Michael Gaynor
Feingold: Fool's gold, censure, and the MAGIC lesson
By Michael Gaynor
Beware any presidential aspirant who puts his or her overweening personal ambition first. Like Senator Russ Feingold, Democrat of Wisconsin. In his zeal to win the Democrats' 2008 presidential nomination, he just moved on from decrying, undermining and delaying the extension of The Patriot Act (at last extended, with limited damage) to sanctimoniously calling for the censure of President Bush for protecting America from terrorist attacks by authorizing warrantless secret surveillance of international telephone calls reasonably believed to be Al Qaeda-related and keeping his terrorist surveillance program secret. Some people will do just about anything to win Cindy Sheehan's endorsement.
On March 12, 2006, Senator Feingold announced that he will introduce a resolution in the United States Senate on March 13 to censure the President of the United States for "authorizing the illegal wiretapping program and then misleading the country about the existence and legality of the program," in the words of the press release posted at Senator Feingold's website. Senator Feingold called his censure resolution "an appropriate and responsible step for Congress to take in response to the President's undermining of the separation of powers and ignoring the rule of law."
The United States Senate should issue a censure resolution. It should censure Senator Feingold, not President Bush. He is far more deserving of censure than amother Wisconsin Senator, Joseph McCarthy, who served his country with distinction during World War II, appreciated the insidious nature of the Communist menace, and was censured by the Senate for confronting it too zealously. Senator Feingold has shown himself to be much more reckless than Senator McCarthy ever was, without any justification.
The MAGIC Lesson
Will Senator Feingold also ask the United States Senate to censure the late President Roosevelt for abusing Americans of Japanese ancestry or keeping it a secret that the Japanese secret code had been broken? Doing that would not be likely to win him votes, so I doubt he will.
For those who want to appreciate the pressing problems confronting a president conducting a war against a deadly enemy and the critical need for secrecy, read Magic: The Untold Story of U.S. Intelligence and the Evacuation of Japanese Residents from the West Coast during WW II, by the late David D. Lowman.
In late 1940 members of the United States Army Signal Intelligence Service broke Japan's highest level diplomatic code and then constructed a machine that was an analog of the one used by the Japanese. This magnificent accomplishment allowed the United States to read Japan's diplomatic messages from then until after the end of the war. Intelligence thus gained was cover named MAGIC. For strategic reasons, the fact that the code had been broken was kept secret, even though that meant that Americans died so that the secret could be kept. War is hell. Losing a war is worse.
The decoded messages of 1941 included a number detailing espionage planning and operations involving Japanese-Americans along the West Coast. Japan attacked Pearl Harbor on December 7, 1941. In February 1942, President Roosevelt authorized the evacuation of all persons of Japanese ancestry and their relocation to internment camps as a wartime measure. In 1983 a congressional commission, despite available declassified intelligence and without the benefit of MAGIC revelations, concluded that President Roosevelt s action was the result of racism, war hysteria and lack of political will. A politically correct conclusion that Congress could make during peacetime, because the United States had prevailed in World War II.
Mr. Lowman, using MAGIC messages and declassified Army, Navy and FBI reports, shows that reality and political correctness are distinct. As a former high level officer in the National Security Agency and a witness before congressional committees dealing with the evacuation he was uniquely qualified to tell this story. Those who could never quite believe the base motives attributed to America and her wartime leaders will find Mr. Lowman's story compelling.
The Publisher's Critical Point: "A reader need not agree with President Roosevelt's decision to evacuate to realize that a serious security problem existed on the West Coast. Imperial Japan, notorious at the time for using overseas Japanese to secure its intelligence, by May 1941 had resident Japanese watching the Los Angeles Harbor and the Mexican Border; had Japanese Americans working in aircraft plants to gather intelligence and had made contacts with Japanese Americans in the U.S. Army for the same purpose. And this was just a small part of it five months before Pearl Harbor."
Publishers Weekly's book description: "This work...makes an important contribution to the history of the WWII imprisonment of Japanese-Americans.... Lowman, who died in 1999, was a former National Security Agency officer involved in declassifying intelligence records, including sources from MAGIC, the decrypted Japanese diplomatic traffic. That material, much of it from late 1941 and early 1942..., describes systematic recruitment of Japanese residents, citizens and noncitizens into networks designed to provide information to Japan both before and after the outbreak of war. Without ascribing Executive Order 9066 for Japanese-American internment entirely to this information, Lowman makes a solid case that the intelligence community's faith in its credibility contributed significantly to the government's decision...."
Democrat demagogue Feingold's press release:
"'The President must be held accountable for authorizing a program that clearly violates the law and then misleading the country about its existence and its legality,' Feingold said. 'The President's actions, as well as his misleading statements to both Congress and the public about the program, demand a serious response. If Congress does not censure the President, we will be tacitly condoning his actions, and undermining both the separation of powers and the rule of law.'
"The President's illegal wiretapping program is in direct violation of the Foreign Intelligence Surveillance Act (FISA). The FISA law makes it a crime to wiretap Americans in the United States without a warrant or a court order. The Bush Administration has obtained thousands of FISA warrants since September 11th and has almost never been rejected by the FISA court. FISA even allows wiretaps to be executed immediately in an emergency as long as the government obtains a warrant within 72 hours.
"'This issue is not about whether the government should be wiretapping terrorists — of course it should, and it can under current law' Feingold said. 'But this President and this Administration decided to break the law and they have yet to give a convincing explanation of why their actions were necessary, appropriate, or legal. Passing more laws will not change the fact that the President broke the ones already in place and for that, Congress must hold him accountable.'"
Bulletin to Senator Feingold: America is at war.
What Americans call the War on Terror is a war that was both initiated and declared by the terrorists. Unfortunately, it was only after September 11, 2001 that America fully focused on combating terrorism. The Clinton administration had treated terrorism as a criminal problem instead of a war. The September 11 attacks conclusively demonstrated that just would not do. So President Bush liberated Afghanistan, after the Taliban refused to stop giving Al Qaeda sanctuary, and Iraq too, after it was obvious that (1) Saddam Hussein would not fully comply with United Nations resolutions and sanctions were failing and (2) generally believed by the intelligence services of the world that Saddam had weapons of mass destruction and was developing more. Of course, President Bush took into account Saddam's history of having tried to acquire nuclear weapons and using weapons of mass destruction against both Iraqis and Iranians. (In a nuclear age, the "fool-me-once-shame-on-you, fool-me-twice-shame on you" attitude is not a good option.)
As The Patriot Act was about to be extended last December, The New York Times deliberately disclosed the very helpful terrorist surveillance program that President Bush's domestic enemies like Senator Feingold maliciously mischaracterized as an illegal domestic surveillance program.
As a result of misinformation from the likes of Senator Feingold, the scope of the war power of the President of the United States (which is the same regardless of the President's party affiliation or even lack of party affiliation) has been grievously misunderstood.
President Bush did NOT exceed his authority in authorizing warrantless surveilliance of some international communications for national security purposes.
The majority opinion and Justice Felix Frankfurter's concurrence in Korematsu v. United States, 323 U.S. 214 (1944), in which internment of Japanese-Americans was recognized as permissible under the war power, emphasize the need to prevail in war and the Constitution's distinction between wartime and peacetime.
The majority opinion concluded:
"It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified."
Justice Frankfurter added these wise words:
"The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.' Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382 and see Home Bldg. & L. Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 88 A.L.R. 1481. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. 'The war power of the United States, like its other powers ... is subject to applicable constitutional limitations', Hamilton v. Kentucky Distilleries, Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108. To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125; Id., 155 U.S. 3, 15 S.Ct. 19, and Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours."
For full discussion of the subject, see America's Constitution, presidential power, and common sense.
The "Fact Sheet" from Senator Feingold on His Censure Resolution:
"Senator Feingold's resolution of censure condemns the President for breaking the law by authorizing an illegal wiretapping program, and for misleading Congress and the American people about the existence and legality of that program.
"The President Broke the Law by Wiretapping Outside of FISA
"It Is Illegal to Wiretap Without the Requisite Warrant or Court Order: The law is clear that the criminal wiretap statute and Foreign Intelligence Surveillance Act (FISA) 'shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.'
"FISA Has an Emergency Exception: The Administration has indicated that it ignored FISA because the application process takes too long. In fact, in an emergency where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits him to immediately authorize the surveillance as long as the government goes to the court within 72 hours. Prior to 2001, the emergency wiretap period was only 24 hours. The Administration requested and received the increase to 72 hours in intelligence authorization legislation that passed in late 2001.
"FISA Provides for Wartime Situations: FISA also permits the Attorney General to authorize warrantless electronic surveillance in the United States during the 15 days following a declaration of war, to allow time to consider any amendments to FISA necessitated by a wartime emergency.
"The Administration Has Used FISA Thousands of Times Since 9/11: Administration officials have criticized FISA, but they have obtained thousands of warrants approved by the FISA court since 9/11, and have almost never had a warrant request rejected by that court.
"The President Made Misleading Arguments Defending his Wiretapping Program
"Military Force Resolution Did Not Authorize Wiretapping: The President has argued that Congress gave him authority to wiretap Americans on U.S. soil without a warrant when it passed the Authorization for Use of Military Force after September 11, 2001. There is no language in the resolution and no evidence to suggest that it was intended to give the President authority to order these warrantless wiretaps. Warrantless domestic surveillance is not an 'incident of war' akin to detaining an enemy soldier on the battlefield as the Administration has argued.
"In fact, Congress passed the Patriot Act just six weeks after September 11 to expand the government's powers to conduct surveillance of suspected terrorists and spies. Yet the Administration did not ask for, nor did the Patriot Act include, any change to FISA's requirement of judicial approval for wiretaps of Americans in the United States.
"Prohibition on Wiretapping Limits Executive Power: The President's assertion of inherent executive power is also wrong. The President has extensive authority when it comes to national security and foreign affairs, but given the clear prohibition in FISA, that authority does not include the power to wiretap American citizens on American soil without a warrant.
"Executive Branch Review of Wiretapping Is Not Enough: The President has argued that periodic executive branch review provides an adequate check on the program. But Congress when it passed FISA explicitly rejected the idea that the executive branch should be fully entrusted to conduct national security wiretaps on its own — a power that the executive had abused in the past. In addition, the Administration has said that NSA employees decide whose communications to tap. Executive branch employees are no substitute for FISA Court judges.
"Congress Did Not Approve This Program: The extremely limited briefings of the President's warrantless surveillance programs to a handful of Congressional leaders did not constitute Congressional oversight, much less approval. In fact, the failure of the President to keep the Congressional Intelligence Committees 'fully and currently informed of all intelligence activities' was a violation of the National Security Act.
"The President Made Misleading Public Statements about Administration Wiretapping
"'Finally, we need to renew the critical provisions of the Patriot Act that protect our civil liberties. The Patriot Act was written with clear safeguards to ensure the law is applied fairly. The judicial branch has a strong oversight role. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S.'
— President George Bush, June 9, 2005, in Columbus, Ohio
"'A couple of things that are very important for you to understand about the Patriot Act. First of all, any action that takes place by law enforcement requires a court order. In other words, the government can't move on wiretaps or roving wiretaps without getting a court order. Now, we've used things like roving wiretaps on drug dealers before. Roving wiretaps mean you change your cell phone. And yet, we weren't able to use roving wiretaps on terrorists. And so what the Patriot Act said is let's give our law enforcement the tools necessary, without abridging the Constitution of the United States, the tools necessary to defend America.'
— President George Bush, July 14, 2004, in Fond du Lac, Wisconsin
"'Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.'
— President George Bush, April 20, 2004, in Buffalo, New York"
Does Senator Feingold remember that Osama bin Laden stopped using his cell phone after The Washington Post reported that American intelligence was monitoring his cell phone calls? Or care? Disinformation is a necessary wartime tactic!
Gutheinz on Feingold
Joseph R. Gutheinz, Jr. is a former military intelligence officer, a retired NASA Office of Inspector General senior special agent, a criminal defense attorney and a college instructor. He was so disgusted that he wrote an acute and astute analysis title "Is Senator Russ Feingold a Traitor?" (http://www.theconservativevoice.com/article/13024.html), on the assumption that a traitor is a person who tries to undermine the Commander-in-Chief during wartime.
Senator Feingold's sophistry did not deceive Mr. Gutheinz: He saw both President Bush and Senator Feingold clearly and lauded the former and lambasted the latter as wartime leaders.
"In time of war we see the best and the worse in our leaders. President George W. Bush has shown a steel backbone and the ability to make hard decisions that benefit each of us and which have saved American lives both here and abroad. I have two sons now in the Army and I thank God that their Commander and Chief is President Bush.
"Unfortunately, in time of war we see the small 'men' coveting lofty positions they neither deserve or are qualified to have. Their words and deeds are often indistinguishable from cow dung which must be scraped off your boots after crossing over a cow pasture on a Texas ranch. As President and as a rancher President Bush has experience carving off the dung that cows produce as well as the dung their dim witted cousins produce in the Democratic Party, that is with every word they say and scrap of paper they generate."
Senator Feingold is not really a friend of Osama bin Laden, but it will not stop him from giving aid and comfort to him, and outraging patriots like Mr. Gutheinz, who summarized the situation this way:
"On Monday March 13, 2006, members of al Qaeda all over the world will be cheering for Senator Russ Feingold as he introduces a five page resolution in the Senate, attempting to censure President Bush for trying to intercept al Qaeda communications with possible terrorists in the United States. Terrorists who even now are preparing for the next 9/11. The truth be known this is just a political stunt by Senator Feingold, he's running for President and this will get him some press. He doesn't give a damn if this tactic will embolden al Qaeda and cost American lives; he doesn't give a damn if this tactic will make our intelligence community overly cautious, costing American lives. Senator Feingold is part of the power elite and our soldiers and our shopkeepers just don't register with him, other than for a quick vote once in a while."
Mr. Gutheinz made it clear that Senator Feingold, not he, had become unhinged: "I don't think Senator Feingold is a Benedict Arnold, mainly because he's not that bright, but he is sure not a Paul Revere. No, Senator Feingold is like a male version of Miss Piggy, and like Miss Piggy he has a Narcissistic personality and assumes, wrongly, that people admire what he says and does, when in fact he has a fan club of one, himself, that is if you exclude al Qaeda. I don't necessarily think Senator Russ Feingold is a traitor, how can anyone be disloyal if they have never been loyal to anything but themselves; but I believe he is a pathetic little man, representative of a little party and the extreme left in America."
America: Beware "a pathetic little man, representative of a little party." History shows that sometimes demagoguing is effective.
© Michael Gaynor
Beware any presidential aspirant who puts his or her overweening personal ambition first. Like Senator Russ Feingold, Democrat of Wisconsin. In his zeal to win the Democrats' 2008 presidential nomination, he just moved on from decrying, undermining and delaying the extension of The Patriot Act (at last extended, with limited damage) to sanctimoniously calling for the censure of President Bush for protecting America from terrorist attacks by authorizing warrantless secret surveillance of international telephone calls reasonably believed to be Al Qaeda-related and keeping his terrorist surveillance program secret. Some people will do just about anything to win Cindy Sheehan's endorsement.
On March 12, 2006, Senator Feingold announced that he will introduce a resolution in the United States Senate on March 13 to censure the President of the United States for "authorizing the illegal wiretapping program and then misleading the country about the existence and legality of the program," in the words of the press release posted at Senator Feingold's website. Senator Feingold called his censure resolution "an appropriate and responsible step for Congress to take in response to the President's undermining of the separation of powers and ignoring the rule of law."
The United States Senate should issue a censure resolution. It should censure Senator Feingold, not President Bush. He is far more deserving of censure than amother Wisconsin Senator, Joseph McCarthy, who served his country with distinction during World War II, appreciated the insidious nature of the Communist menace, and was censured by the Senate for confronting it too zealously. Senator Feingold has shown himself to be much more reckless than Senator McCarthy ever was, without any justification.
The MAGIC Lesson
Will Senator Feingold also ask the United States Senate to censure the late President Roosevelt for abusing Americans of Japanese ancestry or keeping it a secret that the Japanese secret code had been broken? Doing that would not be likely to win him votes, so I doubt he will.
For those who want to appreciate the pressing problems confronting a president conducting a war against a deadly enemy and the critical need for secrecy, read Magic: The Untold Story of U.S. Intelligence and the Evacuation of Japanese Residents from the West Coast during WW II, by the late David D. Lowman.
In late 1940 members of the United States Army Signal Intelligence Service broke Japan's highest level diplomatic code and then constructed a machine that was an analog of the one used by the Japanese. This magnificent accomplishment allowed the United States to read Japan's diplomatic messages from then until after the end of the war. Intelligence thus gained was cover named MAGIC. For strategic reasons, the fact that the code had been broken was kept secret, even though that meant that Americans died so that the secret could be kept. War is hell. Losing a war is worse.
The decoded messages of 1941 included a number detailing espionage planning and operations involving Japanese-Americans along the West Coast. Japan attacked Pearl Harbor on December 7, 1941. In February 1942, President Roosevelt authorized the evacuation of all persons of Japanese ancestry and their relocation to internment camps as a wartime measure. In 1983 a congressional commission, despite available declassified intelligence and without the benefit of MAGIC revelations, concluded that President Roosevelt s action was the result of racism, war hysteria and lack of political will. A politically correct conclusion that Congress could make during peacetime, because the United States had prevailed in World War II.
Mr. Lowman, using MAGIC messages and declassified Army, Navy and FBI reports, shows that reality and political correctness are distinct. As a former high level officer in the National Security Agency and a witness before congressional committees dealing with the evacuation he was uniquely qualified to tell this story. Those who could never quite believe the base motives attributed to America and her wartime leaders will find Mr. Lowman's story compelling.
The Publisher's Critical Point: "A reader need not agree with President Roosevelt's decision to evacuate to realize that a serious security problem existed on the West Coast. Imperial Japan, notorious at the time for using overseas Japanese to secure its intelligence, by May 1941 had resident Japanese watching the Los Angeles Harbor and the Mexican Border; had Japanese Americans working in aircraft plants to gather intelligence and had made contacts with Japanese Americans in the U.S. Army for the same purpose. And this was just a small part of it five months before Pearl Harbor."
Publishers Weekly's book description: "This work...makes an important contribution to the history of the WWII imprisonment of Japanese-Americans.... Lowman, who died in 1999, was a former National Security Agency officer involved in declassifying intelligence records, including sources from MAGIC, the decrypted Japanese diplomatic traffic. That material, much of it from late 1941 and early 1942..., describes systematic recruitment of Japanese residents, citizens and noncitizens into networks designed to provide information to Japan both before and after the outbreak of war. Without ascribing Executive Order 9066 for Japanese-American internment entirely to this information, Lowman makes a solid case that the intelligence community's faith in its credibility contributed significantly to the government's decision...."
Democrat demagogue Feingold's press release:
"'The President must be held accountable for authorizing a program that clearly violates the law and then misleading the country about its existence and its legality,' Feingold said. 'The President's actions, as well as his misleading statements to both Congress and the public about the program, demand a serious response. If Congress does not censure the President, we will be tacitly condoning his actions, and undermining both the separation of powers and the rule of law.'
"The President's illegal wiretapping program is in direct violation of the Foreign Intelligence Surveillance Act (FISA). The FISA law makes it a crime to wiretap Americans in the United States without a warrant or a court order. The Bush Administration has obtained thousands of FISA warrants since September 11th and has almost never been rejected by the FISA court. FISA even allows wiretaps to be executed immediately in an emergency as long as the government obtains a warrant within 72 hours.
"'This issue is not about whether the government should be wiretapping terrorists — of course it should, and it can under current law' Feingold said. 'But this President and this Administration decided to break the law and they have yet to give a convincing explanation of why their actions were necessary, appropriate, or legal. Passing more laws will not change the fact that the President broke the ones already in place and for that, Congress must hold him accountable.'"
Bulletin to Senator Feingold: America is at war.
What Americans call the War on Terror is a war that was both initiated and declared by the terrorists. Unfortunately, it was only after September 11, 2001 that America fully focused on combating terrorism. The Clinton administration had treated terrorism as a criminal problem instead of a war. The September 11 attacks conclusively demonstrated that just would not do. So President Bush liberated Afghanistan, after the Taliban refused to stop giving Al Qaeda sanctuary, and Iraq too, after it was obvious that (1) Saddam Hussein would not fully comply with United Nations resolutions and sanctions were failing and (2) generally believed by the intelligence services of the world that Saddam had weapons of mass destruction and was developing more. Of course, President Bush took into account Saddam's history of having tried to acquire nuclear weapons and using weapons of mass destruction against both Iraqis and Iranians. (In a nuclear age, the "fool-me-once-shame-on-you, fool-me-twice-shame on you" attitude is not a good option.)
As The Patriot Act was about to be extended last December, The New York Times deliberately disclosed the very helpful terrorist surveillance program that President Bush's domestic enemies like Senator Feingold maliciously mischaracterized as an illegal domestic surveillance program.
As a result of misinformation from the likes of Senator Feingold, the scope of the war power of the President of the United States (which is the same regardless of the President's party affiliation or even lack of party affiliation) has been grievously misunderstood.
President Bush did NOT exceed his authority in authorizing warrantless surveilliance of some international communications for national security purposes.
The majority opinion and Justice Felix Frankfurter's concurrence in Korematsu v. United States, 323 U.S. 214 (1944), in which internment of Japanese-Americans was recognized as permissible under the war power, emphasize the need to prevail in war and the Constitution's distinction between wartime and peacetime.
The majority opinion concluded:
"It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified."
Justice Frankfurter added these wise words:
"The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.' Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382 and see Home Bldg. & L. Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 88 A.L.R. 1481. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. 'The war power of the United States, like its other powers ... is subject to applicable constitutional limitations', Hamilton v. Kentucky Distilleries, Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108. To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125; Id., 155 U.S. 3, 15 S.Ct. 19, and Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours."
For full discussion of the subject, see America's Constitution, presidential power, and common sense.
The "Fact Sheet" from Senator Feingold on His Censure Resolution:
"Senator Feingold's resolution of censure condemns the President for breaking the law by authorizing an illegal wiretapping program, and for misleading Congress and the American people about the existence and legality of that program.
"The President Broke the Law by Wiretapping Outside of FISA
"It Is Illegal to Wiretap Without the Requisite Warrant or Court Order: The law is clear that the criminal wiretap statute and Foreign Intelligence Surveillance Act (FISA) 'shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.'
"FISA Has an Emergency Exception: The Administration has indicated that it ignored FISA because the application process takes too long. In fact, in an emergency where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits him to immediately authorize the surveillance as long as the government goes to the court within 72 hours. Prior to 2001, the emergency wiretap period was only 24 hours. The Administration requested and received the increase to 72 hours in intelligence authorization legislation that passed in late 2001.
"FISA Provides for Wartime Situations: FISA also permits the Attorney General to authorize warrantless electronic surveillance in the United States during the 15 days following a declaration of war, to allow time to consider any amendments to FISA necessitated by a wartime emergency.
"The Administration Has Used FISA Thousands of Times Since 9/11: Administration officials have criticized FISA, but they have obtained thousands of warrants approved by the FISA court since 9/11, and have almost never had a warrant request rejected by that court.
"The President Made Misleading Arguments Defending his Wiretapping Program
"Military Force Resolution Did Not Authorize Wiretapping: The President has argued that Congress gave him authority to wiretap Americans on U.S. soil without a warrant when it passed the Authorization for Use of Military Force after September 11, 2001. There is no language in the resolution and no evidence to suggest that it was intended to give the President authority to order these warrantless wiretaps. Warrantless domestic surveillance is not an 'incident of war' akin to detaining an enemy soldier on the battlefield as the Administration has argued.
"In fact, Congress passed the Patriot Act just six weeks after September 11 to expand the government's powers to conduct surveillance of suspected terrorists and spies. Yet the Administration did not ask for, nor did the Patriot Act include, any change to FISA's requirement of judicial approval for wiretaps of Americans in the United States.
"Prohibition on Wiretapping Limits Executive Power: The President's assertion of inherent executive power is also wrong. The President has extensive authority when it comes to national security and foreign affairs, but given the clear prohibition in FISA, that authority does not include the power to wiretap American citizens on American soil without a warrant.
"Executive Branch Review of Wiretapping Is Not Enough: The President has argued that periodic executive branch review provides an adequate check on the program. But Congress when it passed FISA explicitly rejected the idea that the executive branch should be fully entrusted to conduct national security wiretaps on its own — a power that the executive had abused in the past. In addition, the Administration has said that NSA employees decide whose communications to tap. Executive branch employees are no substitute for FISA Court judges.
"Congress Did Not Approve This Program: The extremely limited briefings of the President's warrantless surveillance programs to a handful of Congressional leaders did not constitute Congressional oversight, much less approval. In fact, the failure of the President to keep the Congressional Intelligence Committees 'fully and currently informed of all intelligence activities' was a violation of the National Security Act.
"The President Made Misleading Public Statements about Administration Wiretapping
"'Finally, we need to renew the critical provisions of the Patriot Act that protect our civil liberties. The Patriot Act was written with clear safeguards to ensure the law is applied fairly. The judicial branch has a strong oversight role. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S.'
— President George Bush, June 9, 2005, in Columbus, Ohio
"'A couple of things that are very important for you to understand about the Patriot Act. First of all, any action that takes place by law enforcement requires a court order. In other words, the government can't move on wiretaps or roving wiretaps without getting a court order. Now, we've used things like roving wiretaps on drug dealers before. Roving wiretaps mean you change your cell phone. And yet, we weren't able to use roving wiretaps on terrorists. And so what the Patriot Act said is let's give our law enforcement the tools necessary, without abridging the Constitution of the United States, the tools necessary to defend America.'
— President George Bush, July 14, 2004, in Fond du Lac, Wisconsin
"'Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.'
— President George Bush, April 20, 2004, in Buffalo, New York"
Does Senator Feingold remember that Osama bin Laden stopped using his cell phone after The Washington Post reported that American intelligence was monitoring his cell phone calls? Or care? Disinformation is a necessary wartime tactic!
Gutheinz on Feingold
Joseph R. Gutheinz, Jr. is a former military intelligence officer, a retired NASA Office of Inspector General senior special agent, a criminal defense attorney and a college instructor. He was so disgusted that he wrote an acute and astute analysis title "Is Senator Russ Feingold a Traitor?" (http://www.theconservativevoice.com/article/13024.html), on the assumption that a traitor is a person who tries to undermine the Commander-in-Chief during wartime.
Senator Feingold's sophistry did not deceive Mr. Gutheinz: He saw both President Bush and Senator Feingold clearly and lauded the former and lambasted the latter as wartime leaders.
"In time of war we see the best and the worse in our leaders. President George W. Bush has shown a steel backbone and the ability to make hard decisions that benefit each of us and which have saved American lives both here and abroad. I have two sons now in the Army and I thank God that their Commander and Chief is President Bush.
"Unfortunately, in time of war we see the small 'men' coveting lofty positions they neither deserve or are qualified to have. Their words and deeds are often indistinguishable from cow dung which must be scraped off your boots after crossing over a cow pasture on a Texas ranch. As President and as a rancher President Bush has experience carving off the dung that cows produce as well as the dung their dim witted cousins produce in the Democratic Party, that is with every word they say and scrap of paper they generate."
Senator Feingold is not really a friend of Osama bin Laden, but it will not stop him from giving aid and comfort to him, and outraging patriots like Mr. Gutheinz, who summarized the situation this way:
"On Monday March 13, 2006, members of al Qaeda all over the world will be cheering for Senator Russ Feingold as he introduces a five page resolution in the Senate, attempting to censure President Bush for trying to intercept al Qaeda communications with possible terrorists in the United States. Terrorists who even now are preparing for the next 9/11. The truth be known this is just a political stunt by Senator Feingold, he's running for President and this will get him some press. He doesn't give a damn if this tactic will embolden al Qaeda and cost American lives; he doesn't give a damn if this tactic will make our intelligence community overly cautious, costing American lives. Senator Feingold is part of the power elite and our soldiers and our shopkeepers just don't register with him, other than for a quick vote once in a while."
Mr. Gutheinz made it clear that Senator Feingold, not he, had become unhinged: "I don't think Senator Feingold is a Benedict Arnold, mainly because he's not that bright, but he is sure not a Paul Revere. No, Senator Feingold is like a male version of Miss Piggy, and like Miss Piggy he has a Narcissistic personality and assumes, wrongly, that people admire what he says and does, when in fact he has a fan club of one, himself, that is if you exclude al Qaeda. I don't necessarily think Senator Russ Feingold is a traitor, how can anyone be disloyal if they have never been loyal to anything but themselves; but I believe he is a pathetic little man, representative of a little party and the extreme left in America."
America: Beware "a pathetic little man, representative of a little party." History shows that sometimes demagoguing is effective.
© Michael Gaynor
The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)
