In his annual end-of-the-year speech delivered on Saturday, President Bush admitted to having committed at least 30 federal crimes by having issued an executive order authorizing the National Security Agency to intercept the international communications of people, including U.S. citizens (known in the law as "United States persons"), with known links to Al Qaeda and related terrorist organizations, and renewing that order, according to one report, more than 36 times. Each renewal could be considered by a court to constitute a separate crime.
The Foreign Intelligence Surveillance Act (FISA) of 1978, a law passed in response to public outrage over the extent of domestic spying during the Kennedy, Johnson, and Nixon administrations, establishes the legal means by which government agents may obtain warrants for electronic surveillance (wiretaps) to, in the words of the statute, "obtain foreign intelligence information."
The statute states, in pertinent part, "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that (A) the electronic surveillance is solely directed at (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers; or (ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power; [and] (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
A "United States person" is defined under this Act as "a citizen of the United States; an alien lawfully admitted for permanent residence; an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power."
Seems pretty simple, right? In executing FISA warrants, the person under surveillance can't be a U.S. citizen or resident alien, either individually or as part of a group of same. Sec. 1809 of the Act says that anyone who violates the provisions of the Act can be punished by a fine of not more than $10,000 and/or imprisonment for not more than five years – and that would be for each violation.
The USA PATRIOT Act changed FISA slightly by allowing FISA warrants to be issued if "a significant purpose," rather than "the purpose," for obtaining the warrant was/is intelligence gathering. The government has since taken the position, enunciated by then-Attorney General John Ashcroft, that the PATRIOT Act breaks down the "wall" that separated foreign intelligence investigations from domestic criminal investigations by allowing the sharing of information between police, prosecutors, etc. and intelligence agencies as long as the information shared is "foreign intelligence information." However, neither the PATRIOT Act nor any other congressional legislation has authorized FISA to issue warrants whose targets are United States persons.
But the authority under which FISA may issue search warrants barely enters into the current situation: President Bush's order allows warrantless searches of, among others, United States persons – exactly the situation the FISA law was enacted to prevent, and a situation that the PATRIOT Act did not change.
Both the president and several advisors, including Condoleezza Rice and Attorney General Alberto Gonzales, have claimed various rationales under which the president could legally issue such an order.
On "Meet the Press" Sunday, Rice claimed that the president had both constitutional power and legislative authority to issue the order, but when pressed by moderator Tim Russert twice to name the specific clause or statute which granted Bush such power, Rice had no specific answer.
In a statement Monday, Gonzales said that, "Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority." Indeed, FISA provides that, "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."
One problem: Congress has never formally declared war – on Iraq, on terrorism, on drugs or on any other country or concept since FISA was enacted – and under the Constitution, only Congress can declare war. Moreover, the information sought by such surveillance must be "foreign intelligence information." The president has said, "[T]his program is limited in nature to those that are known al Qaeda ties and/or affiliates," and although there is reason to believe than many of the surveillances done under Bush's order were not so related, "U.S. persons" still would still be exempt from any legal order.
And while Bush also assured, in a press conference held Monday, that "[T]hese calls are not intercepted within the country. They are from outside the country to in the country or vice versa. So in other words, this is not, you know, a – if you're calling from Houston to L.A., that call is not monitored," when one reporter asked, "Then why not monitor those calls between Houston and L.A.? If the threat is so great, and you use the same logic, why not monitor those calls?", Bush replied, "We will, under current law, if we have to. We will monitor those calls. And that's why there is a FISA law. We will apply for the right to do so."
Wrong answer, Mr. President. Under FISA and even under the PATRIOT Act, listening in on U.S. persons' calls is still illegal.
Moreover, one reporter noted that, "according to FISA's own records, it's received nearly 19,000 requests for wiretaps or search warrants since 1979; rejected just five of them. It also operates in secret so security shouldn't be a concern. And it can be applied retroactively. Given such a powerful tool of law enforcement is at your disposal, sir, why did you see fit to sidetrack that process?"
It was a key question, since it correctly noted that under FISA, a wiretap can be put in place, and permission to do so obtained after-the-fact. Yet neither the administration nor the National Security Agency applied for any ex post facto warrants, thereby turning a possibly legal act into a clearly illegal one.
Bush had no real answer for that, other than to claim he already had the authority to order the taps without any consideration of FISA.
"As president and commander in chief," Bush said at the press conference. "I have the constitutional responsibility and the constitutional authority to protect our country. Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it."
In fact, the Constitution does not call on the president to "protect the country," and the power to order domestic spying would not be one of the powers of the commander in chief. Beyond that, Article II of the Constitution only provides that a president may "grant reprieves and pardons for offenses against the United States"; make treaties and nominate and appoint "ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for" as long as two-thirds of the senators concur. He can also make recess appointments to "fill up all vacancies that may happen during the recess of the Senate." That's pretty much it as far as constitutional presidential power is concerned – but that means little for this president and his administration.
"What the president would say is, there are implied powers of the commander in chief that enable this to be done," claimed conservative columnist George Will on ABC's "This Week with George Stephanopoulos." "This president, however, has asserted a capacious doctrine of executive power and the war powers and it's literally unlimited, and it's hard for me to believe that's true."
There's probably no sense in waiting for an outcry from conservatives that, as with the recent Supreme Court nominees, "implied powers" are just they don't want. After all, they trust the administration to "do what's right" – even if laws are broken in the process.
So what does this all mean, and what impact might it have on the adult industry?
Well, aside from Sen. Russ Feingold's remark that, "This shocking revelation ought to send a chill down the spine of every American," it means that the president has bypassed both Congress and the federal courts, and arrogated what one reporter described as "dictatorial power" to himself that the Constitution does not bestow.
"This administration feels it's above the law, and the American people and our Constitution pay the price," Sen. Edward Kennedy said on the Senate floor. "This is Big Brother run amok."
Kennedy said the above during the debate on whether to reauthorize expiring sections of the PATRIOT Act, several of which give the government extensive powers to secretly obtain records of citizens' bank accounts, credit card purchases, reading materials, apartment/office leases, driver's licenses, telephone use, e-mail use, instant message use and Web surfing. But even more to the point was another comment by Feingold.
"I don't want to hear again from the attorney general or anyone on this Senate floor that this government has shown it can be trusted to use the power we give it with restraint and care," Feingold said.
"The scary thing is that there's no checks and balances," said a former senior intelligence official who left the government in 2003. "And if you can ignore the FISA law, what else can you ignore?"
Bush had bristled at exactly that during the press conference, when one reporter asked, "I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a president during wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?"
Bush responded, "First of all, I disagree with your assertion of unchecked power. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time. And on this program to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you we have briefed the United States Congress on this program a dozen times."
There's a huge difference, however, between briefing legislators and having those legislators confirm those actions by passing laws.
But the bottom line is much more grim.
"If a president can break any law he wants, even with the best of motives, I must tell you, that's the way the Iraqis used to be suffering under, and it's not the way we Americans do it," noted journalist Sam Donaldson on "This Week." "What law couldn't he break if he thinks it's important?"
It's a question that every adult industry member needs to ask. Are industry members satisfied that all conversations, phone calls, e-mails and financial transactions of which they're a part are completely above governmental scrutiny; that no part of them could be construed as an illegal act or part of a conspiracy to, say, distribute obscenity? Jan LaRue, chief counsel for Concerned Women for America, a religio-reactionary group, has already described adult producers as "terrorists," and since there is no legal definition of that word, nothing stops the government, already no friend of the adult industry, from adopting that term and running with it, past FISA and right into industry computers, phone lines and bank records – and under the PATRIOT Act's restrictions, no victim of this invasion would even know it's happened until an FBI agent showed up on the doorstep to arrest him/her!
Just another reason why adult industry members need to be aware of what their government does and how it does it. AVN.com considers itself duty-bound to aid in that awareness.
