“This has been the saddest day of my life,” said Alaska Sen. Ted Stevens (R), 82, “as he watched victory slip away again in his 25-year crusade for drilling in the refuge.”
President Bush and other administration officials have argued that their secret wiretapping of American citizens was justified by the Authorization for the Use of Military Force passed by Congress in the days after 9/11. Today, one of the most respected conservative appellate judges in the nation – Micheal Luttig – delivered fresh evidence for why the administration’s use of the 9/11 Authorization cannot be trusted.
The issue before Luttig was whether to grant the Bush Administration’s request to dismiss an earlier opinion which gave the government broad authority to detain “enemy combatants” like terrorism suspect Jose Padilla.
Why would the administration want to curtail a decision that gave the President such broad authority? That’s the question that troubled the Court because the administration refused to provide an answer. Luttig’s opinion offers a clear insight into what the Administration thinks of checks and balances:
[The Bush Administration] provided no explanation as to what comprised the asserted exigency.
We are not in a position to ascertain “¦ because the government has not explained its decisions either publicly or to the court.
The government has not offered explanation.
Attorney General Alberto Gonzales once hailed the Court’s prior Padilla ruling as providing the necessary presidential authority to protect “American citizens from the very kind of savage attack that took place [on 9/11].” Without a sufficient explanation for why the administration would now want to vacate that opinion, the Court was left to draw the conclusion that the administration lacks credibility on issues of executive power:
[The Bush Administration's] actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake [but also] they have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time”¦can, in the end, yield to expediency with little or no cost to its conduct of the war against terror “¦ And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts.
The entire controversy is about the Bush administration conducting warrantless surveillance of Americans. So Drudge doesn’t have a story left.
Of course, that hasn’t stopped him from continuing to push it.
Yesterday we wrote:
Neither Gorelick or the Clinton administration ever argued that president’s inherent “authority” allowed him to ignore FISA [Foreign Intelligence Surveillance Act].
This morning, The National Review’s Byron York responded:
The Center’s position appears contradicted not only by Gorelick’s testimony but by a statement she made to Legal Times in November 1994, several months after her testimony, in which she said, “Our seeking legislation in no way should suggest that we do not believe we have inherent authority.”
Actually, our argument is perfectly consistent with Gorelick’s statements. Both her testimony and in the Legal Times quote, were about physical searches. In 1994, the FISA did not cover physical searches. She was explaining what the President’s authority was in the absence of any congressional statute. She wasn’t arguing that the President had the authority to ignore FISA.
In 1995, with President Clinton’s signature, FISA was amended to include physical searches. That law prohibited warrantless domestic physical searches. No one in the Clinton administration, including Gorelick, ever argued that the administration could ignore the law, before or after it was amended.
A vote to end debate on the 2006 Defense Appropriations Bill (where Alaska Sen. Ted Stevens stuck the drilling amendment) just failed, 56-44. Hotline’s On Call: “It now returns to conference, where members will likely strip the ANWR plank from the text and resubmit it for a vote.”
Bill O’Reilly signals retreat in the “War on Christmas”?
Media Matters notes that O’Reilly has reversed his position on “Happy Holidays”: Only few weeks ago, the phrase was offensive to “millions of Christians” and “insulting to Christian America”; on Monday night, O’Reilly said, “Happy Holidays is fine.”
Now O’Reilly has actually issued a retraction. On last night’s broadcast, O’Reilly admitted he was wrong when claimed a Texas school district “told students they couldn’t wear red and green because they were Christmas colors,” which he described as “fascism.” (As Media Matters noted, O’Reilly manufactured the point out of whole cloth.) From last night’s Factor:
Now I made a mistake a few days ago when I said clothing was included in that party dictum. Clothing was not included. It was colors of plates and cupcakes and things like that.
Watch and enjoy this rarest of videos, Bill O’Reilly admitting a mistake:
Full story from the Dallas Morning News.
A column in this morning’s Chicago Tribune by John Schmidt argues that Bush’s secret domestic surveillance program was legal. (Byron York posted a portion of the piece on the National Review website under the title “READ THIS IMPORTANT ARTICLE“) It features this selectively edited excerpt from a 2002 decision by the FISA appeals court:
“All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence…We take for granted that the president does have that authority.”
Actually, the quote doesn’t begin with the word “all”; it begins “The Truong court, as did all the other courts…” The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, “Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute.
This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, “where the president is acting contrary to congressional authority…the president’s authority is at its lowest ebb.”
The article also conveniently omits the two sentences after the excerpt:
It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse…
All the court is saying here is that whether FISA imposes limits on the President’s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, “[T]he question before us is the reverse.”
Four days before Christmas, the U.S. Senate votes 51-50 in favor of a brutal budget package that cuts funding for health care, student loans, child support enforcement, foster care funding, and other programs by $40 billion over the next five years. Details here.
Speaking to press on Air Force Two yesterday, Vice President Cheney lashed out at critics of the administration’s warrantless domestic spying program. His message was simple: people who don’t support our policies don’t believe terrorism is a threat.
There’s a temptation for people to sit around and say, well, gee, that [9/11] was just a one-off affair, they didn’t really mean it.
Now we’ve gotten to the point where four years beyond the attack, people are saying, well, gee, maybe there’s not a threat here after all.
Either we’re serious about fighting the war on terror or we’re not. Either we believe that there are individuals out there doing everything they can to try to launch more attacks, to try to get ever deadlier weapons to use against, or we don’t.
Here’s the problem. No one in the Bush administration can explain how this program helped America fight terrorists. Under existing law, surveillance can begin immediately. (The government just has to obtain a warrant from the FISA court with 72 hours). The secret program didn’t save time — it just avoided checks on abuse. Cheney’s cartoonish characterization of his critics arguments doesn’t change that.
Our laws gave the Bush administration the power to instantly start surveillance on people suspected of communicating with terrorists. If something in the law prevents us from addressing the threat we should change the law. But everyone, including the President and the Vice President, should follow the law.