http://photos1.blogger.com/blogger/758/1246/1600/student%20radio%20station%20attacked.jpg LIAR PARADOX: Dissecting Alberto Gonzales

LIAR PARADOX

Whatever Bush says is a lie? That MUST be a truth!

Monday, February 06, 2006

Dissecting Alberto Gonzales

I spent 6 hours of my day today watching the entire Senate Judiciary Committee hearing of Alberto Gonzales and his “justification for warrantless wiretapping of American Citizens.”

I had scores of pages to read today in my law books, but considering the fact that two of the subjects I'm studying this semester (Criminal Procedure and Administrative Law) pertained to the Gonzalez-spying-on-Americans debacle, I decided to get a real life lesson in law, and tuned in to C-SPAN.

I can only imagine how difficult it would have been for me to comprehend what went on today, if I hadn’t been relegated to the boot camp of law school for the past 18 months.

First, Gonzalez was not required to testify under Oath. Unfortunately, this means that he can LIE without the fear of being impeached by Congress..... and LIE he did. Gonzalez made sure to insert little sound-bites to be carted off and carried away and broadcast to the masses via CNN and FOX News, when he said "we are in compliance with FISA."

Second, throughout the day, Gonzalez continuously harped on two justifications for spying on Americans without a warrant, while avoiding any questions relating to whether this “program” was being used to arbitrarily spy on Americans, the number of people who have been spied on, and whether our emails, or mail coming through the postal service are being read and examined without a warrant pursuant to “The Program.”

Third, Gonzales’s arguments for warrantless wiretapping were inherently weak.

(1) Gonzales attempted to demonstrate that the “exigency of the circumstances make it impossible for us to go to FISA and get warrants before tapping into people’s telephone conversations.”

No Gonzales. First off, there is no “exigency” in the circumstances that require you to tap into people’s telephone conversations.

The Rule of Law in this country is that there is a Strong Constitutional Preference for Warrants. There are exceptions to the Warrants requirement; but they are very narrowly tailored.

Some of those exceptions to needing a warrant to search or seize include: (a) law enforcement officer personally observes the individual committing a felony; (b) using deadly force (which constitutes a 4th Amendment seizure) when the individual is shooting at or attempting to use deadly force against the officer; (c) and exigent circumstances.

What is considered by the Court to be an exigent circumstance is that there is evidence that will quickly be destroyed if not gathered by law enforcement right away; meaning, the suspect has drugs that he can flush down the toilet, or alcohol in a drunk driver’s bloodstream.

The Court has further held that it is a violation of the Constitution to pump a drug smuggler’s stomach, despite the fact that there is an “exigent circumstances” exception to the Warrants requirement, and the drugs in his stomach might not be recovered.

The only exigent circumstance that I can imagine for warrantless wiretaps would be that the U.S. has received information that the “suspect” is about to attack the United States. If these circumstances are such, we should be doing a heck of a lot more than eavesdropping into that person’s telephone conversations…. And pronto.

But what evidence would one expect to be lost requiring warrantless searches of telephone conversations for goodness sakes? It just doesn’t wash with the traditional notions of what justifies warrantless searches in American jurisprudence.

(2) Alberto: “The Supreme Court ruling in Hamdi should apply to warrantless wire-tapping of Americans, because the statute Authorizing Use of Military Force (AUMF) granted to the Executive Branch by Congress doesn’t explicitly say that we can detain the enemy captured on the battlefield, but the Supreme Court says we can do it, therefore we should be able to wiretap Americans without a warrant under the AUMF, even though the statute doesn’t explicitly say we can.”

The fact that the Chief Legal Officer of the United States, the Attorney General, would say such a thing scares the holy shit out of me.

Senator Dick Durbin definitely did his homework on this issue, because he smashed Alberto’s premise to pieces. Durbin went on to illustrate that in the Hamdi opinion, Justice O’Connor said that this ruling doesn’t constitute a “blank check” for the White House to run rampant and abuse rights of American citizens, the very rights which set us apart from the enemies of Democracy that we are fighting in Afghanistan.

Other Senators who were former prosecutors, instructed Alberto that Congress never intended to authorize the use of warrantless wiretapping of American citizens when they drafted the AUMF. In fact, these Senators who are former prosecutors proclaimed that as their experience as former prosecutors they are very familiar with what a wiretap statute looks like, and that the AUMF is NOT a wiretap statute.

One of the first things we learn in law school, is when interpreting a statute, such as the AUMF, where you’re trying to argue a certain point for your client, but the statute is not explicit as to the issue, you go to the Legislative History to determine what the Congress intended the statute to mean. In fact, in interpreting statues such as the AUMF, the Courts defer to the Legislative History to determine whether Congress intended for this issue to be included or excluded in the Statute.

Today, we learned that in drafting the AUMF, the statute upon which Alberto relies, regarding spying on us without a warrant, Congress DID NOT INTEND to allow the President or his Agencies (NSA) to wiretap us without warrants.

Alberto conceded when he made the argument that if this is so, that the Constitutional issue is “whether it is Constitutional for Congress to limit the authority of the war powers of the President, by limiting the President’s powers to conduct warrantless wiretapping of American citizens.”

I’m not kidding. He really did say this.

Third, the Executive Branch is writing laws, which it is forbidden by the Constitution from doing.

PROBABLE CAUSE TO SEARCH

Wiretapping constitutes a search and is therefore subject to the 4th Amendment. Katz

4TH Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Actually, the Executive Branch is not even writing the laws of what constitutes a “reasonable” warrantless wiretap. Instead, they are making them up as they go along!!

Or at least that’s what it sounded like coming from Gonzales!

Gonzales did at least concede today that his warrantless wiretapping of American citizens is subject to the 4th Amendment of the Constitution. And in order to wiretap, with or without a warrant, the law enforcement officer must have probable cause.

Under the 4th Amendment no search or seizure shall be conducted by any law enforcement officer except upon Probable Cause. But today, Gonzales “testified” that they don’t even need “probable cause” to conduct these warrantless wiretappings, but that they have a “standard” they follow in determining whether to conduct warrantless wiretaps of American citizens. This is an Egregious Unconstitutional slap in the face to all Americans.

Republican Senator DeWine of Ohio, picked Alberto’s brain today, trying to figure out just what the standard is that the NSA and the Justice Department are using when determining whether their warrantless wiretapping is “reasonable” as commanded by the 4th Amendment.

ALBERTO INFERRED THAT THE FOLKS AT NSA ARE DUMB-DUMBS

Gonzales explained, “heck the people at NSA that are doing the wiretapping are not lawyers and can not comprehend the legal theory of ‘probable cause’” so our “STANDARD” is much looser and has less procedure than that at FISA.

Ridiculous. Alberto is trying to tell us that regular police officers who are required by law to abstain from searching and seizing except upon probable cause, are able to comprehend what probable cause is, but top secret people at the NSA can’t wrap their brains around the concept of probable cause?

Courts have repeatedly held that even when there are warrantless searches, the law enforcement officer must have probable cause to search. What Gonzales testified to today, is that they don’t even have to have probable cause to wiretap Americans!!

Also, Gonzales argued that the procedures for warrantless wiretaps of American citizens via the NSA, are much looser than the procedural requirements for a warranted wiretap under FISA.

There are so many Constitutional issues here that I could go on and on, but I will limit my analysis to two key points that I find the most important.

  1. Congress should research the statute that created the NSA, and find out exactly what the powers are that were granted to the NSA by Congress.

I’m pretty sure that Congress would not have delegated to the NSA the authority to produce to the Attorney General any evidence that it discovered through wiretappings without probable cause, nor would it allow these “lax procedures” that Alberto spoke of today, regarding searching potentially hundreds of thousands of Americans.

Furthermore, it appeared to me that Alberto was making up the procedural requirements for getting warrantless wiretaps on the spot today. Certainly Congress has some role in what the procedural requirements are that the NSA must abide by. I’m not 100% certain, but it surely wouldn’t hurt for someone up there to check it out!!

Alberto said, certainly if the Supreme Court will allow us to detain American citizens found on the battlefields of Afghanistan they wouldn’t mind us invading the privacy of average American citizens while they’re in their homes by using this non-probable cause “standard” and lax procedural requirements!

I don’t think I have to explain just how outrageous this asinine assumption made by Alberto is.

  1. Separation of Powers: Just as it would be unconstitutional for Congress to execute and enforce the laws that it creates, it is unconstitutional for the Executive Branch to write the laws that it enforces.

Alberto can not hide behind the NSA in writing “laws” that only he enforces and only he and “top secret NSA officials” know about.

I’m stopping here, but I hope that if anyone reads this, they get something out of it. It’s off the cuff, but it’s just my thoughts.

The thing that disturbed me the most about Alberto is when he tried to justify the warrantless searches because of the “exigency of the situation.” I just don’t understand how there is any “exigency” here, where the Attorney General has numerous federal law enforcement authorities at his disposal, and that he could use to keep an eye on potentially dangerous terrorists, until he can get a warrant to wiretap through FISA.

My belief is that Alberto is hiding something. Smoking out terrorists in America is a veil that he is hiding behind. Call me a conspiracy theorist if you must, but I think that Alberto, as Bush’s agent, is leading this country one step closer toward fascism.

4 Comments:

At 10:06 PM, Blogger vper1 said...

If you really truly want to be called a conspiracy theorist, do some research on 9/11.

By the way, I'm sorry about that whole 6 hour ordeal. If it makes you feel any better,"President Washington, President Lincoln, President Wilson, President Roosevelt have all authorized electronic surveillance on a far broader scale."

 
At 8:13 AM, Blogger denny said...

damn... great post banana.

and yes, i think you are correct that they are hiding some things.

all in all, i think, if the truth is eventually learned... as it will be ... the unfolding of events will show that there are many layers of conspiracy in operation.

i have little doubt that the constitutions is dead. it is nothing but a corpse being propped up.

i've also come to believe that there will be no presidential election at the end of the bush term. they know now that most americans will do nothing. this country has entered an entirely new phase of it's existence.

 
At 3:14 PM, Blogger banana said...

Denny, what i've learned is that the Supreme Court justices tell us what the Constitution means, depending on their political persuasion.

right wing conservatives are quick to point out that they are judicial activists; they tend to say it in such a way that it's only the liberal justices that are judicial activists; in fact, it was the conservative judges prior to the Great Depression and the New Deal that were the first justices to legislate from teh bench.

the framers of the Constitution intended that the supreme Court justices be politically neutral, which is why they have indefinite terms and such.....but they have been politicized.

bush has shown by nominating alito, that he wouldn't pick a person to sit on the suprem court unless that person had deep-seated religious and right wing conservative ideals....

the result is that americans will be victims to judicial activism and corporate interests legislating from the bench.

bye bye freedom. ireland is startin to look sweeter and sweeter to me each day

 
At 10:58 AM, Anonymous Anonymous said...

This is the best blog I have ever come across on the net. You should be on TV or have your own radio show. I couldn't agree with your comments more. I thought I was the only person who watched the entire hearing or should I say "white wash". This guy wouldn't know the truth if he stepped in it.

He knows the wire tapes violate the law, but he has to be loyal and defend them until the cows come home. He last two Republican administration have had Attorney Generals that quite frankly scare me. They act as though the President is a dictator and we can't do anything, but except what he does.

If Mr. Gonzalez was as honest as he proclaims to be, he wouldn't be protecting law breakers. He will stop at nothing to go after average citizens, but oh no don't mention Republican official who break the law. He should have appointed a Special Counsel to investigate the wire tapping, but he knows the truth would come out. And that is that these guys broke the law and in my opinion, they are worst that the Nixon administration. Former Nixon White House Counsel, John Dean, has written a book about this administration being worst than the Nixon administration.

As long as idiots keep voting for Republican in big numbers, we will have corrupt government. Republican need only throw around words like, abortion, religion, national security, and these fools lose their minds and blindly vote for them without thinking first.

Please visit my blog: WWW.Plainnews.blogspot.com

 

Post a Comment

<< Home