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Posted by on Dec 23, 2005 in At TMV | 0 comments

Daschle Says Congress Specifically Didn’t Grant Bush Warrantless Spy Powers (UPDATED)

Former Senate Minority Leader Tom Daschle says Congress specifically declined giving President George W. Bush the power to do warrantless wiretaps in the immediate aftermath of 911 — thus raising the level of an already hot controversy up a big notch or two:

In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president “was granted authority by the Congress to use all means necessary to take on the terrorists, and that’s what we’ve done.”

As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

In his Washington Post piece Daschle details precisely what the administration sought and what it got:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration’s request for an unprecedented grant of
authority.

The Bush adminstration, as he notes, is now saying that these powers were implied but:

The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress — but at the time, the administration clearly felt they weren’t or it wouldn’t have tried to insert the additional language.

Indeed, if they already had the whole ball of wax, why WOULD they seek to ask Congress for another one?

What this will do is strengthen the hand of those of both parties who are insisting upon hearings on this issue. The adminsistration came to power making fun of President Bill Clinton saying “it all depends on what the meaning of is is” but this is the “it all depends on what the meaning of is is” adminsistration in legal matters.

But the political dynamics are not clear-cut: Bush’s poll numbers are steadily rising as he has taken to the hustings and airwaves, which means GOPers will feel it’s safe and wise to stand by him and give him the benefit of the doubt. Daschle’s piece will be waved by Democrats as proof of wrongdoing, dismissed by Republican loyalists, and be troubling to Republican libertarians. You can already hear libertarian rumblings in the GOP: one of the strongest manifestations of it — actually calling for Bush’s resignation and impeachment — can be found in this column by Vox Day, a Christian libertarian, in World Net Daily.

Even with Daschle’s column (which is sure to be dismissed and discredited by many on the right) those who claim the U.S. is on the brink of an impeachment are being a bit premature. More likely, we’re heading into one of the most polarizing years ever — one that will make what we have seen so far look like a 1960s “Love In.” Expect jalapeño-peppery hearings on intelligence matters and Supreme Court nominees, more fiery than we’ve seen in years.

UPDATE I:
Miami Herald – Is domestic surveillance necessary?

UPDATE II: The administration has sent a letter to Congress defending its spying operations, the New York Times reports:

In its first formal response to Congress on the growing controversy over domestic spying, the Bush administration argued Thursday that the president’s authorization of domestic spying was consistent with the 1978 law that governs the government’s electronic eavesdropping.

The letter to Congress, which was signed by William E. Moschella, assistant attorney general for Congressional affairs, said the administration considered the Foreign Intelligence Surveillance Act, and the court established through it, “a very important tool” in fighting terrorism and “makes full use” of it.

But the letter, which was sent to the chairmen of the House and Senate Intelligence Committees, said the system “could not have provided the speed and agility for the early warning system” demanded by President Bush.

It also argued that the administration could not have sought expanded authority from Congress under the law without risking exposure. To go to Congress for legislative authority, the department said, “would have tipped off our enemies concerning our intelligence limitations and capabilities.”

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