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The Taft-Hartley Act makes permanent the ban on contributions to federal candidates from unions (see June 25, 1943), corporations, and interstate banks (see 1925), and extends the regulations to cover primaries as well as general elections. It also requires union leaders to affirm that they are not supporters of the Communist Party. President Harry S. Truman unsuccessfully vetoed the bill when it was sent to his desk, and when Congress passes it over his veto, he echoes AFL-CIO leader John L. Lewis by denouncing the law as a “slave-labor bill.” Taft-Hartley declares the unions’ practice of “closed shops” illegal (employers agreeing with unions to hire only union members, and require employees to join the union), and permits unions to have chapters at a business only if approved by a majority of employees. The law also permits employers to refuse to bargain with unions if they choose. And, it grants the US attorney general the power to obtain an 80-day injunction if in his judgment a threatened or actual strike “imperil[s] the national health or safety.” (Federal Elections Commission 1998; U-S History (.com) 2001; Center for Responsive Politics 2002 ; John Simkin 2008)
President Harry Truman signs the National Security Act of 1947, reorganizing the military and overhauling the government’s foreign policy-making bureaucracy. The act gives birth to three major organizations: the Department of Defense (DOD), the Central Intelligence Agency (CIA) and the National Security Council (NSC). The DOD unifies the three branches of the military—the Army, Navy and Air Force—into a single department overseen by a secretary of defense. The act establishes a separate agency, the CIA, to oversee all overt and covert intelligence operations. The act forms the NSC to directly advise the President on all matters of defense and foreign policy. In addition, the act establishes the National Security Resources Board (NSRB) to advise the President “concerning the coordination of military, industrial, and civilian mobilization” in times of war. Should the nation come under attack, the NSRB will be in charge of allocating essential resources and overseeing “the strategic relocation of industries, services, government, and economic activities, the continuous operation of which is essential to the Nation’s security.” (US Congress. House. Senate. 7/26/1947; Trager 11/1977)
Advertising executive Thomas Rosser Reeves Jr. approaches Republican presidential candidate Thomas Dewey and offers to produce television ads for the Dewey campaign. Dewey is even with Democratic incumbent Harry Truman in the polls. “This could be a close election,” Reeves says. “I can pretty much tell which states are going to be close. If you would start two or three weeks before Election Day and saturate those critical states with spots, it could swing the election.” Reeves may be aware of the powerful impact negative newsreels had on the 1934 California gubernatorial election (see 1934). Dewey refuses, saying, “I don’t think it would be dignified.” Dewey subsequently loses one of the closest presidential elections in US history. In 1990, media pundit Roger Simon will write: “In 1948 there were fewer than 500,000 TV sets in America. Four years later there were nearly 19 million. And nobody ever said no to television again.” (Simon 10/1/1990)
With the approval of President Harry S. Truman, the US government constructs a massive 200,000-square-foot underground facility along the Maryland-Pennsylvania border, about seven miles north of Camp David and about 65 miles north of Washington, DC. Site-R at Raven Rock, officially known as the Alternate Joint Communications Center, is one of 96 bunkers being assembled around the nation’s capital in preparation for a potential nuclear conflict with the Soviet Union (see 1950-1962). Site-R is designed to serve as a complete backup to the Pentagon in times of war and is complete with state-of-the-art technology, alternate command posts, war rooms, and living spaces for top officials. The subterranean fortress resembles a small city, with all the basic necessities for sustaining a population in the thousands for months at a time. The site is equipped with its own self-generating power supply, offices, medical clinic, fire department, mail service center, dining halls, and dormitories. The facility is said to have its own a chapel, two fishing lakes, a barbershop, a drug store, and even a bowling alley. There are also rumors that an underground tunnel connects Site-R to Camp David less than 10 miles to the south. Decades later, Vice President Dick Cheney and other high-ranking officials will relocate to Site-R in the aftermath of the terrorist attacks of September 11, 2001 (see (11:00 a.m.) September 11, 2001 and September 12, 2001-2002). (Guo 8/7/1985; Gup 5/31/1992; Gifford 12/2/2000; Weiser 6/25/2002; Goldstein 7/20/2004)
Fears of a nuclear conflict with the Soviet Union inspire the US government to construct a network of 96 nuclear-resistant fallout shelters around Washington, DC. The underground “Federal Relocation Centers,” collectively known as the “Federal Relocation Arc,” are designed to serve as both living quarters and command bunkers for a post-nuclear government. The underground installations will later be described as the “backbone” of the ultra-secretive Continuity of Government (COG) program, which is meant to keep the government functioning in times of national emergency. Under Presidents Harry S. Truman and Dwight D. Eisenhower, the US government spends billions of dollars carving out caves and assembling the underground fortresses in preparation for nuclear war. Upon completion, the bunkers are said to resemble small cities, each capable of sustaining a population in the thousands for months at a time. Each facility is equipped with its own self-generating power supply, fresh water source, living quarters, food rations, command posts, telecommunications equipment, and other requirements for housing officials and running the federal government from deep underground. In the event of a crisis, high-ranking officials, most notably the president and those in the presidential chain of command, are to be secretly whisked away to the underground installations in order to ensure the continuation of government functions. Some of the known underground locations include Mount Weather, fortified within the Blue Ridge Mountains about 50 miles west of Washington, DC (see 1952-1958); Site R, along the Maryland-Pennsylvania border near Camp David (see 1950-1954); and the Greenbrier, underneath a hotel resort in White Sulphur Springs, West Virginia (see 1959-1962). (Pollock 3/1976; Gup 12/9/1991; Gup 5/31/1992; Gup 8/10/1992; Gifford 12/2/2000; Weiser 6/25/2002)
President Harry Truman, without the approval of Congress, sends US troops to fight in the Korean War. Unlike his predecessor (see December 8, 1941), Truman asserts that he has the inherent right to do so as the commander in chief (see 1787 and 1793). Truman bases his decision in part on a UN Security Council resolution passed three days before—at the US’s behest—approving military aid to South Korea, which was invaded by North Korean troops on June 25. In 2007, reporter and author Charlie Savage will write: “But the permission of foreign states was irrelevant to the domestic legal issue of who got to decide whether the United States would go to war. No president had ever before launched anything on the scale of the Korean War without prior permission from Congress, as the Constitution requires.” Savage will explain why Congress allows Truman to usurp its prerogatives: “[M]embers of Congress, eager to appear tough against Communism and to support a war effort, did nothing to block Truman.” (Savage 2007, pp. 19; Truman Library 3/2008)
President Harry S. Truman signs Executive Order 10186, shifting many responsibilities of the National Security Resources Board (NSRB), which oversees federal emergency planning, to a new civil defense organization, the Federal Civil Defense Administration (FCDA). The FCDA is placed within the Office of Emergency Management (OEM), an agency established as part of the Executive Office of the President years earlier by President Franklin Roosevelt (see September 8, 1939). The purpose of the FCDA, according to President’s Truman’s order, “shall be to promote and facilitate the civil defense of the United States in cooperation with several States.” (Executive Order 10186 12/1/1950) The Federal Civil Defense Act of 1950 will be signed into law weeks later, establishing the FCDA as an independent agency and detailing the organization’s responsibilities (see January 12, 1951)
President Harry S. Truman signs Executive Order 10193, establishing the Office of Defense Mobilization (ODM) within the Executive Office of the President. The ODM is granted a wide range of emergency powers in order to mobilize civilians, industries and government agencies to defend the country during a crisis. As part of a broad “mobilization” effort, President Truman calls for increasing the number of total armed forces, increasing defense spending, and expanding the economy to increase war production. President Truman declares a national emergency and delegates many of his war powers to the head of the ODM. According to the New York Times, “President Truman proclaimed a state of emergency this morning and delegated many of his own war powers to Charles E. Wilson, the new mobilization director.” Citing the threat of “Communist imperialism,” President Truman “signed the proclamation of emergency, which unleashed scores of additional executive powers, and issued an executive order granting virtually blanket authority to Mr. Wilson to carry out all aspects of war production and economic control he deemed necessary.” According to the order, the mobilization director “shall on behalf of the president direct, control, and coordinate all mobilization activities of the executive branch of the government, including but not limited to production, procurement, manpower, stabilization, and transport activities.” (Executive Order 10193 12/16/1950; Leviero 12/16/1950, pp. 1; Leviero 12/16/1950, pp. 1)
President Harry S. Truman signs the Federal Civil Defense Act of 1950. The Federal Civil Defense Administration (FCDA), established weeks earlier within the Executive Office of the President (see December 1, 1950), is transformed into an independent agency headed by a presidential appointee. The FCDA is placed in charge of providing emergency aid and assistance to local communities affected by disasters. The act also provides special emergency powers to the FCDA and the President in the event of a national crisis. According to President Truman, the act establishes a “basic framework for preparations to minimize the effects of an attack on our civilian population, and to deal with the immediate emergency conditions which such an attack would create.” According to the New York Times, “The measure directs the Federal Government to provide leadership to states and communities in developing arrangements to protect civilian life and property in the country’s 150 critical target areas against possible enemy attack by atomic bombs, biological or bacteriological warfare or any other technique.” The new civil defense plans are estimated to cost $3.1 billion. The FCDA will distribute brochures and produce television and radio segments aimed at preparing the general public for a nuclear attack. The FCDA will also stage drills and exercises to test public and government readiness for such a disaster. The agency will become infamous for encouraging civilians to “duck and cover” in the event of a nuclear strike. (Statement by the President Upon Signing the Federal Civil Defense Act of 1950 1/12/1951; Lawrence 1/12/1951, pp. 7; Greenberg 2/20/2003; Henry B. Hogue and Keith Bea 6/1/2006, pp. 10 )
Iranian President Mohammad Mosaddeq moves to nationalize the Anglo-Iranian Oil Company in order to ensure that more oil profits remain in Iran. His efforts to democratize Iran had already earned him being named Time Magazine’s Man of the Year for 1951. After he nationalizes it, Mosaddeq realizes that Britain may want to overthrow his government, so he closes the British Embassy and sends all British civilians, including its intelligence operatives, out of the country. Britain finds itself with no way to stage the coup it desires, so it approaches the American intelligence community for help. Their first approach results in abject failure when Harry Truman throws the British representatives out of his office, stating that "We don’t overthrow governments; the United States has never done this before, and we’re not going to start now." After Eisenhower is elected in November 1952, the British have a much more receptive audience, and plans for overthrowing Mosaddeq are produced. The British intelligence operative who presents the idea to the Eisenhower administration later will write in his memoirs, "If I ask the Americans to overthrow Mosaddeq in order to rescue a British oil company, they are not going to respond. This is not an argument that’s going to cut much mustard in Washington. I’ve got to have a different argument.…I’m going to tell the Americans that Mosaddeq is leading Iran towards Communism." This argument wins over the Eisenhower administration, who promptly decides to organize a coup in Iran (see August 19, 1953). (Stephen Kinzer 7/29/2003)
The Justice Department appeals the ruling of the US Appeals Court in the B-29 “Banshee” case (see December 11, 1951). The appellate judges found that the executive branch of government could not unilaterally refuse to hand over classified documents requested during the course of a trial, and justify its decision merely by its own say-so (see October 12, 1950). Solicitor General Philip Perlman argues that the appellate ruling erroneously interprets the law “so as to permit encroachments by the judiciary on an area committed by the Constitution to executive discretion.” The claim of “state secrets,” “executive privilege,” and, ultimately, “national security” must trump judicial concerns, Perlman argues, and he goes on to say that the judiciary should not be allowed to “substitute its judgment for the judgment of the executive.” The case will be labeled United States of America v. Patricia Reynolds, Phyllis Brauner, and Elizabeth Palya, and will usually be shortened to the more colloquial US v. Reynolds.
The Vinson Court - In 2008, author Barry Siegel, in his book Claim of Privilege, will note that the recent ascension of Fred Vinson as the Supreme Court’s Chief Justice does not bode well for the plaintiffs in the case. President Truman placed Vinson, whom Siegel calls Truman’s “poker and drinking buddy,” as Chief Justice to try to achieve consensus between the two contentious blocs of justices on the Court. Siegel notes that Vinson is widely considered an intellectual and legal lightweight, with a tendency to take the side of the government on issues in which he lacks a full understanding. Siegel will write that in many instances, Vinson functions “as part of the executive branch.”
'Dennis' Case Preview of Court's Tendency to Favor Executive Branch - Vinson had written the opinion in a 1951 ruling, Dennis et al v. United States, where the Court had upheld a lower court ruling that twelve acknowledged American Communists were sent to jail under the Smith Act—not for breaking the law, but for “teaching and advocating,” in the words of the original indictment. Siegel will call that ruling “the nadir of the Vinson Court.” According to Siegel, the Dennis ruling showed the Court’s predisposition to give the government, and particularly the executive branch, plenty of leeway in its findings in subsequent cases such as Reynolds. (Siegel 2008, pp. 157-162)
President Harry S. Truman signs Executive Order 10346, ordering the Federal Civil Defense Administration (FCDA) to coordinate “continuity” plans within the federal government. The plans will be designed to ensure the continuation of essential government functions in the event of a major disaster, such as a nuclear attack on Washington DC. According to the order, “each Federal department and agency shall prepare plans for maintaining the continuity of its essential functions at the seat of government and elsewhere during the existence of a civil-defense emergency.” In addition to the FCDA, the National Security Resources Board (NSRB), established by the National Security of Act of 1947, (See July 26, 1947), is to play an advisory role in the emergency plans. (Executive Order 10346 4/17/1952)
The US Supreme Court rules that the federal government cannot seize the nation’s steel mills. In April, President Truman, fearing a nationwide strike that could impact the US war effort in Korea, ordered the seizure of all US steel mills; the lawsuit that resulted, Youngstown Sheet & Tube Co. v. Sawyer, quickly made its way to the Supreme Court.
Rejection of 'Inherent Powers' Claim - During oral arguments, the justices grilled Acting Attorney General Philip Perlman, demanding to know what statutes he had relied on for his arguments and asserting that the president had limitations both on his emergency wartime powers and on his ability to claim that he is the “sole judge” of the existence of, and remedies for, an emergency. The justices are not convinced by the government’s arguments for the president’s “inherent powers.” They are also troubled by repeated refusals of the government to provide facts and documentary backing for its legal arguments, and its reliance instead on claims of “national security.” The attorney for the steel industry, John Davis, quoted Thomas Jefferson in his argument: “In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.” Justice William O. Douglas noted that if the government’s claims were valid, there would be “no more need for Congress.”
Court Rejects Argument - In a 6-3 vote, the Court rules that the president has no inherent power to seize the steel mills. Writing for the majority, Justice Hugo Black states: “In the framework of our Constitution, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.… The founders of this nation entrusted the lawmaking power to the Congress alone in both good and bad times.… This is a job for the nation’s lawmakers.” In a concurring opinion, Justice Robert Jackson writes, “No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role.” In his dissent, Chief Justice Fred Vinson (see March 1952) argues that “the gravity of the emergency” overrides the Constitutional arguments accepted by the majority of the Court. “Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.” (Savage 2007, pp. 123; Siegel 2008, pp. 163-164) In 2007, reporter and author Charlie Savage will observe that the Youngstown decision “turned out to be only a pause in the movement toward an increasingly authoritarian presidency.” (Savage 2007, pp. 19)
An exhaustive study of the US’s involvement in Vietnam since 1945 is completed. The study was ordered in early 1967 by then-Defense Secretary Robert S. McNamara, partly to determine how the situation in Southeast Asia had gotten so out of hand. The study, entitled “United States-Vietnam Relations, 1945-1967,” is by the “Vietnam Study Task Force,” led by Leslie H. Gelb, the director of Policy Planning and Arms Control for International Security Affairs at the Pentagon, and comprised of 36 military personnel, historians, and defense analysts from the RAND Corporation and the Washington Institute for Defense Analysis. The study is huge, composed of 47 volumes and spanning 7,000 pages of material. It covers the time from 1945, when Vietnam was under French colonial rule, through the 1968 Tet Offensive. The study conclusively shows that each US administration, from Harry S. Truman through Lyndon B. Johnson, had knowingly and systematically deceived the American people over the US’s involvement and interventions in the region. Historian John Prados will later observe that the study, later dubbed the “Pentagon Papers” after it is leaked by RAND analyst and task force member Daniel Ellsberg (see September 29, 1969 and March 1971), represents “a body of authoritative information, of inside government deliberations that demonstrated, beyond questioning, the criticisms that antiwar activists had been making for years, not only were not wrong, but in fact, were not materially different from things that had been argued inside the US government.” (Moran 2007)
The governments of Israel and the United States are in almost-perfect accord on most issues, according to a Washington Post analysis. Israeli Prime Minister Ariel Sharon has talked repeatedly of the “special closeness” he has to the Bush administration, and of the “deep understanding” that President Bush and his officials have for Israel’s security and foreign policy needs. He has thanked Bush for providing what he calls “the required leeway in our ongoing war on terrorism” and lauded the Bush administration’s efforts to promote a peaceful settlement between Israel and the Palestinian people. Thomas Neumann, who heads the Jewish Institute for National Security Affairs (JINSA), agrees. “This is the best administration for Israel since Harry Truman,” says Neumann, equating Bush with the first American president to recognize the independent state of Israel. A senior official in the first Bush administration says that Sharon used the 9/11 attacks to cement the bond between his government and the Bush administration. One senior administration official says: “Sharon played the president like a violin: ‘I’m fighting your war, terrorism is terrorism,’ and so on. Sharon did a masterful job.”
Accord with Likud - But the US is not just in accord with Israel; it is in accord with Likud, the hardline conservative political party currently in charge of the Israeli government. The Post writes: “For the first time, a US administration and a Likud government in Israel are pursuing nearly identical policies. Earlier US administrations, from Jimmy Carter’s through Bill Clinton’s, held Likud and Sharon at arm’s length, distancing the United States from Likud’s traditionally tough approach to the Palestinians. But today, as Neumann noted, Israel and the United States share a common view on terrorism, peace with the Palestinians, war with Iraq and more. Neumann and others said this change was made possible by the terrorist attacks of Sept. 11, 2001, and their aftermath.” Bush supporters, particularly evangelical Christians, are “delight[ed]” with the administration’s overt support of Likud policies.
Abandoning Peace Talks between Israel and Palestinians - The downside, the Post notes, is that diplomacy with Israel’s Arab neighbors has come to a virtual standstill, and the Middle East “peace process” praised by Sharon is considered by many past and current US officials as a failure. Clinton administration National Security Adviser Sandy Berger says: “Every president since at least Nixon has seen the Arab-Israeli conflict as the central strategic issue in the Middle East. But this administration sees Iraq as the central challenge, and… has disengaged from any serious effort to confront the Arab-Israeli problem.” Retired Marine General Anthony Zinni, the administration’s special envoy to the region, calls the peace process “quiescent,” and adds, “I’ve kind of gone dormant.”
'Likudniks Really in Charge Now' - Bush has appointed neoconservative Elliott Abrams, a vociferous critic of any peace agreement between Israel and Palestine, the head of Mideast affairs for the National Security Council, signaling his administration’s near-total alignment with Israel in the process. Abrams’s hardline views are supported by, among others, Vice President Cheney, National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld, and Defense Policy Board chairman Richard Perle, Abrams’s mentor, who in 1996 recommended to Israel’s then-Prime Minister Benjamin Netanyahu that he abandon the Oslo peace accords and refuse to accede to Palestinian demands of “land for peace” (see September 13, 1993). A senior administration official says wryly, “The Likudniks are really in charge now,” using a Yiddish term for supporters of Sharon’s political party. “It’s a strong lineup,” says Neumann. Fellow neoconservative Meyrav Wurmser of the Hudson Institute says of Abrams: “Elliott’s appointment is a signal that the hard-liners in the administration are playing a more central role in shaping policy.… [T]he hard-liners are a very unique group. The hawks in the administration are in fact people who are the biggest advocates of democracy and freedom in the Middle East.” The Post explains that in Abrams’s and Wurmser’s view, promoting democracy in the Middle East is the best way to assure Israel’s security. Like other neoconservatives, they see the overthrow of Saddam Hussein and the establishment of a “democratic Palestine” as necessary for peace in the region. Others who disagree with the neoconservatives call them a “cabal.” The Post writes, “Members of the group do not hide their friendships and connections, or their loyalty to strong positions in support of Israel and Likud.” (Kaiser 2/9/2003)
Suzanne Spaulding, a former counsel for the CIA, the Senate and House intelligence commission, and executive director of the National Terrorism Commission from 1999 through 2000, writes an op-ed criticizing the Bush administration for its domestic surveillance program. She writes that the three main sources of oversight and restraint on Bush’s unfettered efforts to monitor US citizens—Congress, the judiciary, and the American people—have failed to halt what she calls “this extraordinary exercise of presidential power.” Spaulding, who will testify along similar lines before the Senate over a year later (see April 11, 2007), writes, “Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans’ faith in the rule of law and our system of checks and balances.” The pretense of oversight by the administration, in providing limited and perhaps misleading briefings on the program only to the so-called “Gang of Eight” Congressional leaders, is superficial and ineffective, she writes; the entire process “effectively eliminates the possibility of any careful oversight.” She notes that because of the severe restrictions both in the information doled out to these Congressional leaders, and their strict prohibition on discussing the information with anyone else, even other intelligence panel members, “[i]t is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.” Congressional oversight is key to retaining the trust of the US citizenry, she writes, and adds that that particular principle was well understood at the CIA while she was there. Oversight “is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a ‘check the box’ mentality—allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.” While those few members of Congress are given little real information, the judiciary, particularly the Foreign Intelligence Surveillance Court (FISC), is cut out of the process entirely. “Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans,” she writes. “That’s neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said? The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist’s cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.” In her piece she takes issue with the Bush administration’s insistence that its surveillance program is legal and necessary. She makes the following case:
Specious Arguments to Duck FISA Court - The argument that the FISA Court is too slow to respond to immediate needs for domestic surveillance is specious, she says. “FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.” Instead, she says that the Bush administration must have dodged FISC because their wiretaps didn’t meet FISA standards of probable cause. Since FISC is staffed by judges hand-picked by conservative then-Supreme Court Chief Justice William Rehnquist, “who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties,” and since FISC has granted all but four of the more than 5,645 requests for wiretaps and surveillance made by the administration since 2001, to argue that FISC is unresponsive is simply wrong-headed. And, she notes, if the administration felt that FISA’s standards were too strict, it could have moved to amend the law to allow more leniency in obtaining such warrants. It has not done so since the passage of the 2001 Patriot Act. She writes, “The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.”
No Justification for Keeping Program Secret - In addition, the administration has consistently failed to make a case for keeping the domestic wiretapping policy secret for four years. US-designated terrorist groups already know that the government listens to their cell phone conversations whenever possible, and they are well aware of the various publicly known programs to search through millions of electronic communications, such as the NSA’s Echelon program (see April 4, 2001). “So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations?” she asks. “Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.”
Assertions that Program Authorized by Congress Fallacious - The argument advanced by Attorney General Alberto Gonzales that says the program does not violate the law because Congress’s post-9/11 authorization of force against terrorists gives the administration the right to circumvent FISA is equally specious, she argues. “FISA does provide for criminal penalties if surveillance is conducted under color of law ‘except as authorized by statute.’ This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable? The law clearly states that the criminal wiretap statute and FISA are ‘the exclusive means by which electronic surveillance…and the interception of domestic wire, oral, and electronic communications may be conducted.’ If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.” Therefore, by any legal standard, the administration’s program is, apparently, illegal.
No Inherent Presidential Authority - The ultimate argument by Bush officials, that the president has some sort of inherent authority as commander-in-chief to authorize illegal wiretaps, is the same groundless legal argument recently used to justify the use of torture by US intelligence and law enforcement agents (see December 28, 2001). That argument was withdrawn, Spaulding notes, after it became publicly known. While the courts have not specifically ruled on this particular argument, Spaulding notes that the Supreme Court refused to recognize then-President Harry Truman’s attempt to seize control of the nation’s steel mills to avert a possible strike during the Korean War. The Supreme Court ruled “that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority—as it has in FISA—‘is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress.’” She notes that in 2004, the Supreme Court rejected the argument for unchecked presidential power in the Hamdi case (see June 28, 2004), with Justice Sandra Day O’Connor writing for the court, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. …Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Spaulding concludes, “The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O’Connor reminded us in Hamdi, ‘It is during our most challenging and uncertain moments…that we must preserve our commitment at home to the principles for which we fight abroad.’” (Spaulding 12/25/2005)
Conservative radio hosts such as Dan Caplis and “Gunny” Bob Newman use a photo of Democratic presidential candidate Barack Obama wearing traditional Kenyan robes to imply that Obama has terrorist sympathies. As reported by progressive media watchdog site Media Matters, Caplis says the photo shows Obama wearing “the same type of turban and clothing that Osama bin Laden wears,” while Newman asks, “[W]hy do you think Obama really had the photo taken, dressed up as a Somali warlord?” The photo was taken during an August 2006 visit by Obama to Kenya, where his father was born. (Media Matters 2/25/2008) It was published a few days ago by the conservative Drudge Report. According to Yusuf Garaad Omar, head of the BBC’s Somali Service, the robes are “the normal clothes that nomadic people wear. The head turban is especially used by elderly people as a suggestion of respect. It is something that has no meaning whatsoever in Somalia culture. If you see someone dressed like that in Somalia, you think it is a nomadic person—that is all. There is no religious significance to it whatsoever. It is mainly the nomadic people who use it. Some of them are religious, some are not. It is simply a tradition of the place where they are from. In this particular place, Wajir in north-east Kenya, the community is majority ethnic Somali.… This debate reminds me of people back home in Somalia, who say that women should not wear trousers, or other cultures who say men should not wear a tie. I just don’t think it makes sense.” (BBC 2/26/2008) Caplis asks his listeners why Obama would “put on similar clothing to the outfit worn by the man who personally ordered thousands of Americans, including women and kids, to be burned to death,” and says that “it would be as if [former President] John Kennedy had gone out and thrown on the fatigues and the funny baseball hat that Castro wore.” Newman, like Caplis a nationally syndicated Clear Channel talk show host, tells his audience, according to Media Matters: “We were five years into the war on terror when Obama knowingly and willingly dressed up in Somali warlord garb to have his photo taken.” He asks if Obama wore the robes “to garner support from Muslim-Americans who ideologically support Muslim terrorists?” and then asks, “Would it have been right for [former President] Harry Truman to dress up like a Nazi in 1948?” Caplis also tells his audience, “[Obama’s] middle name is Hussein, which should not be held against him for a second; his last name rhymes with Osama, which should not be held against him for a second.” (Media Matters 2/25/2008) Months later, Newman will tell his listeners that an Obama presidency will welcome “an invasion of Muslim terrorists” (see July 10, 2008).
Governor Tim Kaine (D-VA), chairman of the Democratic Party, defends his party’s difficulties in moving its health care reform proposals through Congress. Interviewed by MSNBC’s Rachel Maddow, Kaine says: “This is a heavy lift. Every president since President Truman has said, we need to find a health care future where we have a competitive insurance market and all Americans receive coverage. What we’ve seen happen in the last month or so is we now have bills that have passed through three different committees in the Senate and House. Two other committees are expected to take action very soon. We’re farther than we’ve ever been. It’s heavy lifting. It ain’t easy. We’re going to have to take the various bills and then make them into a workable plan.” Part of the reason why the legislation is moving so slowly is that Democrats are ideologically diverse, Kaine says. “[A]n awful lot of this debate is ultimately getting the Democrats to pull together and be results-focused rather than what has to be my plan or I’m not getting onboard.” The situation in the Republican Party is quite different, he continues: “What I’m looking for among Republicans is, you know, are there any Republicans who are going to stand up and say, ‘You’re right, this system needs fundamental reform and change?’ A system where 15 years ago, more than 60 percent of small businesses provided health insurance to their employees, and today, 38 percent do, and that number is dropping like a stone while the percentage of GDP that we spend on health care is going up. That system is broken. You don’t hear a single voice really among Republican leadership standing up and acknowledging that and saying we’ve got to make some changes.” (MSNBC 7/30/2009)
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