If one wants to stay abreast of the lowly depths to which blindly loyal Bush worshipers are sinking in order to defend their leader, it is always worthwhile to pay a visit to the Powerline Blog, a virtual Bush-glorifying museum which always features up-to-date exhibits of the most intellectually dishonest pro-Bush talking points.
Currently on display over there is an unbelievably vapid attempt – this one by Scott Johnson, who playfully refers to himself as Big "Trunk" -- to justify George Bush’s lawless expansion of executive power by equating it to Abraham Lincoln’s suspension of habeas corpus and other emergency measures taken to save the Union during the Civil War. Invoking the nation-threatening crises faced by Abraham Lincoln to justify George Bush’s current law-breaking is breathtaking in both its dishonesty and stupidity.
During Lincoln’s Presidency, the entire nation was engulfed in an internal, all-out war. Half of the country was fully devoted to the destruction of the other half. The existence of the nation was very much in doubt. Americans were dying violent deaths every day at a staggering rate. One million American were wounded and a half-million Americans died (a total which represented 5% of the total population), making it the deadliest war America has ever faced, by far, including all wars through the present. On multiple occasions, more than 25,000 Americans – and sometimes as many as 50,000 – were killed in battles lasting no more than three days. The scope of carnage, killing, and chaos – all within the country, on American soil – is difficult to comprehend.
Making matters worse -- much worse -- the country was only 70 years old at the time. And even before the Civil War began, America was teetering precariously from these unresolved internal conflicts. The country then was a shadow of what it is today, with a tiny faction of the strength, stability and cohesion which, 140 years later, characterize the United States.
Does it really even require any debate to see that we are many universes away from the existential, all-consuming crisis that a still-young America faced during its Civil War? Could our situation today be any more different from what it was then?
The United States today is a nation that has not had a single attack for four years. In the last ten years, it had a grand total of one attack on its soil – an attack which took place on a single day and killed roughly the same number of Americans as suicide kills every month (somehow it's perfectly acceptable to make comparisons like this to show how safe Iraq is and what a great, un-deadly war it's been, but it's horrible to use exactly the same rationale to put the threat posed by terrorism into some perspective).
The attention of Americans these days is primarily devoted to "news stories" involving pretty young girls who get abducted by teenage boys, salacious trials of pop stars, and the latest local fire. Americans spend a lot more time and energy analyzing plot mysteries on Desperate Housewives than they do discussing counter-terrorism measures. We just experienced what Amazon.com is suggesting is a record period of Christmas buying of luxury items, computer toys, and other sundry forms of light entertainment and distraction. If this is a nation at "war," it certainly is making the best of it.
To compare our current situation in America to the existence-threatening crisis of the Civil War -- and to even insinuate that the extraordinary liberty-revoking measures employed by Abraham Lincoln to save the union can be used to justify similarly extreme measures now -- is a form of delusion and/or propaganda so severe that it is difficult to describe it as anything other than deranged.
The Bush Administration has created a climate and a set of political mores pursuant to which we are all supposed to uncritically accept and robotically recite the decree that "we are at war," which, in turn, justifies all of the excesses and infringements of liberty which become more acceptable when "we are at war." The punishment for failing to blindly accept this war decree is to be branded an Al Qaeda-loving subversive who wants to coddle terrorists and give them therapy instead of helping win the glorious war we are waging.
Constitutionally, we are not at war, because Congress has not declared any such war as required by Art. I, Section 8. Nor, by any other measure, are we at war in the way we were at "war" during the Civil War, or World War I or II. We have no defined enemy, no standard for "winning," no exit goal, no battlefields. What we have is an endless conflict, against a group of individuals motivated by religious and political convictions which guarantee its hostilities towards us, but not a war.
And if that is merely a semantic distinction, if one insists that it is appropriate to call our conflict against groups like Al Qaeda a "war," this "war" could not be any more unlike what America faced during its Civil War. The word "war" has become an all-purpose political tool, to the point where it is virtually impoverished of meaning. "War" is something we wage on cancer, on poverty, on drugs, and now on "terror." "Wars" now come in the "cold" variety, the traditional form against other countries, as in Iraq, and in vague, interminable conflicts with ill-defined enemies which are capable of highly limited strikes once every few years.
But whatever else one can say about our conflict with terrorists – even if one insists on calling it a "war" -- it is nothing even remotely like the Civil War, when the existence of the nation was in doubt and the whole country engulfed by killing and anarchy. That Bush defenders now invoke the incomparably severe crisis of the Civil War -- and hail the dangerous revocations of liberty which that crisis necessitated -- gives a pretty clear idea as to how extreme their fear-driven perspective is and how radical their "pro-security" aspirations have become.
UPDATE: For a superbly analytical and well-informed discussion of the Lincoln/Bush comparison, see these posts -- here and here -- by Maha, along with her comments (and those from a couple others) in the Comments section to this post.
To compare our current situation in America to the existence-threatening crisis of the Civil War...is a form of delusion
ReplyDeleteThe comparison to the Civil War may or may not be apt, but I believe the threat to the United States today is existential. Can you convince me otherwise?
, but I believe the threat to the United States today is existential. Can you convince me otherwise?
ReplyDeleteProbably not. Proving negatives of that sort is usually an impossible task, and in particular, once someone succumbs to an irrational fear, it is an exceedingly difficult challenge to snap them back into reality.
There are lots of theoretically "existential" threats around - the polar ice caps can melt (and some say are melting) and flood our cities; a meteor can crash into the earth; a deadly and easily transmissible virus can enter the population.
We don't run around in panic mode giving up our way of life and all vestiges of freedom and privacy to safeguard against those possibilities, although we could. Why do you want to do so with respect to terrorism? Seriously - have you really become that scared?
We seem to have whittled ourselves down to two choices - we either (a) recognize terrorism as the Ultimate Evil, an existential threat which outweighs all other concerns and justifies every measure taken to fight it, or (b) we are dismissive of it and think it is no big deal and don't take it seriously.
There is a middle ground - a rational ground - where one can recognize that the threat of terrorism is a real threat that should be taken seriously without panic and without being talked into seeing it as something that is the only thing that matters -- something that drowns out every other competing consideration and justifies any and every step taken, no matter how extreme or dangerous, as long as it's done in the name of fighting this threat.
You need only prove such to me, and I am logically-minded. For example, your response assumes that my fear is irrational, and your argument proceeds on that basis. You further exacerbate matters by smoothly confusing acts of man with acts of nature, implicitly suggesting that we should turn our attention elsewhere. While there is certainly merit in such arguments, that doesn't necessarily mean we should ignore the GWOT now, does it?
ReplyDeleteI do not see that we are giving up our way of life or all vestiges of freedom and privacy by extending the Patriot Act; freedom and privacy has been much diminished since the advent of the credit report! And against the dangers you cited, personal information has very little to do with matters - save, perhaps, for the issue of who is driving a gas-guzzler and who is not.
I am logical but I do not see us "whittled down" to two choices. I think this is some error of perception on your part. Yet the "middle ground" isn't always the right choice, either. To the best of my knowledge, the Patriot Act is not being abused, and if it were, I would advocate greater spending on Inspector Generals and the like.
NO ONE is contemplating the open-ended and unlimited "something that drowns out every other competing consideration and justifies any and every step taken". So exactly who is "succumb[ing] to an irrational fear"?
To the best of my knowledge, the Patriot Act is not being abused, and if it were, I would advocate greater spending on Inspector Generals and the like.
ReplyDeleteFor 30 years, there was a law in place making it, in essence, a crime for the Government to eavesdrop on Americans without a warrant. The Administration secretly violated that law while misleading everyone into believing that they were adhering to it. When caught, they said they were only eavesdropping on Al Qaeda supporters, when in fact the program is designed to scrutinize everyone's communications. If that's not "abuse" of eavesdropping powers,, what would be?
And while I have your attention, I'm trying really hard to get Bush defenders to answer just a few quick questions. Perhaps you would be so kind as to help me out here:
(1) Would you be in favor of having the Bush Administration order the NSA to monitor all of your telephone conversations, e-mails and computer communications without a warrant or any judicial oversight, as long they committed themselves to using the information only to prevent terrorist acts and to capture terrorists?
(2) Would you be in favor of having the Bush Administration engage in random secret, warrantless searches of all houses and apartments ("sneak and peaks," where the resident is never aware of the searches) in order to find terrorist cells inside the United States?
(3) Would you be in favor of having the Bush Administration place hidden cameras in homes of people it suspects of having some contact with terrorists, either intentionally or innocently, in order to monitor the activities inside those homes, provided it promises to use such monitoring only to combat and prevent terrorism?
Glenn, allow me to just say that this is some of the best writing and analysis on the Internet. Thank you, your blog is a model of clarity and good sense in a sea of defeaning irrationality.
ReplyDeleteI am not a lawyer and cannot respond as cogently to your questions as other lawyers could, but I'm quite sure that monitoring communications to and from the U.S. is considered part of the duties of the federal government, and has been since the XYZ affair, or intercepts between American Loyalists and British Troops during the Revolutionary War. (This may fall into the category of extra-Constitutional yet binding law, like the Northwest Territories or the peace treaty ending the War of Independence.)
ReplyDeleteWhat most strikes me, however, is your refusal to argue the "existential" nature of the GWOT, and your strong preference to introduce side issues. In other words, you consider yourself to be on very weak ground here, and your arguments appear to fall down like a house of cards.
This is not a court; some things, like perfumes, quantum mechanics, and the British Constitution aren't subject to precise definition anyway and the subjective judgment of the observer must be applied.
Will creating a legalistic fog to obscure or deny the necessity of actions necessary for survival help the Republic survive? That's the issue Lincoln had to deal with, when he suspended habeus corpus as it could be reasonably assumed that Confederate sympathizers were everywhere in Maryland - they had already attacked Union troops passing through Baltimore on their way to Washington - so the U.S. capital was essentially stranded in hostile territory. Luckily for us, our situation isn't nearly that extreme.
I am not a lawyer and cannot respond as cogently to your questions as other lawyers could,
ReplyDeleteI wasn't asking those questions as a legal matter. Assume it would be legal for the Bush Administration to do those things. As a citizen, would you be in favor - as a policy matter - of the Administration taking those steps?
Luckily for us, our situation isn't nearly that extreme.
And yet there is lots of talk of getting rid of habeas corpus, putting Americans in prison with no due process (already done), and comprisons of our current situation to the one Lincoln face.
The key issue is whether or not terrorism is considered an existential threat. If so, government should be permitted the minimum necessary powers necessary to win the GWOT.
ReplyDeleteWith apologies to Cicero: Ceterum censeo red herrings esse delendam.
I would like to add that Lincoln was faced with an emergency situation (civilians shooting at soldiers in Maryland; civil authority totally breaking down in parts of Missouri and Kentucky) at a time when Congress was out of session, and it would have taken weeks to re-convene it. So he acted extraconstitutionally, but openly, and when Congress was back in session Lincoln took his case to the legislators and humbly asked them to sign off on what he had done. Unlike Bush he did not act in secret, nor did he assume an inherent authority to do whatever he pleased, Constitution be damned. He acknowledged that the authority to suspend habeas corpus rested ultimately with Congress (Article I, Section 9, Paragraph 2).
ReplyDeleteThere is also hysterical talk about comparing the USA to Nazi Germany and Bush to Hitler. I don't see any complaints of extremism with regard to those flights of liberal paranoid fantasies?
ReplyDeleteGary
Lincoln also told the supreme court chief justice to take a hike when he refused to follow an order to release a person he held as an enemy combatant or seditionist (don't remember which) because the judge opined Lincoln's actions were unconstitutional.
ReplyDeleteA general under Lincoln and the acting governor of certain territory in Ohio threw a member of Congress in jail for violating his martial law order not to make statements supporting the enemy. Naturally this representive in Congress was a democrat. Lincoln backed up the General and ultimately compromised with members of Congress' disloyal opposition by banishing the representaive to the southern confederate states. The south didn't like him much either and he had to flee to Canada, which received him with open arms and much applause no doubt.
Gary
Solomon2: What is at stake here is not a matter of a "legalistic fog." Lincoln was not facing such, either. The matter was entirely straightforward.
ReplyDeleteIn 1831, the SCOTUS ruled in favor of the Cherokee against the State of Georgia. That state's legislature had passed a law to remove white missionaries who were helping the Indians resist removal. The nation's Highest Court held that the Cherokee had the right to self-government, and that Georgia's law was unconstitutional. The state of Georgia refused to abide by the Court decision, however, and President Andrew Jackson refused to enforce the SCOTUS holding, quipping (it is said): "Justice Marshall has made his ruling, now let him enforce it." Lincoln referred approvingly to Jackson's lawlessness when refusing to enforce habeas corpus after his Supreme Court (correctly) ruled that he must. I wonder, does Power Line, in endorsing Lincoln, endorse Lincoln's endorsement of President Jackson's lawlessness?
Since the rocky and turbulent 19th century, the United States has mercifully evolved into a stable democracy ruled by law, and not men. It has done so in large part because no President since Lincoln has brazenly refused to abide by the rulings of the judiciary when it has told him no. Even Nixon disgorged the famous, and highly incriminating, tapes, when ordered to do so -- notwithstanding that he strongly felt that he held Executive privilege not to. He did not impose the rule of Nixon on the nation over the rule of law.
The rule of law is what makes the United States -- and any free nation -- stable. Assuming, arguendo, that Lincoln had an emergency sufficient to abandon the rule of law as extensively as he did, and that he was justified in following instead the law of Lincoln, do we really want to apply that standard to a totally open-ended matter like the GWOT? That, my friend, is a threat that will go on for decades. Something like it will always exist.
Indeed, threats like it existed in the 20th century, when domestic Stalinists infiltrated govt and the defense industries at the highest levels; yet the govt let some of these repulsive traitors go unprosecuted, rather than contrive extra-legal means to imprison them when the intel they had (proving guilt and great harm to our interests) could not have been admissible in a court of law.
I take the terrorist threat very seriously. But I strongly, strongly believe we let them win if we also let them undermine the sine qua non of our stability and liberty, namely, the rule of law. For that reason, I -- who voted for George Bush -- find all this sudden yammering about Lincoln in the right blogosphere deeply disturbing. I didn't vote for unlimited Executive power that reduces to lawlessness.
No red herrings, please! The New Sisyphus has a series (1, 2, 3, 4) of posts up on the legal issues at stake; it seems the arguments on President Bush's side are at least as good as those of his predecessors of the past thirty years.
ReplyDeleteP.S.: That doesn't mean I don't squirm at the injustice served upon the Cherokees; I just don't confuse apples and oranges.
"Lincoln also told the supreme court chief justice to take a hike when he refused to follow an order to release a person he held as an enemy combatant or seditionist (don't remember which) because the judge opined Lincoln's actions were unconstitutional."
ReplyDeleteI assume you refer to John Merryman, who had led a secessionist cavalry united that had burned bridges and torn down telegraph wire to prevent federalized militia from reaching Washington DC -- acts of treason, not sedition. Chief Justice Taney did judge that Lincoln had acted unconstitutionally (see my comment above) and ordered Merryman released from Fort McHenry and turned over to civilian authority. Lincoln refused, but in fact Merryman was released from Fort McHenry after seven weeks and indicted in U.S. Circuit Court.
These are complex issues, and it doesn't help when ignorant people take facts out of context.
Solomon2: The issue of Andrew Jackson refusing to enforce a SCOTUS holding, and Lincoln's having invoked Jacskon to justify his own decision that he was entitled to act lawlessly, and Bush-defending blogs pointing in turn to Lincoln, makes Jackson's original lawless policy anything but a red herring. It all comes down to the rule of law v. the rule of men.
ReplyDeleteAs for all those posts at Sisyphus, virtually all of those arguments have been discussed here already -- they are very weak. I'm reluctant to repeat points I have already made in threads below, but for example, my arch-conservative former Con Law prof, Doug Kmiec (whom I have directly quoted elsewhere here), can summon only the most tepid defense of Bush. That, notwithstanding that Kmiec is a deeply religious Republican and former member of the Reagan and Bush 41 DoJ. Kmiec ultimately suggests that Bush has relied on bad legal advice, and that his legal argument could have applied, if at all, only in the first 6-12 months after 9/11.
That has been my own assessment, and I am pleased to see it affirmed by a former professor whose intellectual integrity I always admired, even when I disagreed with him.
As for Cass Sunstein. He was a member of the Clinton Admin Executive branch. Yeah, he is a liberal the right is trotting out to defend Bush. What so many are missing is that this whole debate is not, ultimately, one of the Dems v. the GOP. I am absolutely certain that Clinton also lacks clean hands in the matter of Executive overreach, and that if a lot of the legal memoranda that he relied on were released, we'd see pro-Executive lawyers from his era (liberals or not) claiming vast Executive authority. Clinton, after all, was not exactly a model of integrity who liked to hear the word "no."
Conservative legal scholars have joined in denouncing Bush's lawlessness. They are not doing this because they hate George Bush. I don't hate him; I voted for him. But I place my citizenship above any loyalty to a politician.
Hypatia makes an excellent point on the open ended nature of this new war, an undeclared war. I will leave it to those who declaim on the existential to delineate further how that might affect our essence.
ReplyDeleteThe truth is this unlimited, ill defined "war" cannot be alloyed with the greater mettle of the American character so nobly found and delimited in the Constitution.
Nicely done here, Glenn. Cited you at Gonzo Gettysburg
Heretik,
ReplyDeleteYou are wrong this is a declared war. The AUMF *IS* a declaration of war. This issue was previously trotted out by liberals during the Korean and Vietnam wars and as even Joe Biden noted last week, the AUMF *IS* a declaration of war as far as the constitutiona and courts are concerned.
You are also wrong about the war being of indeterminate length. The war can be easily ended by Congress passing a new resolution declaring we are no longer at war and rescinding their previous AUMF. Congress could also do this by stopping funding for the war. So the war will last only so long as Congress desires not to declare it at an end. If you think they should do that, then campaign for that propasition at the ballot box.
Hypatia, your posts are always thoughtful and honest expressions in my opinion, however you are wrong to think that those who support the President's actions do so out of loyalt to the President. They are also people of integrity and honor who just happen to disagree with what are the President's lawful powers and also disagree with you and others over the compelling need for Bush to do that which he has done. They approach the issue with integrity and honesty and a desire to protect the country, just as you do.
The constitution doesn't provide that the US Supreme Court is the final arbitrator of what is constitutional. That was a pure power grab by the court in Marbury v. Madison. A power grab of far greater consequence, breadth, and depth than anything done by Jackson, Lincoln, Nixon, Clinton, or Bush. Whether they were right to make this power grab will be judged by history, but Jackson was no more compelled to abide by this power grab than is Congress to abide by every executive order. President's and congress have chosen to abide by this judicial power grab and mother of all power grabs, but there is nothing in the constitution that says they have to so do. In fact the constitution provides that Congress may determine the jurisdiction of the courts, and that seems to imply that the founders intended Congress to be king as to interpretation of the constitution and NOT the courts. At least that argument could be made.
I'm not saying I don't agree with the Supreme Court's power grab, just stating the obvious that Marbury is in fact the mother of all power grabs in the history of our nation. Vastly exceeding Jackson, Lincoln, et al.
Gary
Oh, and I'll add that no one of lessor stature than Jefferson no less lamented after the Constitution's adoption that the only thing in the constitution that concerned him was that perhaps not enough checks and balances were placed upon the Judiciary. He lamented their assumptions that the judiciary didn't need to have more checks and balances because they were expected to be inherently weak without police or military powers was incorrect. Oh how right he was.
ReplyDeleteGary
Terrorism is an "existential" threat to America? I don't think so. No truly rational being can say that all the terrorists in the world are capable, in any sense of the word, of eliminating the United States of America.
ReplyDeleteNo, the only bodies politic, corporoate and physical capable of that act are already here and in place in this country.
And GW is leading the way. Or being pushed, I can't tell which.
Jake
Gary: No less an opponent of judicial activism than Robert Bork has affirmed that Marbury v. Madison was correctly decided, and that this holding establishing judicial review is implicit in the structure of the govt of the United States. The People are not without recourse if they abhor any SCOTUS ruling; Congress may propose, and the states may ratify, amendments to the Constitution. Thus, the People still have the final word.
ReplyDeleteFurther, I do not, for one minute, believe that all these pro-Bush blogs straining to defend his lawlessness in the face of enormously important privacy interests, would be doing the same if, say, John Kerry sat in the oval office and the circumstances were otherwise identical. Do you believe it?
I can tell you, my position would be the same, and I write that as one who believes that perjury in a civil matter, commited by a sitting President, is properly an impeachable offense. But I believe that whether the perjurer is a Democrat or Republican.
I don't want to be a pest here, so I've blogged on this myself, and people can comment at my site if they wish: Holy Warrior Education & The Patriot Act
ReplyDeleteAnonymous Gary, a *Declaration* of war is a *declaration* of war, not an *authorization* for the use of military force. *Language* and *words* have *meaning.*
ReplyDeleteOf course reality is another thing. If we are inclined to look at the realities of "this" war, I suppose we could try to define what "this" war is. The GWOT? The war in Aghanistan? The war in Iraq? All three? One of each?
The war is a bastardized thing. Language is so defiled as well. If Presidents still did as Roosevelt last did and *asked* for a declaration of war, they might be more respected in their defined roles as commander in chief.
And while you are tossing the AUMF around, note that its language says it in no way supercedes but the 1973 War Powers Resolution, linked on my post, which clearly states
Sec. 4. (109) (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced-
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace of waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth-
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.
(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.
When this War on Terror will end, someone please tell me. Haven't heard an estimate on that yet. That is precisely what Bush's power grab is all about. Neither the war nor his power have any limit.
Gary, I would encourage you, and others, to take a look at IN RE ALL MATTERS SUBMITTED TO THE FOREIGN INTELLIGENCE SURVEILLANCE COURT MEMORANDUM OPINION (AS CORRECTED AND AMENDED) and signed by all 7 (since increased to 11) members of the bi-partisan FIS Court.It is long, and the part that makes my point is roughly in the middle.
ReplyDeleteTherein, the FIS Court smacks down DoJ/FBI agents who all or mostly acted during the Clinton era, and who clearly perjured themselves to be able to obtain FISA warrants from the Court. They wanted these to impermissibly use the data they then collect in criminal investigations. (FISA warrants are secured under a showing of the lower, "foreign intelligence gathering" standard of probable cause, a prosecutor's wet dream, but one the FIS Court actively seeks to thwart, as it must.) Can anyone seriously believe that Bush's data-mining projects, undertaken without oversight purportedly only for intelligence gathering, would not nevertheless be used for criminal justice purposes if no judicial oversight is involved? When even with oversight the govt (quite regardless of whether a Democrat or Republican is in the White House) will lie to the Court to be able to pursue criminal charges after having conducted searches with a FISA warrant? Conservatives are supposed to know that men are not angels, and act accordingly.
Crucial issues involving the integrity of our criminal justice system, 4th Amendment protections, and the rule of law, are at stake in this matter. One would hope that at least the lawyers and well-educated non-lawyers among us, would see this.
The people arguing so ardently for the Bush Administration's right to assume extraordinary powers don't seem to know their history so well. Doesn't matter if right-wingers or left gain power, doesn't matter how pure their original intentions were, when people wield too much power, they get all confused.
ReplyDeleteYou have to grant it to the powers-that-be, however. They've managed to gain the confidence of a group many of whom are deeply distrustful of the government generally. People who think citizens should be allowed to carry their muskets everywhere now willingly, even enthusiastically, remove their shoes and hand over their pocket knives in airports.
So let's assume that this current government is good and can be trusted not to take advantage of information they obtain through wiretaps to do anything but catch evildoers: but what is to prevent a bunch of shifty lefties from rigging the next election, seizing power, and perusing good people's emails, while using patriotic citizens' confiscated Swiss army knives to slice their vegetarian oranges?
"Half of the country was fully devoted to the destruction of the other half."
ReplyDeleteNow, which half was that?
You have to grant it to the powers-that-be, however. They've managed to gain the confidence of a group many of whom are deeply distrustful of the government generally. People who think citizens should be allowed to carry their muskets everywhere now willingly, even enthusiastically, remove their shoes and hand over their pocket knives in airports.
ReplyDeleteIt is amazing, isn't it? The people who spent the 1990s prattling on about black helicopters, Janet Reno's fascism and the tyranny of the Federal Government are now pleading with that same Federal Government to take more and more power, to force citizens to give up more and more liberties.
That's why it's so misguided to describe opposition to Bush's illegal power annexations as "liberal" - it's anything but that. "Conservatives" have long been characterized by opposition to a powerful Federal Government - it's just that some of that (but not all) quickly gave up on that "principle" as soon as they got control of that Government - suddenly, limited power didn't seem so appealing any longer.
Now, which half was that?
Both halves. I wasn't trying to take sides in the Civil War, but just wanted to make the point that each half of the country was waging full-scale war on the other half, rendering the situation then, for that reason alone, fundamentally different - and worse - than the situation now.
" The people who spent the 1990s prattling on about black helicopters, Janet Reno's fascism and the tyranny of the Federal Government..."
ReplyDeleteWhat's the old saying about being paranoid AND having "them" out to get you?
Janet Reno's orders resulted in almost 100 men, women, and children being burned alive. Can yopu point to anything anywhere nearly comparable to Waco that has happened under GWB?
Again, Janet Reno's orders resulted in the armed kidnapping of Elian Gonzalez and his forced return to a Communist dictatorship. Can you point to anything remoptely comparable under GWB? Where a child who had one parent die in the attempt to reach the freedom of the U.S. waas forcibly repatriated to a Communist country/ dictatorship?
So far I haven't seen anything factual concerning your assumptions about what GWB ordered, just hysterical charges of the Murder of the 4th Amendment.
Yet the abuses of Reno's "Justice" department are well-documented.
Who, escatly, was eavesdropped on? When? With whom were they speaking / communicating?
You seem so sure that the law was violated: let's hear some specifics, please....
Hypatia, the FISA court after having been informed about the non FISA surveillance at the inception of this surveillance sought assurances and procedures to help indicate to the court that subsequent requests for FISA warrants didn't include info from the non-FISA surveillance. Apparently the Bush administration complied with this.
ReplyDeleteI however don't agree that this procedure is required by the constitution or FISA itself. It seems to me that if the non-FISA surveillance is legal, which I fully believe it is, then any evidence turned up thereby should be perfectly allowable to obtain a later FISA warrant.
The case you cite was NOT a war time case and is distinguishable on that basis, if not others. The ruling in that case does point out some of the reasons why in 2002 the FIS Court of Review had to slap down some of these FISA court lower judges. They started screwing up beginning around 1995.
From today's Weekly Standard:
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/535efsaf.asp
The left's question persists: Why on earth-in the immediate aftermath of 9/11, when our need for meaningful signals intelligence was presumably at its zenith-would the president not have turned first, for assistance, to the Foreign Intelligence Surveillance Court?
Because that would have been insane, that's why.
Set aside, for the moment, all the broad and complicated questions of law at issue here, and consider just the factual record as it's been revealed in any number of authoritative, after--the--disaster investigations. According to the December 2002 report of the House and Senate intelligence committees' Joint Inquiry into the Terrorist Attacks of September 11, 2001, for one, the FISA system as a whole-and the FISA court in particular-went seriously off the rails sometime around 1995. A false impression began mysteriously to take hold throughout the government that the FISA statute, in combination with the Fourth Amendment, erected an almost impermeable barrier between intelligence agents and law enforcement personnel where electronic eavesdropping was concerned. And by the time, a few years later, that Osama bin Laden had finally become an official counterterrorism priority, this FISA court--enforced "wall" had already crippled the government's al Qaeda monitoring efforts.
To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.
Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.
The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.
The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.
But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.
The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.
... in late 2000, after federal prosecutors discovered a series of legally inconsequential errors and omissions in certain al Qaeda--related surveillance applications the FISA court had previously approved, the court's infamously prickly presiding judge, Royce Lamberth, appears to have had a temper tantrum ferocious enough to all but shut down the Justice Department's terrorism wiretapping program. "The consequences of the FISA Court's approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive," the Joint Inquiry explained. "Many FISA surveillances of suspected al Qaeda agents expired because [Justice officials] were not willing to apply for application renewals when they were not completely confident of their accuracy." And new applications were not forthcoming, the result being that, at least by the reckoning of one FBI manager who testified before the intelligence committees, "no FISA orders targeted against al Qaeda existed in 2001" at all. Not one.
Non--Justice intelligence agencies quailed before Judge Lamberth, too, it should be noted. The National Security Agency, for example, "began to indicate on all reports of terrorism--related information that the content could not be shared with law enforcement personnel without FISA Court approval." It used to be, not so long ago, that NSA's pre--9/11 timidity about such eavesdropping was universally considered a terrible mistake. The agency's "cautious approach to any collection of intelligence relating to
activities in the United States," the Joint Inquiry concluded, helped blind it to the nature of al Qaeda's threat. NSA "adopted a policy that avoided intercepting communications between individuals in the United States and foreign countries." What's more, NSA adopted this unfortunate policy "even though the collection of such communications is within its mission," even though "a significant portion of the communications collected by NSA" has always involved "U.S. persons or contain[ed] information about U.S. persons," and even though "the NSA and the FBI have the authority, in certain circumstances, to intercept . . . communications that have one communicant in the United States and one in a foreign country."
Attorney General Alberto Gonzales said last week that Bush authorized NSA surveillance of overseas communications by U.S.-based terror suspects because the FISA court's approval process was too cumbersome.
Gonzales and the President are both correct.
Gary
Hypatia you are wrong. The AUMF *IS* a declaration of war. The constitution does not mandate any specific language for a declaration of war and the courts have previouly held that such resolutions do constitute a declaration of war for purposes of constitutional analysis. Even Joe Biden acknowledged this last week in an interview with MSNBC's Andrea Mitchell (Hardball).
ReplyDeleteIt is a declared war and the Congress can declare its over. The congress also has the sole authority to stop spending money to maintain troops in the field or to conduct any war operations. Therefore, it is a false distortion and quite incorrect to claim this war is of indeterminate length. Congress can declare the war over tomorrow. Congress could stop funding it tomorrow. If you want Congress to take this action than persuade enough people to join you at the ballot box, but don't do an end run around the ballot box trying to have unelected judges act as dictators to the country. Now *THAT* would be a *real* and *sustantial* diminution of liberty in this country.
Gary
Oops that last post was meant for Heretik.
ReplyDeleteHypatia, so Bork a Judge and Lawyer thinks the greatest power grab of all time which just so happens to have been carried out by unelected high priests in black robes was a good and lawful thing.
Not really surprising. I'm not so sure any longer, and I think Jefferson would look at many of the decisions in the last century and this and agree with me and Jackson.
The constitution with its system of checks and balances would have certainly included more than NONE on the Supreme Court had the drafters believed Marbury was what they intended. I think they didn't think the judiciary didn't need many checks and balances because it had no way to enforce anything without the cooperation of the executive branch and/or congress.
Marbury was definitely the largest (by far) power grab of any branch of government in the history of our country.
I don't buy the constitutional amendment argument because the same argument would apply to correcting over-reaching congressional and presidential actions. Yet the drafters found it necessary to place many checks and balances on both congress and the executive branches.
It seems to me the drafters thought the Congress was the most important branch and it should be the Congress that determines what is the people's choice for constitutionality.
Gary
All this talk of laws and constitutions and declarations of war misses the point - the half of this country that never trusted Bush to begin with has even less reason to trust him now. More, some part of the country that voted against Kerry, not so much for Bush, now doesn't trust him either.
ReplyDeleteAs the pres you can have all the law on your side you can hide, but if you don't have the trust of most of the people in this country, you are just.plain.wrong.
And you don't that trust back very easy.
Bush is wrong. He isn't keeping us safe, and he isn't behaving in ways that lead people to trust him, even though he desperately wants that trust. Well, all I know is, if he really wanted it, he'd be acting very differently.
The truth is, he's unwilling to accept that he is not so much leading the country right now as trying to keep it between HIS barr ditches. Frankly, he isn't doing a very good job of it. It's about to go off the tracks.
Jake
At least one US Senator, John Warner of Virginia, does not believe that the AUMF is a declaration of war. I know because he told me this personally.
ReplyDeleteA general under Lincoln and the acting governor of certain territory in Ohio threw a member of Congress in jail for violating his martial law order not to make statements supporting the enemy. Naturally this representive in Congress was a democrat.
ReplyDeleteThere can never be a passed opportunity to smear Democrats with the "treason" brush can there? And if you can imply that the "treason" is historic, so much the better.
It's also worth noting that Lincoln thought that his general's actions were hasty and misguided and that they caused more trouble than they were worth.
The AUMF *IS* a declaration of war. The constitution does not mandate any specific language for a declaration of war and the courts have previouly held that such resolutions do constitute a declaration of war for purposes of constitutional analysis.
It is not a declaration of war. When Congress wants to declare war, it has shown itself perfectly capable of doing so:
War of 1812: "[W]ar and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland, and the dependencies thereof, and the United States of America and their territories...." 2 Stat. 755
Mexican-American War: "[B]y act of the Republic of Mexico, a state of war exists between that Government and the United States...." 9 Stat. 9
Spanish-American War: "[W]ar be, and the same is hereby, declared to exist...between the United States of America and the Kingdom of Spain." 30 Stat. 364
World War II: "[T]he state of war between the United States and the Imperial of Government of Japan...is hereby declared to exist." 55 Stat. 795
Since I don't see anything like any of the above language in the AUMF, it doesn't look like a declaration of war.
And if it were actually a declaration of war, wouldn't it mean that we couldn't do any of the things we're doing to capture Al Qaeda members such as interrogations or preventing Red Cross access at Guantanamo?
Frank,
ReplyDeletePrior Congress sessions can NOT bind future congress sessions. Therefore the particular language of a declaration of war is not set by precedent or otherwise. Only the constitution could specify what magic words if any need be said. It doesn't. WE were attacked and Congress said go get 'em. That's a declaration of war. There is no magic language required.
Joe Biden stated to the entire audience of MSNBC last week to Andrea Mitchell that the AUMF is constitutionally a declaration of war and triggers the 15 day exception under FISA following a declaration of war.
The left likes to try and pretend there is no war for many reasons: it lets them be duplicitous and try to talk yet again out of both sides of their mouths, and if they admitted we were at war they would have to open their eyes and recognize we had an enemy that was at war with us, and that would require them to pull their collective out through their sphincter muscles. They pulled the same crap in previous wars, and the courts didn't buy it then either. The AUMF is a declaration of war, plain and simple (semantic games don't count because the constitution doesn't provide for any *magic* language to be in a declaration of war.
If you don't like the fact that all the peacenik disloyal opposition were democrats during Lincoln's time don't blame me. Those are the facts. Same disloyal opposition operates in the democratic party today.
Gary
The case you cite was NOT a war time case and is distinguishable on that basis, if not others. The ruling in that case does point out some of the reasons why in 2002 the FIS Court of Review had to slap down some of these FISA court lower judges. They started screwing up beginning around 1995.
ReplyDeleteUh, Gary, it was a 2002 FIS Court Opinion (you know, a war era case) I linked to answering, among other things, Ashcroft's request to relax the ability of criminal intelligence agencies to share with foreign intelligence agencies. It was in that 2002 Opinion that the FIS Court had a fit about some 75 cases of perjury from FBI agents. The rest of your post is equally error-ridden.
So, Gary, why do you want to let the govt spy on Americans *without* judicial oversight, when even with it, it cannot be totally trusted?
Hypatia was the opinion to which you linked a FIS Court of Review Opinion (an Appellate Opinion) or a FISA trial court/District Court opinion?
ReplyDeleteThe rest of my post was quite accurate and your dismissal of same without any reasoning is beneath the quality of your usual post.
As to your final question it assumes facts and procedures not in evidence counselor. The correct question is why am I so unconcerned over the government spying on the enemy at a time of war and spying on those in the US communicating with the enemy? Not only am I not concerned about it, quite the opposite. I would be very concerned if they were NOT doing it. There power to do conduct foreign intelligence surveillance has long been established, and I find the threat to my liberty from that surveillance to be so non-existant as to be almost entirely theoretical. On the other hand I find the threat of a dictatorship of policy making unelected high priests in black robes to be much more likely to stomp on my liberty interests than the President's actions to keep terrorists from killing me, my family or other Americans. The IRS is much more likely to trample on citizen's rights without judicial oversight than is the President's search for the enemy.
The high priests in black robes have decided that the government can steal my home and *give* it to a private for profit real estate developer to whom I refused to sell. It was the typical liberal pro big government decision. Now that is a a *REAL* threat to everyone's liberty, but nary a peep from the permanently paranoid class. Marxism after all is not something of which they are afraid. Freedom scares the hell out of them, however.
Gary
Gary spews: The high priests in black robes have decided that the government can steal my home and *give* it to a private for profit real estate developer to whom I refused to sell. It was the typical liberal pro big government decision. Now that is a a *REAL* threat to everyone's liberty, but nary a peep from the permanently paranoid class. Marxism after all is not something of which they are afraid. Freedom scares the hell out of them, however.
ReplyDeleteAre you serious? The Kelo decision was roundly condemned by both the left and right blogosphere.
Hypatia, I'll give you there were plenty on the left in the real world who condemned Kelo, but the fact remains that Kelo was decided by left wing judges following left wing philosophy from one decision to the next (always favoring big government and deprecating private property rights), and that's why Justice Stevens expressed surprise at how people reacted to Kelo and that he thought it was perfectly proper.
ReplyDeleteNever mind that the left wing on the court completely stripped the words "public use" right out of the text. This is a clear example of why only original/textual interpretation is proper policy. Anything else and the constitution is a BLANK piece of paper that gets written on from time to time by 5 out of 4 unelected high priests in black robes and then toss down their edicts from their towering altar.
Gary
solomon2 wrote:
ReplyDelete"With apologies to Cicero: Ceterum censeo red herrings esse delendam."
Actually, you should apologize to Cato the Elder, for misattributing one of his best lines!
Also, since "red herrings" is plural, the feminine singular accusative form, delend-am, doesn't fit. For your future use, I would suggest:
"Ceterum censeo, red herrings esse delendos"
Or, if you want to cut right to the chase:
"Red herrings delendi sunt!"
In both cases, I'm using masculine plural endings, since the generic Latin word for smallish fish, pisciculus, is masculine.
Bruce Fein: "Mr. Bush has continued the NSA spying without congressional authorization or ratification of the earlier interceptions. (In sharp contrast, Abraham Lincoln obtained congressional ratification for the emergency measures taken in the wake of Fort Sumter, including suspending the writ of habeas corpus). "
ReplyDelete