide the secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this nation's commitment to privacy and individual rights." S. Rep. No. 95-604, at 15 (1978) (citing, inter alia, Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976), in which the court of appeals held that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of, nor acting in collaboration with, a foreign power).
Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls within an exception to the warrant and probable cause requirement for reasonable searches that serve "special needs" above and beyond ordinary law enforcement. But the existence of "special needs" has never been found to permit warrantless wiretapping. "Special needs" generally excuse the warrant and individualized suspicion requirements only where those requirements are impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA shows that foreign intelligence surveillance can be carried out through warrants based on individualized suspicion.
The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power." According to Attorney General Gonzales, the NSA may wiretap any person in the United States who so much as receives a communication from anyone abroad, if the administration deems either of the parties to be affiliated with al-Qaeda, a member of an organization affiliated with al-Qaeda, "working in support of al Qaeda," or "part of" an organization or group "that is supportive of al Qaeda."[12] Under this reasoning, a US citizen living here who received a phone call from another US citizen who attends a mosque that the administration believes is "supportive" of al-Qaeda could be wiretapped without a warrant. The absence of meaningful safeguards on the NSA program at a minimum raises serious questions about the validity of the program under the Fourth Amendment, and therefore supports an interpretation of the AUMF that does not undercut FISA's regulation of such conduct.
In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.[13]
We hope you find these views helpful to your consideration of the legality of the NSA domestic spying program.
Curtis Bradley, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office[14]
David Cole, Georgetown University Law Center
Walter Dellinger, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General
Ronald Dworkin, NYU Law School
Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover Institution
Philip B. Heymann, Harvard Law School, former Deputy Attorney General
Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ
Martin Lederman, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ
Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel
William S. Sessions, former Director, FBI, former Chief United States District Judge
Geoffrey Stone, Professor of Law and former Provost, University of Chicago
Kathleen Sullivan, Professor and former Dean, Stanford Law School
Laurence H. Tribe, Harvard Law School
William Van Alstyne, William & Mary Law School, former Justice Department attorney
Notes
[1] The Justice Department letter can be found at www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf.
[2] More detail about the operation of FISA can be found in Congressional Research Service, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" (January 5, 2006). This letter was drafted prior to release of the CRS Report, which corroborates the conclusions drawn here.
[3] "The Conferees intend that this [15-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.... The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720, at 34 (1978).
[4] Attorney General Gonzales stated, "We have had discussions with Congress in the past—certain members of Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (December 19, 2005), available at www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
[5] The administration had a convenient vehicle for seeking any such amendment in the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, enacted in October 2001. The Patriot Act amended FISA in several respects, including in sections 218 (allowing FISA wiretaps in criminal investigations) and 215 (popularly known as the "libraries provision"). Yet the administration did not ask Congress to amend FISA to authorize the warrantless electronic surveillance at issue here.
[6] The DOJ attempts to draw an analogy between FISA and 18 U.S.C. § 4001(a), which provides that the United States may not detain a US citizen "except pursuant to an act of Congress." The DOJ argues that just as the AUMF was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so the AUMF satisfies FISA's requirement that electronic surveillance be "authorized by statute." DOJ Letter at 3-4. The analogy is inapt. As noted above, FISA specifically limits warrantless domestic wartime surveillance to the first fifteen days of the conflict, and 18 U.S.C. § 2511(2)(f) specifies that existing law is the "exclusive means" for domestic wiretapping. Section 4001(a), by contrast, neither expressly addresses detention of the enemy during wartime nor attempts to create an exclusive mechanism for detention. Moreover, the analogy overlooks the carefully limited holding and rationale of the Hamdi plurality, which found the AUMF to be an "explicit congressional authorization for the detention of individuals in the narrow category we describe...who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network," and whom "Congress sought to target in passing the AUMF." 542 U.S. at 518. By the government's own admission, the NSA program is by no means so limited. See Gonzales/Hayden Press Briefing, supra note 4.
[7] See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's assertion of power to regulate the President's authorization of electronic surveillance for foreign intelligence purposes was "concurred in by the Attorney General"); Foreign Intelligence Electronic Surveillance: Hearings Before the Subcomm. on Legislation of the House Permanent Select Comm. on Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, to Edward P. Boland, Chairman, House Permanent Select Comm. on Intelligence (Apr. 18, 1978)) ("it seems unreasonable to conclude that Congress, in the exercise of its powers in this area, may not vest in the courts the authority to approve intelligence surveillance").
[8] Indeed, Article II imposes on the President the general obligation to enforce laws that Congress has validly enacted, including FISA: "he shall take Care that the Laws be faithfully executed..." (emphasis added). The use of the mandatory "shall" indicates that under our system of separation of powers, he is duty-bound to execute the provisions of FISA, not defy them.
[9] See Memorandum from Jay S. Bybee, Assistant Attorney General, Department of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), at 31.
[10] Memorandum from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, to the Deputy Counsel to the President, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (September 25, 2001), available at www.usdoj.gov/olc/warpowers925.htm (emphasis added).
[11] Three years ago, the FISA Court of Review suggested in dictum that Congress cannot "encroach on the President's constitutional power" to conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review, however, did not hold that FISA was unconstitutional, nor has any other court suggested that FISA's modest regulations constitute an impermissible encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President's powers were beyond congressional control. To the contrary, the Truong court indicated that FISA's restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added).
[12] See Gonzales/Hayden Press Briefing, supra note 4.
[13] During consideration of FISA, the House of Representatives noted, "The decision as to the standards governing when and how foreign intelligence electronic surveillance should be conducted is and should be a political decision...properly made by the political branches of Government together, not adopted by one branch on its own and with no regard for the other. Under our Constitution legislation is the embodiment of just such political decisions." H.R. Conf. Rep. No. 95-1283, pt. 1, at 21-22.
Attorney General Griffin Bell supported FISA in part because "no matter how well intentioned or ingenious the persons in the Executive branch who formulate these measures, the crucible of the legislative process will ensure that the procedures will be affirmed by that branch of government which is more directly responsible to the electorate." Foreign Intelligence Surveillance Act of 1978: Hearings Before the Subcommittee on Intelligence and the Rights of Americans of the Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 12 (1997).
[14] Affiliations are noted for identification purposes only.
ON NSA SPYING: A LETTER TO CONGRESS
By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne
George W. Bush(click for larger image)
Dear Members of Congress:
We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department's December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program.[1] Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.
The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).
With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).[2]
The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.
The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.
Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President's actions here.
1.
Congress did not implicitly authorize the NSA domestic spying program in the AUMF, and in fact expressly prohibited it in FISA
The DOJ concedes (Letter at 4) that the NSA program involves "electronic surveillance," which is defined in FISA to mean the interception of the contents of telephone, wire, or e-mail communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). The NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires—e.g., that the subject is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance not authorized by statute.
The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed on September 18, 2001, which empowers the President to use "all necessary and appropriate force against" al-Qaeda. According to the DOJ, collecting "signals intelligence" on the enemy, even if it involves tapping US phones without court approval or probable cause, is a "fundamental incident of war" authorized by the AUMF. This argument fails for four reasons.
First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.
As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated as the "exclusive means by which electronic surveillance...and the interception of domestic wire, oral, and electronic communications may be conducted." 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled "Authorization during time of war," FISA dictates that "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." 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war—a more formal step than an authorization such as the AUMF —the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization.[3] Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA's terms. The DOJ letter remarkably does not even mention FISA's fifteen-day war provision, which directly refutes the President's asserted "implied" authority.
In light of the specific and comprehensive regulation of FISA, especially the fifteen-day war provision, there is no basis for finding in the AUMF's general language implicit authority for unchecked warrantless domestic wiretapping. As Justice Frankfurter stated in rejecting a similar argument by President Truman when he sought to defend the seizure of the steel mills during the Korean War on the basis of implied congressional authorization:
It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is...to disrespect the whole legislative process and the constitutional division of authority between President and Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as "the exclusive means by which electronic surveillance...may be conducted." Repeals by implication are strongly disfavored; they can be established only by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137 (2001), and "‘the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).
Third, Attorney General Alberto Gonzales has admitted that the administration did not seek to amend FISA to authorize the NSA spying program because it was advised that Congress would reject such an amendment.[4] The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no.[5]
Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked war-rantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.[6]
2.
Construing FISA to prohibit warrantless domestic wiretapping does not raise any serious constitutional question, while construing the AUMF to authorize such wiretapping would raise serious questions under the Fourth Amendment
The DOJ argues that FISA and the AUMF should be construed to permit the NSA program's domestic surveillance because there otherwise might be a "conflict between FISA and the President's Article II authority as Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above is not ambiguous, and therefore the constitutional avoidance doctrine is not even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no application in the absence of statutory ambiguity"). But were it implicated, it would work against the President, not in his favor. Construing FISA and the AUMF according to their plain meanings raises no serious constitutional questions regarding the President's duties under Article II. Construing the AUMF to permit unchecked warrantless wiretapping without probable cause, however, would raise serious questions under the Fourth Amendment.
A. FISA's Limitations are consistent with the President's Article II role
We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal—subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA was enacted, the federal law involving wiretapping specifically provided that "nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President...to obtain foreign intelligence information deemed essential to the security of the United States." 18 U.S.C. § 2511(3) (1976).
But FISA specifically repealed that provision, FISA § 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis, Congress noted, was "supported by two successive Attorneys General." Id.
To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of all constitutional postures." Id. at 640.
Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance.[7] FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within seventy-two hours. 50 U.S.C. § 1805(f).)
Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA.[8] The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture,[9] and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."[10] But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).[11]
B. Construing the AUMF to authorize warrantless domestic wiretapping would raise serious constitutional questions
The principle that ambiguous statutes should be construed to avoid serious constitutional questions works against the administration, not in its favor. Interpreting the AUMF and FISA to permit unchecked domestic wiretapping for the duration of the conflict with al-Qaeda would certainly raise serious constitutional questions. The Supreme Court has never upheld such a sweeping power to invade the privacy of Americans at home without individualized suspicion or judicial oversight.
The NSA surveillance program permits wiretapping within the United States without either of the safeguards presumptively required by the Fourth Amendment for electronic surveillance —individualized probable cause and a warrant or other order issued by a judge or magistrate. The Court has long held that wiretaps generally require a warrant and probable cause. Katz v. United States, 389 U.S. 347 (1967). And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States District Court, 407 U.S. 297 (1972). Although the Court in that case left open the question of the Fourth Amendment validity of warrantless wiretaps for foreign intelligence purposes, its precedents raise serious constitutional questions about the kind of open-ended authority the President has asserted with respect to the NSA program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth Amendment freedoms if domestic surveillance can be conducted solely in the discretion of the executive branch).
Indeed, serious Fourth Amendment questions about the validity of warrantless wiretapping led Congress to enact FISA, in order to "provide the secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this nation's commitment to privacy and individual rights." S. Rep. No. 95-604, at 15 (1978) (citing, inter alia, Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976), in which the court of appeals held that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of, nor acting in collaboration with, a foreign power).
Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls within an exception to the warrant and probable cause requirement for reasonable searches that serve "special needs" above and beyond ordinary law enforcement. But the existence of "special needs" has never been found to permit warrantless wiretapping. "Special needs" generally excuse the warrant and individualized suspicion requirements only where those requirements are impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA shows that foreign intelligence surveillance can be carried out through warrants based on individualized suspicion.
The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power." According to Attorney General Gonzales, the NSA may wiretap any person in the United States who so much as receives a communication from anyone abroad, if the administration deems either of the parties to be affiliated with al-Qaeda, a member of an organization affiliated with al-Qaeda, "working in support of al Qaeda," or "part of" an organization or group "that is supportive of al Qaeda."[12] Under this reasoning, a US citizen living here who received a phone call from another US citizen who attends a mosque that the administration believes is "supportive" of al-Qaeda could be wiretapped without a warrant. The absence of meaningful safeguards on the NSA program at a minimum raises serious questions about the validity of the program under the Fourth Amendment, and therefore supports an interpretation of the AUMF that does not undercut FISA's regulation of such conduct.
In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.[13]
We hope you find these views helpful to your consideration of the legality of the NSA domestic spying program.
Curtis Bradley, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office[14]
David Cole, Georgetown University Law Center
Walter Dellinger, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General
Ronald Dworkin, NYU Law School
Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover Institution
Philip B. Heymann, Harvard Law School, former Deputy Attorney General
Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ
Martin Lederman, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ
Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel
William S. Sessions, former Director, FBI, former Chief United States District Judge
Geoffrey Stone, Professor of Law and former Provost, University of Chicago
Kathleen Sullivan, Professor and former Dean, Stanford Law School
Laurence H. Tribe, Harvard Law School
William Van Alstyne, William & Mary Law School, former Justice Department attorney
Notes
[1] The Justice Department letter can be found at www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf.
[2] More detail about the operation of FISA can be found in Congressional Research Service, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" (January 5, 2006). This letter was drafted prior to release of the CRS Report, which corroborates the conclusions drawn here.
[3] "The Conferees intend that this [15-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.... The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720, at 34 (1978).
[4] Attorney General Gonzales stated, "We have had discussions with Congress in the past—certain members of Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (December 19, 2005), available at www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
[5] The administration had a convenient vehicle for seeking any such amendment in the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, enacted in October 2001. The Patriot Act amended FISA in several respects, including in sections 218 (allowing FISA wiretaps in criminal investigations) and 215 (popularly known as the "libraries provision"). Yet the administration did not ask Congress to amend FISA to authorize the warrantless electronic surveillance at issue here.
[6] The DOJ attempts to draw an analogy between FISA and 18 U.S.C. § 4001(a), which provides that the United States may not detain a US citizen "except pursuant to an act of Congress." The DOJ argues that just as the AUMF was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so the AUMF satisfies FISA's requirement that electronic surveillance be "authorized by statute." DOJ Letter at 3-4. The analogy is inapt. As noted above, FISA specifically limits warrantless domestic wartime surveillance to the first fifteen days of the conflict, and 18 U.S.C. § 2511(2)(f) specifies that existing law is the "exclusive means" for domestic wiretapping. Section 4001(a), by contrast, neither expressly addresses detention of the enemy during wartime nor attempts to create an exclusive mechanism for detention. Moreover, the analogy overlooks the carefully limited holding and rationale of the Hamdi plurality, which found the AUMF to be an "explicit congressional authorization for the detention of individuals in the narrow category we describe...who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network," and whom "Congress sought to target in passing the AUMF." 542 U.S. at 518. By the government's own admission, the NSA program is by no means so limited. See Gonzales/Hayden Press Briefing, supra note 4.
[7] See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's assertion of power to regulate the President's authorization of electronic surveillance for foreign intelligence purposes was "concurred in by the Attorney General"); Foreign Intelligence Electronic Surveillance: Hearings Before the Subcomm. on Legislation of the House Permanent Select Comm. on Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, to Edward P. Boland, Chairman, House Permanent Select Comm. on Intelligence (Apr. 18, 1978)) ("it seems unreasonable to conclude that Congress, in the exercise of its powers in this area, may not vest in the courts the authority to approve intelligence surveillance").
[8] Indeed, Article II imposes on the President the general obligation to enforce laws that Congress has validly enacted, including FISA: "he shall take Care that the Laws be faithfully executed..." (emphasis added). The use of the mandatory "shall" indicates that under our system of separation of powers, he is duty-bound to execute the provisions of FISA, not defy them.
[9] See Memorandum from Jay S. Bybee, Assistant Attorney General, Department of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), at 31.
[10] Memorandum from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, to the Deputy Counsel to the President, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (September 25, 2001), available at www.usdoj.gov/olc/warpowers925.htm (emphasis added).
[11] Three years ago, the FISA Court of Review suggested in dictum that Congress cannot "encroach on the President's constitutional power" to conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review, however, did not hold that FISA was unconstitutional, nor has any other court suggested that FISA's modest regulations constitute an impermissible encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President's powers were beyond congressional control. To the contrary, the Truong court indicated that FISA's restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added).
[12] See Gonzales/Hayden Press Briefing, supra note 4.
[13] During consideration of FISA, the House of Representatives noted, "The decision as to the standards governing when and how foreign intelligence electronic surveillance should be conducted is and should be a political decision...properly made by the political branches of Government together, not adopted by one branch on its own and with no regard for the other. Under our Constitution legislation is the embodiment of just such political decisions." H.R. Conf. Rep. No. 95-1283, pt. 1, at 21-22.
Attorney General Griffin Bell supported FISA in part because "no matter how well intentioned or ingenious the persons in the Executive branch who formulate these measures, the crucible of the legislative process will ensure that the procedures will be affirmed by that branch of government which is more directly responsible to the electorate." Foreign Intelligence Surveillance Act of 1978: Hearings Before the Subcommittee on Intelligence and the Rights of Americans of the Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 12 (1997).
[14] Affiliations are noted for identification purposes only.
Noam Chomsky: the Terrorist in the Mirror
Noam Chomsky: the Terrorist in the Mirror
Blogger Thoughts: Man, how much is the cost that Chomsky doesn't know about the reality of 9/11 and 7/7!!!!!
Blogger Thoughts: Man, how much is the cost that Chomsky doesn't know about the reality of 9/11 and 7/7!!!!!
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