“... 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

“The Patriot Act violates the Constitution by allowing..."

“The Patriot Act violates the Constitution by allowing searches and seizures of American citizens and their property without a warrant issued by an independent court upon a finding of probably cause.  Foreign Intelligence Surveillance Courts [...] may issue warrants for individual records, including medical and library records.  It can do so secretly, and the person who turns over the records is muzzled and cannot ever speak of the search.  The attorney general is given the power, with no judicial oversight, to write “national security letters” ordering holders of any of your personal records to hand them over for the government to examine - a power that has already been abused.  You would have no way of knowing that this had been done.

....

In fact, a requirement that law enforcement demonstrate probable cause may help law enforcement officials focus their efforts on true threats, thereby avoiding the problem of information overload that is handicapping the government’s efforts to identify sources of terrorist financing. 

History demonstrates that the powers we give the federal government today will remain in place indefinitely.  How sure are we that future presidents won’t abuse those powers? Politically motivated IRS audits and FBI investigations have been used by past administrations to destroy political enemies.  Past abuses of executive surveillance are the reason FISA was passed in the first place.” -Page 115 & 116 of The Revolution, A Manifesto

 

“If this interpretation of AUMF were correct..."

“If this interpretation of AUMF were correct, moreover, parts of the Patriot Act would have been unnecessary.  Finally, given that FISA, the existing law, deals explicitly and specifically with intelligence gathering, while AUMF [Authorization to Use Military Force] says nothing at all about foreign intelligence, FISA would automatically trump AUMP as a matter of legal principle, even if the administration’s interpretation were correct.

The administration itself didn’t seem to take this argument seriously.  When asked why, if the administration considered FISA inadequate to its purposes, it had not sought to amend it, Attorney General Alberto Gonzales frankly testified that they didn’t think they would be able to win congressional approval for amendments to FISA.  So they proceeded with the program anyway.  [....] Why did they consider amending FISA in order to give themselves a power they supposedly already had?

....

What was the real reason for the program, then?  Who was targeted and why?  No answers to these questions have been forthcoming.  Bland assurances that our leaders are trustworthy and good, and would never abuse powers they have secretly exercised in defiance of the law, can hardly be taken seriously by those who believe in a free society.  Remember Jefferson’s cautionary words about confidence in men: we should be on our guard against our government officials, binding them down from mischief by the chains of the Constitution.  Government surveillance of individuals has been abused in the past, and it has targeted political opponents and the politically unpopular.  That’s why the safeguards that were flaunted here were established in the first place.” - Pages 112 & 113 of The Revolution, A Manifesto

“If this interpretation of AUMF were correct..."

“If this interpretation of AUMF were correct, moreover, parts of the Patriot Act would have been unnecessary.  Finally, given that FISA, the existing law, deals explicitly and specifically with intelligence gathering, while AUMF [Authorization to Use Military Force] says nothing at all about foreign intelligence, FISA would automatically trump AUMP as a matter of legal principle, even if the administration’s interpretation were correct.

The administration itself didn’t seem to take this argument seriously.  When asked why, if the administration considered FISA inadequate to its purposes, it had not sought to amend it, Attorney General Alberto Gonzales frankly testified that they didn’t think they would be able to win congressional approval for amendments to FISA.  So they proceeded with the program anyway.  [....] Why did they consider amending FISA in order to give themselves a power they supposedly already had?
....
What was the real reason for the program, then?  Who was targeted and why?  No answers to these questions have been forthcoming.  Bland assurances that our leaders are trustworthy and good, and would never abuse powers they have secretly exercised in defiance of the law, can hardly be taken seriously by those who believe in a free society.  Remember Jefferson’s cautionary words about confidence in men: we should be on our guard against our government officials, binding them down from mischief by the chains of the Constitution.  Government surveillance of individuals has been abused in the past, and it has targeted political opponents and the politically unpopular.  That’s why the safeguards that were flaunted here were established in the first place.” - Pages 112 & 113 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