Re: Exemplary Legal Analysis and Thesis WAS Re: Something we can all agree on

On Sat, 31 Dec 2005 04:22:22 GMT, Fred Bloggs <nospam@xxxxxxxxxx>
wrote:

>
>
>Jim Thompson wrote:
>
>> Are you having trouble understanding that the warrant is necessary for
>> any gathered evidence to be admissible in court?
>>
>> Are you also aware that ALL the previous Presidents back at least
>> through the 2nd Roosevelt took the same liberties with wire taps to
>> defend the USA? Even weenie Carter 'fessed up ;-)
>>
>> ...Jim Thompson
>
>You might apprise yourself of the facts, the executive branch is going
>down on this one. Here is the kickoff, the ACLU petition to the AG, and
>it will only go down hill from here- the operative word is FISA:
>
>ACLU Letter to Attorney General Gonzales Requesting the Appointment of
>Outside Special Counsel for the Investigation and Prosecution of
>Violations, or Conspiracy to Violate, Criminal Laws Against Warrantless
>Wiretapping of American Persons (12/21/2005)

Ah, yes! The Anti Civil Liberties Union... have any of their actions
EVER improved your civil liberties?

We will see...

>
>
>The Honorable Alberto Gonzales
>United States Department of Justice
>Robert F. Kennedy Building
>950 Constitution Avenue, N.W.
>Washington, D.C. 20530
>
>Re: Request for the Appointment of Outside Special Counsel for the
>Investigation and Prosecution of Violations, or Conspiracy to Violate,
>Criminal Laws Against Warrantless Wiretapping of American Persons
>
>Dear Attorney General Gonzales:
>
>The American Civil Liberties Union calls on the United States Department
>of Justice to appoint an outside special counsel with the independence
>to investigate and prosecute any and all criminal acts committed by any
>member of the Executive Branch in the warrantless electronic
>surveillance of people in the United States over the past four years by
>the National Security Agency (NSA). Due to the severe constitutional
>crisis created by these actions, it is essential that such a counsel be
>appointed immediately. Such crimes are serious felonies and they need to
>be fully and independently investigated.
>
>An independent investigation by a prosecutor, not subject to dismissal
>by any political appointee or elected official, is the only way to
>ensure that all those who authorized this warrantless electronic
>surveillance, or engaged in this electronic interception or monitoring,
>are held accountable for committing these serious crimes. No person is
>above the law, not even the President of the United States of America.
>
>For the past 27 years, U.S. law has made it a crime to "intentionally"
>"engage in electronic surveillance under color of law except as
>authorized by statute." 50 U.S.C. § 1809(a)(1). There is but a single
>defense to such a charge: that "the electronic surveillance was
>authorized by and conducted pursuant to a search warrant or court order
>of a court of competent jurisdiction." 50 U.S.C. § 1809(b). Conviction
>for violating this federal law is punishable "by a fine of not more than
>$10,000 or imprisonment for not more than five years, or both." 50
>U.S.C. § 1809(c). It is clear from the president?s own statements that
>the electronic surveillance of hundreds or even thousands of people in
>this country has been conducted intentionally (and continues) without
>any warrant, in plain violation of this criminal prohibition in the
>Foreign Intelligence Surveillance Act (FISA).
>
>The Appointment of an Outside Special Counsel Is Plainly Warranted.
>
>
>As you know, the Justice Department?s own regulations require the
>appointment of an outside special counsel when a three-prong test is
>met. 28 C.F.R. part 600.1. First, a "criminal investigation of a person
>or matter [must be] warranted." Second, the "investigation or
>prosecution of that person or matter by a United States Attorney?s
>Office or litigating Division of the Department of Justice would present
>a conflict of interest for the Department." And, third, "under the
>circumstances it would be in the public interest to appoint an outside
>Special Counsel to assume responsibility for the matter." If this
>three-prong test is met, under the federal regulations that govern the
>Justice Department, a special counsel must be selected from outside the
>government who has the authority to secure necessary resources for
>investigation and prosecution and who would have full investigatory and
>prosecutorial powers. 28 C.F.R. parts 600.3-600.6.
>
>In the matter of whether members of the Executive Branch violated, or
>conspired to violate, the federal laws against warrantless wiretapping
>in national security investigations, the three-prong test for appointing
>an outside special counsel is easily met. Both the letter and spirit of
>FISA have been violated. The shocking revelations of the past few days
>make it clear that the administration cannot be entrusted with
>investigating itself, especially when the instructions to violate our
>federal criminals laws came from the president himself. President George
>W. Bush and members of his cabinet, including you, as well as the
>Principle Deputy Director for National Intelligence, have gone on the
>public offensive after reports broke that the NSA has engaged in a
>secret domestic program to listen in on conversations of American
>citizens and other people in this country without any court review or
>authority under FISA. These reports first appeared in the New York Times
>on December 16, 2005. The public interest demands that this prima facie
>case of criminal activity be referred to a special counsel who has the
>independence to investigate the violation of these criminal laws. The
>three prongs of the test for such appointment are discussed below.
>
>I. The Appointment of a Special Prosecutor Is Warranted because Both the
>Letter and Spirit of FISA Have Been Violated by these Warrantless
>Wiretaps and No Legal Defense Precludes an Independent Investigation of
>Those Responsible.
>
>A criminal investigation is warranted despite the weak rationalization
>put forward by the administration. The predicates for the criminal
>offenses at issue here have been met by any reading of the plain
>language of the applicable laws. President Bush has already admitted
>that he has been involved in the electronic surveillance of people in
>this country without court approval of those wiretaps. That this
>surveillance was intended to protect against international terrorism
>does not exempt it from FISA. This statute expressly governs all
>electronic surveillance by intelligence gathering agencies on these
>shores, whether to prevent "international terrorism" or sabotage or to
>monitor foreign spies. 50 U.S.C. §§ 1801 (c-d). Whether this
>surveillance takes the form of "detection" or "monitoring," the two
>words the president tried to distinguish in his press conference on
>December 19, 2005 or whether it involves "signals intelligence," as you
>mentioned in your press conference of the same day, makes no difference.
>FISA defines "electronic surveillance" to include any "acquisition by an
>electronic, mechanical, or other surveillance device of the contents of
>any wire or radio communications." 50 U.S.C. § 1801(f). Similarly, the
>suggestion that there is some exemption from the statutory requirements
>for international conversations involving American persons is baseless.
>FISA covers any electronic communication "sent by or intended to be
>received by" a person in the United States, as well as purely domestic
>communications. Compare 50 U.S.C. §§ 1801(f)(1 and 2) with § 1801(f)(3).
>
>Similarly, the claim that an emergency or other urgency necessitated the
>failure to follow the federal law governing electronic surveillance on
>U.S. soil is refuted by the statute itself. FISA expressly provides an
>"Emergency Authorization" process so that if "the Attorney General
>reasonably determines" that an emergency requires electronic
>surveillance to begin before an application can be made to the FISA
>court, surveillance is allowed so long as a court order is sought within
>72 hours. 50 U.S.C. § 1805(f).
>
>Likewise, there is no limitless statutory exception for warrantless
>wiretapping during wartime. FISA expressly governs wiretapping
>procedures "during time of war" and provides that "the President,
>through the Attorney General, may authorize electronic surveillance
>without a court order under this title to acquire foreign intelligence
>information for a period not to exceed fifteen days following a
>declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis added).
>Thus, even to the extent the administration is claiming there was a
>declaration of war somehow allowing warrantless wiretapping based on the
>resolution on the Authorization for Use of Military Force in
>Afghanistan, 115 Stat. 224 (2001), federal law expressly permits such
>warrantless surveillance to continue only for 15 days after a
>declaration of war is passed by Congress.
>
>In fact, Congress declined to declare war and trigger an array of
>executive authorities attendant to such a declaration under Article I §
>8 of the Constitution. And, even if the resolution were misconstrued as
>a declaration of war, however, it did not provide any authority to
>violate federal law on wiretapping. The interplay between the express
>provisions in FISA governing wiretapping in the U.S. and the use of
>force declaration naturally leads to the conclusion that, at most, 15
>days of wiretapping without a court order was and is still the law, even
>in time of war. Our federal courts are functioning and the FISA court
>has been fully operational for the past four years. The use of force
>resolution provided no extension of the 15-day exception to oversight by
>the secret court that was created to review all national security
>wiretaps in the U.S. relating to international terrorism or sabotage.
>See 50 U.S.C. §§ 1801 (c and d). Moreover, the limited exception to
>judicial approval for the 15 days immediately following the declaration
>of war does not provide for any extensions to this one-time exception.
>Compare 50 U.S.C. § 1811 with, e.g., 50 U.S.C. § 50 U.S.C § 105(e)(2)
>(providing extensions for court ordered wiretaps, available only upon
>approval by the FISA court). Any extension of Section 1811 of FISA would
>render the 15-day exception meaningless. Nor was any exception to the
>criminal liability in Section 1809 of FISA made part of the use of force
>resolution. It is black letter law that the president may not interpret
>our criminal laws to avoid his own criminal liability.
>
>And, although any justifications proffered by the administration go to
>any defense rather than to whether the predicates for investigation and
>indictment exist, it is clear that the United States Supreme Court has
>not endorsed any "plenary authority" of the president under Article II
>of the Constitution to wiretap in violation of the Fourth Amendment of
>the Constitution or federal laws enforcing the rights protected therein.
>See Hamdi v. Rumsfeld, 524 U.S. 507, 517-18 (2004). The court?s decision
>in the Hamdi case was very carefully limited to the detention of enemies
>captured on the battlefield. The warrantless wiretapping of people in
>the United States is simply not equivalent to such battlefield
>detentions. Despite the urging of the Justice Department to have the
>court declare that the president has unlimited or unimpaired
>commander-in-chief authority to take any action he deems necessary, the
>court declined to reach such a result. To apply the holding in Hamdi to
>authorize the actions at issue in the warrantless wiretapping that has
>been admitted by the administration, one would have to accept the
>assertion that the battlefield is everywhere and so the use of force
>resolution gave President Bush the power to re-write any law, criminal
>or civil, without any limitation. That is clearly not what Congress
>intended; nor is it what the Supreme Court endorsed.
>
>In Hamdi, the court narrowly focused its decision on the conclusion that
>the capture and detention of lawful combatants on the battlefield is
>universally considered an important incident of war. Id. at 518. Even
>with the court?s approval of the authority to detain combatants, whether
>citizen or foreign, the court emphasized the critical importance of
>judicial review of the actions of the president that affect the rights
>of Americans. Id. at 536-37 (noting that "even the war power does not
>remove constitutional limitations safeguarding essential liberties").
>The Hamdi decision expressly rejected the administration?s argument that
>respect for the commander-in-chief?s powers necessitates a heavily
>circumscribed role for the courts during wartime, and the court
>considered such an approach to be an unacceptable effort to "condense
>power into a single branch of government," contrary to the checks and
>balances on power required by the Constitution. Id. at 535-36. As the
>court declared, it is "clear that a state of war is not a blank check
>for the President when it comes to the rights of the Nation?s citizens."
>
>Yet, in the matter at hand, without the mandate of FISA there is no way
>to safeguard Fourth Amendment rights or have any independent judicial
>check on those civil liberties when there is no judicial review of the
>wiretapping of people in America. The electronic surveillance at issue
>is conducted in secret and the individuals whose rights may be violated
>may never know that their conversations were captured by intelligence
>agents. Without the judicial oversight that is legally required by FISA
>there is no way to know whether any of the hundreds or thousands of
>individuals in this country whose international communications are being
>surveilled by the NSA are enemies or agents of a foreign power. Without
>the judicial oversight required by law, there is no independent check on
>whether all the citizens or residents of this country subjected to these
>wiretaps are involved in criminal wrongdoing or connected to the
>activities of al Qaeda.
>
>The entire point of FISA?s requirement of judicial review is to ensure
>that only suspected foreign agents are subject to government seizure of
>their every electronic communication. The process due under the
>Constitution to vindicate the fundamental Fourth Amendment right to
>privacy surrounding private conversations-whether by telephone, e-mail,
>or facsimile, whether international or domestic, and whether with loved
>ones or coworkers-is that the government must show a court that there is
>reason to believe the person in this country is an agent of a foreign
>power, before round-the-clock surveillance or recording of the intimate
>or mundane conversations of free people is permitted. And, nothing
>Congress has voted for since September 11, 2001 constitutes permission
>for the president to strip away these rights, secretly and unilaterally.
>
>Indeed, the facts immediately following the passage of the Afghanistan
>resolution show that there was no congressional intent that the use of
>force resolution be construed to set aside the legal requirements of
>FISA. Within 40 days of the vote on the use of force resolution in the
>fall of 2001, Congress passed extensive changes to FISA at the request
>of President Bush, but none of these amendments struck the requirement
>that the president get judicial approval to conduct electronic
>surveillance of people in the U.S. The USA PATRIOT Act, which was
>drafted primarily by the Bush Administration and passed by Congress,
>contains 25 separate enhancements of electronic surveillance procedures,
>making numerous revisions to FISA. Public Law No. 107-56, 115 Stat. 272
>(2001) (Title II). But not one of these amendments altered the
>fundamental requirement that there be judicial review of all foreign
>intelligence wiretaps in the U.S. Not one of them extended the 15-day
>exception immediately following declarations of war. Not one of them
>created a loophole to the short-term emergency exception to begin FISA
>wiretaps and then seek court approval. Not one of them altered the
>criminalization of any intelligence wiretaps conducted without a court
>order. Not one of them modified the mandate of federal law that the
>procedures for Title III criminal wiretaps and Title 50 FISA wiretaps
>"shall be the exclusive means by which electronic surveillance . . . and
>the interception of domestic wire, oral, and electronic communications
>may be conducted" in the U.S. 18 U.S.C. § 2511(2)(f) (emphasis added).
>This makes the FISA laws distinct from the statute at issue in the Hamdi
>case.
>
>Given both the lack of express amendment or revision to FISA in the use
>of force resolution and the fact that Congress worked with the White
>House to extensively revise and reinforce FISA as the exclusive means by
>which electronic surveillance in intelligence investigations in the U.S.
>was to be conducted to fight terrorism, there can be no credible
>argument that the resolution allows the president to disregard the legal
>obligations of FISA. FISA was written specifically to require
>independent federal court review of all electronic surveillance requests
>in investigations of international terrorism or international terrorist
>plots in the U.S. 50 U.S.C. § 1801 et seq. The USA PATRIOT Act, which
>was even titled "Uniting and Strengthening America by Providing
>Appropriate Tools Required to Intercept and Obstruct Terrorism,"
>modified the FISA powers extensively but made no changes that would
>authorize the illegal actions taken by the president or excuse or permit
>the warrantless wiretapping of Americans in this country.
>
>Thus, the Afghanistan resolution did not repeal the specific statutory
>requirement of FISA that the president or his agents must get a court
>order to wiretap the communications of people in the United States in
>national security investigations governed by Title 50 of the United
>States Code. Whatever the expansive interpretation argued by
>administration lawyers, such claims cannot pretermit the appointment of
>a special prosecutor to investigate these clear violations of federal
>law. Such matters may be argued in defense during any criminal trials
>that result from any indictments brought by a federal grand jury.
>
>II. It Is Beyond Dispute that a Criminal Investigation by the Justice
>Department into Conduct Approved by the President and Leaders of the
>Justice Department Presents a Clear Conflict of Interest for the Justice
>Department.
>
>Given your own defense of the president?s actions, your imputed
>involvement in the continuation of these warrantless wiretaps over the
>past 11 months as attorney general, as well as your former
>responsibilities as White House counsel at the time this program of
>warrantless electronic surveillance was begun, it is clear that the
>Justice Department under your leadership would have an unavoidable
>conflict of interest in fully investigating and prosecuting the
>violations of 50 U.S.C § 1809. Regrettably, your own statements indicate
>that you, yourself, are implicated in violating these federal laws,
>regardless of any defense you may assert.
>
>You have also publicly stated that you discussed trying to change the
>FISA laws that require court approval of electronic surveillance in
>intelligence cases but you were told by political allies in Congress
>that a change in the law to permit the actions the administration was
>taking "was not something we could likely get, certainly not without
>jeopardizing the existence of the program, and therefore, killing the
>program." Attorney General Press Conference, December 19, 2005 (emphasis
>added). As the nation?s top law enforcement officer, rather than stop a
>program operating in violation of the law or seek to amend the law to
>permit what is otherwise illegal activity, it appears you and others
>chose to cover it up. And, although it has been repeatedly suggested
>that Congress was kept apprised and somehow ratified this criminal
>behavior, it appears that those few members who were informed of the
>general outlines of the program were ordered to keep silent. And some of
>those few who the administration is suggesting somehow ratified the
>repeal of the requirements of FISA have now noted that they were not
>informed of the true nature of this secret program and that even the
>inadequate information they were provided caused them to object. The
>president cannot amend the law with a briefing.
>
>Under such circumstances, it is obviously impossible for you to have any
>genuine independence in this matter. Moreover, any appearance of
>impartiality you might have had to investigate this matter has been
>shattered by your recent media appearances defending this unlawful
>conduct. Your claim, and that of the president, that this warrantless
>wiretapping of people in this country was authorized by the use of force
>resolution following September 11, 2001 is not grounded in any provision
>in this resolution suspending either the requirements of FISA or the
>reach of U.S. criminal law.
>
>For a Justice Department inquiry to be credible, an outside special
>counsel with no ties to the Justice Department and no prior relation to
>the issue is essential. In the absence of an outside special counsel,
>the nation will have no assurance of accountability or responsibility
>for any criminal wrongdoing for these actions in violation of their rights.
>
>III. With a Constitutional Crisis Created by the Administration?s
>Refusal to Follow the Law, the Public Interest Demands the Appointment
>of an Outside Special Counsel.
>
>This constitutional crisis warrants the appointment of a special counsel
>to investigate these serious matters. This administration - like that of
>President Nixon - has apparently adopted, in secret, a legal view of the
>Executive Branch?s power that is unbounded. The president's powers to
>safeguard our nation are subject to the laws enacted by the people's
>representatives or those laws are nothing more than an illusion.
>
>Neither war nor emergency provides an excuse for violating those laws,
>let alone violating them intentionally and repeatedly. A secret program
>to spy on the telephone conversations or e-mail of as many as 500 people
>a day, including American citizens and residents in the U.S., without
>any court order, clearly violates the plain language of the laws passed
>by Congress. This remains true even with the broadened surveillance
>powers Congress approved at your request in 2001 to amend FISA with the
>Patriot Act.
>
>This is not a matter that can be left solely to the legislative branch
>to resolve. We believe crimes may have been committed. While Congress
>has a responsibility to hold hearings to expose the scope of this
>unlawful activity, congressional hearings alone are insufficient to
>address the criminal conduct at issue in violating the federal felony
>wiretapping law.
>
>As a general matter, the violation of criminal laws is to be
>investigated by prosecutors and tried by independent federal courts.
>Regardless of whether Congress chooses to vigorously exercise its
>oversight powers and try to repair this breach of trust with the
>American people, the matters at issue are also serious criminal matters.
>
>No one with the authority to prosecute violations of federal criminal
>laws has investigated, or been ready to prosecute if warranted, the full
>scope of potential criminal liability of all those involved in this
>warrantless wiretapping on American soil. There is an obvious public
>interest in investigating and prosecuting violations of the federal law
>against wiretapping without judicial oversight. Given the concession
>that these decisions to violate the law were made at the highest levels
>of the Executive Branch, an outside special counsel is clearly in the
>public interest. In fact, the public interest is only heightened by the
>fact that the president is determined to continue this warrantless
>wiretapping of people in the U.S., regardless of its lawlessness and the
>public outcry against it.
>
>Several Members of Congress as well as editorial pages across the
>country have expressed shock at these warrantless wiretaps. For example,
>the Washington Post noted:
>
>The rules here are not ambiguous. . . . The Foreign Intelligence
>Surveillance Act (FISA) requires that national security wiretaps be
>authorized by the secretive FISA court. "A person is guilty of an
>offense," the law reads, "if he intentionally . . . engages in
>electronic surveillance under color of law except as authorized by
>statute" -- which appears, at least on its face, to be precisely what
>the president has authorized.
>
>Washington Post (December 18, 2001). The entire point of FISA, written
>in the wake of revelations of President Nixon?s claim of national
>security justifications for spying on his enemies, is to channel all
>electronic surveillance in the U.S. in national security investigations
>through the FISA court. The Justice Department and the White House have
>failed to rationalize the refusal to follow FISA?s legal requirements
>and are obviously not independent. But federal law is clear: to monitor
>the communications of any person in the U.S., federal agents must get
>court approval, subject only to the exceptions in the statute, none of
>which authorizes the misconduct described or admitted. The willful and
>repeated evasion of our federal laws must be fully and independently
>investigated.
>
>America must be governed by laws and not men. The law trumps good
>intent. Nobody is above the law. That is the essence of the rule of law.
>The president simply cannot pick and choose which laws he will or will
>not follow. Such an ideology is leading our nation into the wilderness
>of lawlessness yet again. Even in times of war the president is not a
>law unto himself-FISA?s rules and criminal penalties have not been
>repealed, the Fourth Amendment has not been suspended, and the
>Constitution with its bedrock principle of checks and balances was not
>destroyed on September 11, 2001, and we must not allow it be rendered
>moot. Nothing less than the rule of law is at stake.
>
>We thank you for your attention to this critically important matter. We
>trust you will make a proper referral of this request to a person at the
>Justice Department not involved in the breaches of trust at issue in
>this call for the appointment of an outside special counsel to conduct a
>thorough and independent criminal investigation. We look forward to the
>Department?s response. Please contact us to arrange a meeting to discuss
>this request.
>
>Very truly yours,
>
>Anthony D. Romero
>Executive Director
>ACLU
>
>Caroline Fredrickson
>Director
>ACLU Washington Legislative Office
>
>Lisa Graves
>Senior Counsel for Legislative Strategy
>ACLU Washington Legislative Office
>


...Jim Thompson
--
| James E.Thompson, P.E. | mens |
| Analog Innovations, Inc. | et |
| Analog/Mixed-Signal ASIC's and Discrete Systems | manus |
| Phoenix, Arizona Voice:(480)460-2350 | |
| E-mail Address at Website Fax:(480)460-2142 | Brass Rat |
| http://www.analog-innovations.com | 1962 |

"Winners never quit, quitters never win", Jack Bradley Budnik ~1956
.

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