President George W. Bush has acted as a dictator, “a ruler who is unconstrained by law1“, as shown in three cases recently in the news. In one case, Bush violated the fifth amendment to the Constitution by labeling a US citizen, Jose Padilla, an “enemy combatant” and holding him for three-and-a-half years without charge2x3. The Bush administration invented the “enemy combatant” concept, which defines a class of prisoner beneath national and international law4. Now the Bush administration is charging Padilla to prevent the “enemy combatant” question from going to the Supreme Court5, but the charges do not include the “dirty bomb” claim that the administration announced upon Padilla’s arrest6. Bush may be secretly holding more citizens as “enemy combatants7“. In another case, Bush violated the fourth amendment and Foreign Intelligence Surveillance Act (FISA) law by directing the National Security Agency (NSA) to do domestic wiretapping without a warrant8. Bush said that he did it to “act fast9“, but the FISA law already allows a retroactive warrant for urgent situations10. Under Bush the NSA has also spied on US government officials and journalists for political purposes11x12. In a third case, Bush, when signing the defense appropriation bill, also signed a statement saying he has the right to ignore the provision in the bill banning torture13. In each of these cases, Bush claims that he, as commander-in-chief, has the authority to act as such during the “war on terror” – an authority that places the President above the law. As the hazy “war on terror” goes on and on, so would these dictatorial powers of Bush and future Presidents.
The US Congress is taking some action to reign-in Bush on the NSA warrantless spying case. Senator Arlen Spector (R-PA), chairman of the judiciary committee, plans to hold hearings this month14. Senator Barbara Boxer (D-CA) has asked for expert advice on whether the NSA domestic spying order constitutes an impeachable offence15.
2 Fifth Amendment “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury …nor be deprived of life, liberty, or property, without due process of law”
3 ;Transcript of the Attorney General John Ashcroft Regarding the transfer of Abdullah Al Muhajir (Born Jose Padilla) To the Department of Defense as an Enemy Combatant June 10, 2002′ – Washington File ‘I am pleased to announce today a significant step forward in the war on terrorism. We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or “dirty bomb,” in the United States.’
4 ‘Unlawful combatant’ – Wikipedia ‘prisoners detained under November 13, 2001 Presidential Military Order on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” were subsequently named by the US administration “illegal enemy combatants”. However, international criticisms have pointed out that the term was a juridical invention, which didn’t appear in any treaty concerning laws of war, and that it deprived the detainee of any rights whatsoever.’
5 ‘Terror suspect’s day in court delayed – Former ‘enemy combatant’ will be arraigned January 12′, CNN, Saturday, January 7, 2006 ‘On Wednesday, the Supreme Court granted a request from the government authorizing Padilla’s transfer back to Justice Department custody. A federal appeals court had temporarily blocked the move. Next Friday, the justices will consider in a closed-door conference whether to rehear the Padilla case. “The issue that is primarily before the court that we’ve asked them to take is: Does the president of the United States have the authority to sign a piece of paper and send someone to jail without criminal process and have him held by the military? We say the Constitution doesn’t permit that,” Patel said. The government had argued that issue is moot because Padilla now faces criminal charges and has been released from military custody.’
6 ‘Terror suspect’s day in court delayed – Former ‘enemy combatant’ will be arraigned January 12′, CNN, Saturday, January 7, 2006 ‘The indictment alleges the men belonged to a North American terrorist support cell and intended to carry out jihad, or holy war, in foreign countries. In a sharply worded opinion two weeks ago, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, noted differences between the criminal charges filed against Padilla in November and earlier accusations leveled against him as an enemy combatant.’
7 ‘In Terror War, 2nd Track for Suspects – Those Designated ‘Combatants’ Lose Legal Protections’ by Charles Lane, Washington Post, December 1, 2002 “under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen’s home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it.”
8 ‘Bush Lets U.S. Spy on Callers Without Courts’ by James Risen and Eric Lichtblau, New York Times, December 16, 2005 ‘Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.’
9 ‘Bush: Secret wiretaps have disrupted potential attacks – President says speed of eavesdropping essential’ – CNN, December 20, 2005 ‘Bush said. “To save American lives, we must be able to act fast and to detect these conversations so we can prevent new attacks.”’
10 ‘US Code Collection’ – Cornell Law School (click on ‘1805′) ‘TITLE 50 > CHAPTER 36 > SUBCHAPTER I > 1805 (f) Emergency orders: Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.’
11 ‘NSA INTERCEPTS FOR BOLTON MASKED AS ‘‘TRAINING EXERCISE‘’‘ by Wayne Madsen, May 15, 2005 ‘According to National Security Agency insiders, outgoing NSA Director General Michael Hayden approved special communications intercepts of phone conversations made by past and present U.S. government officials. The intercepts are at the height of the current controversy surrounding the nomination of Undersecretary of State John R. Bolton as ambassador to the United Nations. It was revealed by Connecticut Senator Christopher Dodd during Bolton’s Senate Foreign Relations Committee nomination hearing that Bolton requested transcripts of 10 NSA intercepts of conversations between named U.S. government officials and foreign persons. Later, it was revealed that U.S. companies [also treated as “U.S. persons” by NSA] were also identified in an additional nine intercepts requested by Bolton. However, NSA insiders report that Hayden approved special intercept operations on behalf of Bolton and had them masked as “training missions” in order to get around internal NSA regulations that normally prohibit such eavesdropping on U.S. citizens.’
‘The inquisition side of NSA is the one that Hayden and his advisers do not want the public to see. In fact, NSA maintains a database that tracks unofficial and negative articles written about the agency. Code named “FIRST FRUITS,” the database is operated by the Denial and Deception (D&D) unit within SID. High priority is given to articles written as a result of possible leaks from cleared personnel.
In order that the database did not violate United States Signals Intelligence Directive (USSID) 18, which specifies that the names of “U.S. persons” are to be deleted through a process known as minimization, the names of subject journalists were blanked out. However, in a violation of USSID 18, certain high level users could unlock the database field through a super-user status and view the “phantom names” of the journalists in question. Some of the “source” information in FIRST FRUITS was classified – an indication that some of the articles in database were not obtained through open source means. In fact, NSA insiders report that the communications monitoring tasking system known as ECHELON is being used more frequently for purely political eavesdropping having nothing to do with national security or counter terrorism.’
13 ‘Bush Could Bypass New Torture Ban – Waiver right is reserved’ by Charlie Savage, The Boston Globe, January 4, 2006 ‘After approving the bill last Friday, Bush issued a “signing statement” — an official document in which a president lays out his interpretation of a new law — declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.’
14 ‘NSA in turmoil over U.S. spying’ By Douglas Birch, The Baltimore Sun, January 8, 2006 ‘Sen. Arlen Specter of Pennsylvania, the Republican chairman of the Senate Judiciary Committee, told The New York Times that he planned to hold hearings on the surveillance program after confirmation hearings for Judge Samuel Alito to the Supreme Court. Those hearings may stretch into early next month.’
On Sunday, December 18, former White House Counsel John Dean and I participated in a public discussion that covered many issues, including this surveillance. Mr. Dean, who was President Nixon’s counsel at the time of Watergate, said that President Bush is “the first President to admit to an impeachable offense.” Today, Mr. Dean confirmed his statement.
This startling assertion by Mr. Dean is especially poignant because he experienced first hand the executive abuse of power and a presidential scandal arising from the surveillance of American citizens.
Given your constitutional expertise, particularly in the area of presidential impeachment, I am writing to ask for your comments and thoughts on Mr. Dean’s statement.
Unchecked surveillance of American citizens is troubling to both me and many of my constituents. I would appreciate your thoughts on this matter as soon as possible.
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