“... a piece of legislation I introduced into Congress..."

 “... a piece of legislation I introduced into Congress in late 2007 concisely reflects my views on civil liberties and executive power in light of the war on terror.  I am referring to the American Freedom Agenda Act of 2007.  Among other things, the legislation 

• repeals the Military Commissions Act of 2006 

• forbids the use of statements extracted by torture as evidence in any civilian of military tribunal; 

• subordinates the executive’s surveillance activities to the requirements of the Foreign Intelligence Surveillance Act (FISA); 

• gives the House of Representatives and the Senate legal standing to contest in court any presidential signing statement that indicates the executive’s intention to disregard any provision of a bill; and

• provides that nothing in the Espionage Act of 1917 prevents any journalist from publishing information received from the executive branch or Congress “unless the publication would cause direct, immediate, and irreparable harm to the national security of the United States.”

[......]

Any individual detained as an enemy combat by the United States “shall be entitled to petition for a writ of habeas corpus under section 2241 of title 28, United States Code.”

The Act also says, “No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President’s believe that the subject of the kidnapping, imprisonment, or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process.”  Knowing violations of this section are to be punished as felonies.” -Pages 123 & 124 of The Revolution, A Manifesto

“What was frequently overlooked amid the..."

“What was frequently overlooked amid the ensuing controversy was that the executive branch apparently carried out even more invasive activities, but we never got any answers about those.  When asked whether they had engaged in domestic wiretapping or carried out warrantless searches of people’s homes or correspondence, officials have responded with carefully worded assurances that these things were not done under the program then under discussion - i.e., the Terrorist Surveillance Program.  But were these things being done pursuant to some other program?  No answer.  

When the Attorney General Alberto Gonzales testified before the Senate Judiciary Committee in February 2006, for example, he dealt with questions about whether the administration had engaged in warrantless wiretapping of purely domestic calls.  “Not under the program in which I’m testifying,” came the reply.  Such activity, the attorney general said, was “beyond the bound of the program which I’m testifying about today.”

We do know that for some period of time between September 11, 2001, and March 2004, the executive branch was engaged in a kind of surveillance that was so at odds with American law that then Attorney General John Ashcroft, FBI Director Robert Mueller, and Deputy Attorney General James Comey threatened to resign if it continued.  What exactly was the executive branch up to that caused so much dissent even among its own loyalists? Who was victimized during this time?  Why are we not hearing the answers - or even the questions?” -Pages 113 & 114 of The Revolution, A Manifesto

“...why, in a free society with a supposedly..."

“...why, in a free society with a supposedly independent media, did arguably the most influential in the United States keep Americans in the dark about a program like this?  The answer we were given involved unspecified national security concerns that the Times supposedly did not want to jeopardize.  But that explanation does not hold water at all.   We may safely assume that terrorists are clever enough to realize that our government is listening in on their conversations, even without the Times telling them so.  The very name of the Foreign Intelligence Act (FISA) of 1978 is a dead giveaway.  

As far as we have been told, the only way that this program, administered by the U.S. National Security Agency (NSA), diverged from previous intelligence efforts is that this one operated without FISA warrants- warrants issued in secret by special courts, in conformity with the 1978 Act.  Awareness of this aspect of the program would have done nothing to aid terrorists.  FISA warrants are issued in secret anyway, so neither under FISA nor under the NSA program would a terrorist know for sure that the government was eavesdropping on his conversations. 

It looks very much like the old story:  the government says “national security” and the natural and normal skepticism that our Founding Fathers taught us to have toward the government is promptly abandoned.  The simple and straightforward reason the executive branch wanted the program kept secret, its consistent obfuscation notwithstanding, seems to be that it violated the laws. 

The reasons we were given for why the program was necessary were at least as unconvincing as the Time’s defense of concealing it.  On the one hand, we were told that only targets of the program were people with links to terrorist organizations like al Qaeda.  At the same time, we were told that the sheer number of targets made FISA warrant applications impracticable. 

I believe that constitutional lawyer Glenn Greenwald has identified a fatal contradiction in these claims.  It is is true that the executive branch knew the locations of so many people with al Qaeda links, why were they seeking merely to eavesdrop on their conversations?  Why were they not arresting them instead?  This, after all, is an administration that has detained people indefinitely, without charges, on the basis of sometimes shaky evidence of an al Qaeda connection.  This time, we are supposed to believe that the administration had knowledge of countless al Qaeda figures and decided to let them remain free?  Not plausible, and that is why it seems likely that the targets of this surveillance included many Americans who had no ties to al Qaeda or terrorism at all.”  -Pages 109-111 of The Revolution, A Manifesto

"The power of the executive branch, for instance, has expanded far beyond.."

"The power of the executive branch, for instance, has expanded far beyond what the Framers of the Constitution envisioned.  One mechanism that has strengthened it is the executive order, an instrument by which presidents have exerted powers that our Constitution never intended them to have.  An executive order is a command issued by the president that enjoys his authority alone, not having been passed by Congress.  Executive orders can have legitimate functions.  Presidents can carry out their constitutional duties or direct their subordinates by executive order, for instance.  But they can also be a source of temptation for ambitious presidents, since they can always try to get away with using them as a substitute for formal legislation that they know they cannot get to pass.  He can thereby circumvent the normal, constitutional legislative process. 

Executive orders were rare in the nineteenth century; for a president to issue even several dozen was unusual.  The first twentieth-century president to serve a full term, Theodore Roosevelt (who served two, in fact), issued over three thousand. 

This is a travesty against our constitutional system, and any president worthy of the office would absolutely forswear the use of executive orders except when he can show express constitutional or statutory authority for his action."  -Pages 41-43 of The Revolution, A Manifesto