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Former Justice Department lawyer says Bush's domestic spying program is illegal

March 9, 2006 05:08 AM / FUBAR .

By PETE YOST

A former top national security lawyer at the Justice Department questions the Bush administration's legal rationale for its warrantless eavesdropping program, newly released documents show.

David Kris, now the chief ethics and compliance officer at Time Warner Inc., said in a Jan. 19 e-mail that administration legal arguments put forth a month after the program was publicly disclosed had "a slightly after-the-fact quality or feeling to them."

Kris wrote the e-mail to an aide to Attorney General Alberto Gonzales the same day Gonzales sent a 42-page white paper to Congress. It said the president has inherent war powers under the Constitution to order eavesdropping without warrants.

Kris was an associate deputy attorney general from 2000 to 2003 dealing with national security issues, but there was no indication he was aware of the National Security Agency program or participated in internal deliberations about it during his government tenure.

The Bush administration released the e-mail traffic under the Freedom of Information Act. It had been requested by the Electronic Privacy Information Center, the American Civil Liberties Union and the National Security Archive. The administration asked for four additional months to process additional classified materials.

One of the administration's arguments for the eavesdropping program is that obtaining warrants from a secret court under the Foreign Intelligence Surveillance Act is a time-consuming process unsuited for the fast-moving war on terror.

The program authorized NSA to monitor telephone and e-mail conversations between people located in the United States and suspected terrorists overseas.

"Claims that FISA simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to" constitutional powers "in violation of the statute," Kris wrote in one document undercutting the administration's defense.

The 1978 Foreign Intelligence Surveillance Act requires court warrants for domestic eavesdropping. Gonzales said the law's constitutionality is doubtful if it is interpreted as blocking the president's constitutional powers.

"I'm making my way through the white paper now," Kris wrote the Gonzales aide, "and of course it's very professional and thorough and well written."

Kris added, "I kind of doubt it's going to bring me around on the statutory arguments ... but you never know, and in any event I can respect the analysis even if I don't fully agree."

In a Dec. 22 e-mail to the Gonzales aide, six days after The New York Times revealed the existence of the program, Kris wrote, "It looks like you guys are leading with" congressional authorization as providing Bush the legal authority for carrying out the domestic spying and then falling back on constitutional arguments.

"If I'm reading it right, that's an interesting choice," Kris wrote. "Maybe it reflects the VP's philosophy that the best defense is a good offense."

Kris's reference to Vice President Dick Cheney focuses on the still-unanswered question of precisely what role the vice president played in the program's creation and in formulating a defense once the administration became enmeshed in controversy over it.

© 2006 The Associated Press

© Copyright 2006 by Capitol Hill Blue

Comments

Sometimes the Star Wars series provides interesting parallels. The situation about the surveillance being legalized after the fact reminds me of when Darth Sidious told Nute Gunray, "I will make it legal", referring to a Trade Federation invasion of Naboo. This was in Episonde I, which played in 1999. Spooky, isn't it?

Posted by Rob Wood at March 9, 2006 06:41 AM

Gonzales doesn't know his you-know-what from a hole in the ground when it comes to the Constitution. Nowhere in the Constitution does it give the president dictatorial powers during times of [undeclared] war!

My husband has this folder that has copies of the Declaration of Independence, the Constitution, and the Monroe Doctrine. I see nothing in them that gives Bush and his gang permission to run roughshod over the Constitution!

Attorney General? Give Gonzales a more fitting title--SHYSTER General!

Posted by Alexandra at March 9, 2006 08:45 AM

As a vociforous reader,world traveler due to occupational necessity,to date,I have yet to encounter a state,country,or province known as terror,or terrorism.Could someone,ANYONE,enlighten me regarding this non existant country,and possibly define where the authority is given after meeting all of the pre-requisites required to invade a soveriegn nation without providing proof to the effect.

Posted by Capt.Broussard at March 9, 2006 10:29 AM

We should all be concerned about the government's stance that an undeclared war gives the executive branch authority to ignore any law deemed to be an obstruction to law enforcement . As I recall we now have a 'War on Drugs' and a 'War on Poverty' to go along with the 'War on Terror' . It doesn't take much imagination to envision the executive branch extending their reasoning to any problem that requires intelligent groundwork within the laws designed to protect civil liberties . It is truely sad that a large number of congressmen are abdicating their responsibilities to their constituents by rolling over to White House pressure . Or are they really fascists in sheeps' clothing . I am beginning to wonder .

Welcome to 2006 (1984) !

Posted by AndyV at March 9, 2006 10:43 AM

It is so strange that a number of attornies from the Justice Dept and even outside government have expressed serious, serious concern over this spying and wiretapping issue, yet all the lawyers in Congress refuse to initiate an investigation. Paratisan politics has taken on a whole new meaning, it omits the law and allow for convenience and ease of process without concern for Americans who have to pay for all this foolishness, be subjected to the foolishness that we have to pay for, and then be told to shut up and take our medicine as taxpayers must do. I am now experiencing Communism in a country that swore against it. I have but one thing to say to this administration and the idiot at the helm:

"George Bush tear down that wall of lies and deception, tear down your fake presentation of care for America, tear down your tyranny and terrorist conduct and go back home to Texas."

And just so you know George, now that you have allowed Texas to be overrun with illegal immigrants, home for you is in Juarez, the illegal immigrants have taken over Crawford.

Posted by Manuel at March 9, 2006 10:49 AM

And as of this morning, the Inspector General for the Dept of (in)Justice is quoted in the NYT as sayiug that in a review of FBI wire-taps, he has found over 100 violations. The violations include extending past the termination time for specific warrants, recording hundreds of telephone calls instead of simply gathering the phone records (as some warrants specified) and worse.

Sooooo, now the Congress criminals, in defense of their Grand Pubah, and instead of holding the Mighty Chimp responsible for taking a great big SQUAT on the constiutution's Bill of Rights, is preparing to pass law that, in essence, says 'Hey, it ain't no big deal. Just keep on 'doin' it." As with Marx's philosophy, 'the end justifies the means.' Oddly enough, sociopaths subscribe to that very same sort of reasoning.

Soooo, they're armed, and they're criminals..... How do YOU handle armed criminals in your neighborhood? I've always had a fairly set policy on that scenario, myself....

"We hold these truths to be self evident,......"

Posted by Dirk at March 9, 2006 11:23 AM

Why they even bother to try and explain their power grab is beyond me? It's obvious that Bu$hCo simply believes it has Imperial power to do as it pleases when it please and to whomever it please without having to ask anyone for anything. With a rubber stamp Congress and the SCOTUS now in hand it's only going to get worse these next 3 yrs. After that the Diebold wing of the rethugliken party will decide whose the most far right and Idealogically pure enough to pass it's test and be the next Emperor. Diebold et al. are now the Pretorian guards of Imperial power and anyone who thinks other is living in denial.

Posted by glenn at March 9, 2006 11:47 AM

What it all boils down to is a series of actions designed to get the American people looking elswhere while the shrub sets up a series of "precidents" in law, and the right posturing rock apes to back him up, for the complete and utter subjication of this once great nation under his (per himself) devinely inspired rule.

Even with things as late as the (illegal) invasion of other soveriegn nations without just cause, it still fits a pattern of "pre-established" incidents used for the smoke and mirror tricks that are just enough to set up the next stage of the total power grab which is the ultimate goal here... WHY is there no action to impeach both Bush AND Cheney?

Yes, I grant you that there would be a rather large destablisation of the economy on many levels...but which is worse?

Do we suffer some short term "ripples" in the pond, or do we let the very pond be irreparably corrupted?

Posted by just a citizen at March 9, 2006 02:29 PM

Just read that government is buying up all the MRE's and 7.62x39 ammo in the country- Called Larrys Gun Shop in Mobile and told them what I was reading. They confirmed that was true- they had NONE! They also told me that WALMART just stopped selling guns in Mobile, Alabama. Smells like a plan to me. Get what you need now,Folks.
Welcome to the America none of ever thought we'd see. Invest is a little gold, a little silver, and a lot of lead.

Posted by Bill Borgstrom at March 9, 2006 03:32 PM

If memory serves me right, Nazi Germany went through the same pattern of behavior; removing firearms and ammo from stores, making them unavailable to private citizens. Then Hitler demanded that those private citizens who already had firearms in their home turn them in or risk arrest by government authorities. Next came the persecution of the Jews, then confinement in the 'camps'. You know the rest.

Posted by Jenifer D. at March 9, 2006 04:50 PM

Know what, Bill, Jenifer, here in Ohio they're introducing a bill that would forbid gun-grabbing should we have a state/national emergency. They saw what went on with Katrina and didn't like it very much.

I hope it passes.

I hear Texas is pretty good when it comes to gun rights.

Posted by Alexandra at March 9, 2006 07:42 PM

I think its time to burn bushs all there known for is treason,lies,violence,corruption when are the generals sheriffs the only 9 judges going to come forward and arrest them the sheriffs have the most power most dont know go seek an find out then do something good bring all the criminals to justice before its to late.Why they want to spy on the terrists all cia ada they are the terrists,an we know it.

Posted by Michael at March 12, 2006 09:51 AM

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