[Dialogue] No President Is Above the Law

[Harry Wainwright]

Colleagues, and there is more. Peace, Harry 
  _____  




Published on Monday, December 19, 2005 by CommonDreams.org 

No President Is Above the Law 

by US Senator Robert C. Byrd
Floor Speech
December 19, 2005



Senator Byrd on Monday expressed his strong concerns about possible
violations of the Constitution in the Bush Administration's admitted
practice of spying on American citizens: 

Americans have been stunned at the recent news of the abuses of power by an
overzealous President. It has become apparent that this Administration has
engaged in a consistent and unrelenting pattern of abuse against our
Country's law-abiding citizens, and against our Constitution. 

We have been stunned to hear reports about the Pentagon gathering
information and creating databases to spy on ordinary Americans whose only
sin is choose to exercise their First Amendment right to peaceably assemble.
Those Americans who choose to question the Administration's flawed policy in
Iraq are labeled by this Administration as "domestic terrorists."

We now know that the F.B.I.'s use of National Security Letters on American
citizens has increased one hundred fold, requiring tens of thousands of
individuals to turn over personal information and records. These letters are
issued without prior judicial review, and provide no real means for an
individual to challenge a permanent gag order.

Through news reports, we have been shocked to learn of the CIA's practice of
rendition, and the so-called "black sites," secret locations in foreign
countries, where abuse and interrogation have been exported, to escape the
reach of U.S. laws protecting against human rights abuses. 

We know that Vice President Dick Cheney has asked for exemptions for the CIA
from the language contained in the McCain torture amendment banning cruel,
inhumane, and degrading treatment. Thank God his pleas have been rejected by
this Congress.

Now comes the stomach-churning revelation through an executive order, that
President Bush has circumvented both the Congress and the courts. He has
usurped the Third Branch of government - the branch charged with protecting
the civil liberties of our people - by directing the National Security
Agency to intercept and eavesdrop on the phone conversations and e-mails of
American citizens without a warrant, which is a clear violation of the
Fourth Amendment. He has stiff-armed the People's Branch of government. He
has rationalized the use of domestic, civilian surveillance with a flimsy
claim that he has such authority because we are at war. The executive order,
which has been acknowledged by the President, is an end-run around the
Foreign Intelligence Surveillance Act, which makes it unlawful for any
official to monitor the communications of an individual on American soil
without the approval of the Foreign Intelligence Surveillance Court.

What is the President thinking? Congress has provided for the very
situations which the President is blatantly exploiting. The Foreign
Intelligence Surveillance Court, housed in the Department of Justice,
reviews requests for warrants for domestic surveillance. The Court can
review these requests expeditiously and in times of great emergency. In
extreme cases, where time is of the essence and national security is at
stake, surveillance can be conducted before the warrant is even applied for.


This secret court was established so that sensitive surveillance could be
conducted, and information could be gathered without compromising the
security of the investigation. The purpose of the FISA Court is to balance
the government's role in fighting the war on terror with the Fourth
Amendment rights afforded to each and every American.

The American public is given vague and empty assurances by the President
that amount to little more than "trust me." But, we are a nation of laws and
not of men. Where is the source of that authority he claims? I defy the
Administration to show me where in the Foreign Intelligence Surveillance
Act, or the U.S. Constitution, they are allowed to steal into the lives of
innocent America citizens and spy.

When asked yesterday what the source of this authority was, Secretary of
State Condoleezza Rice had no answer. Secretary Rice seemed to insinuate
that eavesdropping on Americans was acceptable because FISA was an outdated
law, and could not address the needs of the government in combating the new
war on terror. This is a patent falsehood. The USA Patriot Act expanded FISA
significantly, equipping the government with the tools it needed to fight
terrorism. Further amendments to FISA were granted under the Intelligence
Authorization Act of 2002 and the Homeland Security Act of 2002. In fact, in
its final report, the 9/11 Commission noted that the removal of the pre-9/11
"wall" between intelligence officials and law enforcement was significant in
that it "opened up new opportunities for cooperative action."

The President claims that these powers are within his role as Commander in
Chief. Make no mistake, the powers granted to the Commander in Chief are
specifically those as head of the Armed Forces. These warrantless searches
are conducted not against a foreign power, but against unsuspecting and
unknowing American citizens. They are conducted against individuals living
on American soil, not in Iraq or Afghanistan. There is nothing within the
powers granted in the Commander in Chief clause that grants the President
the ability to conduct clandestine surveillance of American civilians. We
must not allow such groundless, foolish claims to stand.

The President claims a boundless authority through the resolution that
authorized the war on those who perpetrated the September 11th attacks. But
that resolution does not give the President unchecked power to spy on our
own people. That resolution does not give the Administration the power to
create covert prisons for secret prisoners. That resolution does not
authorize the torture of prisoners to extract information from them. That
resolution does not authorize running black-hole secret prisons in foreign
countries to get around U.S. law. That resolution does not give the
President the powers reserved only for kings and potentates.

I continue to be shocked and astounded by the breadth with which the
Administration undermines the constitutional protections afforded to the
people, and the arrogance with which it rebukes the powers held by the
Legislative and Judicial Branches. The President has cast off federal law,
enacted by Congress, often bearing his own signature, as mere formality. He
has rebuffed the rule of law, and he has trivialized and trampled upon the
prohibitions against unreasonable search and seizures guaranteed to
Americans by the United States Constitution.

We are supposed to accept these dirty little secrets. We are told that it is
irresponsible to draw attention to President Bush's gross abuse of power and
Constitutional violations. But what is truly irresponsible is to neglect to
uphold the rule of law. We listened to the President speak last night on the
potential for democracy in Iraq. He claims to want to instill in the Iraqi
people a tangible freedom and a working democracy, at the same time he
violates our own U.S. laws and checks and balances? President Bush called
the recent Iraqi election "a landmark day in the history of liberty." I dare
say in this country we may have reached our own sort of landmark. Never have
the promises and protections of Liberty seemed so illusory. Never have the
freedoms we cherish seemed so imperiled.

These renegade assaults on the Constitution and our system of laws strike at
the very core of our values, and foster a sense of mistrust and apprehension
about the reach of government.

I am reminded of Thomas Payne's famous words, "These are the times that try
men's souls."

These astounding revelations about the bending and contorting of the
Constitution to justify a grasping, irresponsible Administration under the
banner of "national security" are an outrage. Congress can no longer sit on
the sidelines. It is time to ask hard questions of the Attorney General, the
Secretary of State, the Secretary of Defense, and the Director of the CIA.
The White House should not be allowed to exempt itself from answering the
same questions simply because it might assert some kind of "executive
privilege" in order to avoid further embarrassment.

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