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George the Spy and the Case of the Missing Constitution

Reported by Janie - December 20, 2005

Yesterday (12/19) Mike Jerrick and Juliet Huddy spent much of Dayside discussing the recent developments in the Bush Spying scandal. They invited Fox regular, Judge Andrew Napolitano, on to discuss his take on the case.

MJ: "The Foreign Intelligence Surveillance Act. How far back does it go?"

AN: "It goes back to 1977, it was written by the Congress in response to President Nixon using the FBI and CIA to spy on Vietnam War protesters. One of those war protestors was convicted of a crime as a result of what the government learned by spying on him, and when that conviction was appealed to the Supreme Court, the Supreme Court said 9-0 the President cannot spy without a search warrant."

JH: "But that was a different time, this is after 9/11, that was a war protester, we're talking about suspected terrorists, people that want to blow this country up with nuclear weapons and all sorts of horrendous materials..."

AN: "That's why we have judges, so that you can present the evidence to the judge. Just like Jerry McGuire said 'Show me the money", 'show me the evidence'! The FISA allows the display of this evidence to a secret court, in secret, so the defendant doesn't know about it and the public doesn't know about it, the President bypassed that law."

MJ: "But the President, check this out, he thinks it's legal because the Congress gave him the right to use force, is that the same thing as a declaration of war?"

AN: "No. When Congress enacted the FISA act in 77, it also made it criminal for anyone in this country to use the power of the government to wiretap without a search warrant. It made it easy to get the search warrant with the FISA law, but it said you HAVE to get the search warrant."

MJ: "So what the President's done is a criminal act?"

AN: "The President has violated the law, in the name of National Security, not wanting to violate the law, believing he's doing the right thing, but he violated it nevertheless. He can't pick and choose which laws to obey, or not to obey, anymore than the rest of us can."

Audience Member1: "Communications is everything in relationships, you can't do anything unless you communicate it to another person, so communication between the terrorists, we listen in on it, we find out what they're doing. They have to say what they're going to do, and we need to know."

AN: "Listen, Abraham Lincoln once said, if you call a tail a leg, how many legs does a cat have? Everyone says five, and Lincoln said no, the answers 4. Because calling a tail a leg, doesn't make a tail a leg. Calling someone a terrorist or a bad guy doesn't make them a terrorist or a bad guy. There has to be some evidence, now that's not Napolitano, that's the Constitution."

AM2: "If there's a view that a law has been broken, why shouldn't it be taken up by the courts?"

AN: "The President does not want this to be taken up by the courts, because he knows the last time the court took it up, they ruled 9-0 the President can't do this."

AN: "The President took an oath to uphold the Constitution, to faithfully enforce the laws, he has to uphold the Constitution, and enforce all the laws, even the laws that say thou shalt not wire tap without a warrant."

AM3: "I think we have good attorneys on both sides. One on one side saying that the President has done the appropriate thing. And I think as Mr. Hume said we've got to give the President the authority to protect me. I use my cell phone all the time, I don't have any problem with folks listening to the conversations I have because they are appropriate conversations."

JH: "Change the law, change the act?"

AN: "One of the rights that we have in this country is the right to be left alone. If we let the government listen to all of our conversations, we'll become like East Germany was. We fought a Cold War for 40 years against governments that spied on their own people. Are we going to let that happen here?"

MJ: "How fast can you get a FISA court ruling?"

AN: " When I was a judge and agents could come to me 24/7, when you have that assignment. You don't have the assignment every day, or you wouldn't get any sleep. But during the week you have that assignment, they'd come to me at 3 in the morning and say that we know this guy is in such and such place, he's going to leave at 6 in the morning, here's the evidence we have that he's doing thus and so, they present this to me under oath, I hand write the search warrant, they go and serve it."

JH: "Is it always that easy, or does the judge sit there and pour over the evidence? Are there certain judges that are less amenable to doing this?"

AN: "In the case of the FISA court, it's easier, because it can be done on the phone and it can be done through e-mail. The President should not have bypassed them."

MJ: "I hate when people go, oh you know President Clinton did it too, but didn't President Clinton do it too? Project Echelon."

Comment: What a sham! Jerrick claims that he hates when people say "President Clinton did it too", but then spins the story to make it appear that only Clinton was involved in Project Echelon.

Project Echelon is a Signals intelligence and analysis network that intercepts radio and satellite transmissions, telephone calls, faxes and e-mails. The agreement was signed by the United States, the UK, Canada, Australia and New Zealand in the aftermath of World War II. The project itself has been around almost longer than Clinton was even alive. It has been used in the "war on drugs" and the "war on terror", obviously showing Clinton was not the only President to use the project.

As Mike Jerrick attempts to tie Clinton to Project Echelon, would it not have been "fair and balanced" to not just simply name drop the program, knowing the viewers aren't going to race out and do the research, but to actually mention what the program was and how long it has been in existence, and who, other than Clinton, used the program?

AN: "President Clinton broke the law as well. The Echelon program, it doesn't matter why you spy on Americans, you have to have a search warrant. The Congress wrote the law, not any left-winger or conservative, the Congress wrote the law, it's the law of the land. The President took an oath to uphold the law!"

Comment: Napolitano hit the nail on the head in this segment, although he left out a very important fact about FISA, which could very well have allowed the audience to get the full picture on the story.

Section 1805 of FISA states: "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. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed."

So the President has the power to initiate an emergency wiretap, but would need to get the warrant within 72 hours. Bush is claiming that he needed to initiate these wiretaps because they were on an emergency basis, but the law, which only a dictator would violate, already has a provision that provides for such emergencies. I, personally, have not seen this fact mentioned anywhere on Fox, let alone on Dayside.

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