The Party of Truman

The Bush lovers who are So Very Concerned That We Have a Healthy Two-Party System are always lamenting that Democrats are no longer the party of Harry Truman, a real patriot who was "serious" about defending America even though he wasn't even a Republican.

Here's what Truman had to say (via Dover Bitch) about dealing with the threat posed by domestic communism (a threat at least as real and "existential" as Islamic terrorism is even pursuant to the most exaggerated fears):

"Now I am going to tell you how we are not going to fight communism. We are not going to transform our fine FBI into a Gestapo secret police. That is what some people would like to do. We are not going to try to control what our people read and say and think. We are not going to turn the United States into a right-wing totalitarian country in order to deal with a left-wing totalitarian threat."

Our country has faced a long and diverse series of threats, and we have defeated them while preserving our founding Constitutional principals and basic liberties, and without bestowing the President with monarchic powers, even in times of war. Leaders who are truly strong and resolute find ways to combat those threats while still preserving the defining attributes of America which have always made it so worth fighting for.

Praising the people who attack you

One of the staple tricks of Fox News is to pair an aggressive, unapologetic Bush lover with a Bush critic who is: (a) stereotypically annoying and shrill (the Susan Estrich model) and/or (b) mousy, apologetic and obsequious. In other words, they basically repeat the Sean Hannity-Alan Colmes model over and over when booking their guests. That way the pro-Bush mouthpiece can obliterate the anti-Bush sacrificial lamb while casting the appearance of some sort of fair debate.

Along those lines, when doing a little research on the NSA issue, I came across this transcript from the December 19, 2005 Hannity & Colmes Show, which focused on the NSA surveillance issue. To argue that the Administration did nothing wrong, they had screeching loudmouth Bush loyalist Victoria Toensing. To "argue" that the Bush Administration acted illegally, they had Andrew Fois, former Deputy Assistant Attorney General in the Clinton Administration.

After Sean and Victoria spent a few minutes lamenting the al-Qaida loving treason committed by The New York Times and explaining how clear it was that Bush did nothing wrong here, Sean turned to Fois, and this is how their exchange began:

HANNITY: Andrew, the same point, this was not done in a bubble. Senator Rockefeller of the Intelligence Committee was aware of it. As I pointed out, the Foreign Intelligence Security Act court was aware of it. There's no evidence that any law was violated in any kind. It seems like, once again, the anti-Bush "New York Times" wants to create a conspiracy where there is none. Do you have any problem with what you're reading?

ANDREW FOIS, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Well, Sean, yes, I have a big problem with it. I'm much more concerned about this than Victoria Toensing is, who I have a lot of respect for. And you're a great American, but I think you're misreading the "Times" article. Very few...

HANNITY: I read it fully, all seven pages.

What possesses people like Andrew Fois to go on national television and prostrate themselves before dishonest partisan shills like Sean Hannity and Victoria Toensig by showering them with lavish praise before he even gets to a single point? People like Hannity and Toensig make a living by depicting Bush critics as traitors and cowards and terrorist-loving subversives, and so many of the people who are the target of their attacks feel compelled to praise them before defending themselves. Do you ever hear Sean Hannity or Rush Limbaugh lauding Bush critics as "great Americans" for whom they have a lot of respect?

Making matters even worse, Fois ends the segment by completely mis-stating the position of Bush critics on the NSA scandal all in order to ingratiate himself with Sean and Victoria by trying to include them and get them to laugh at his stupid joke:

HANNITY: Guys, we've got to run. Andrew, last question: Yes or no, if Usama calls, do you think, by law, that we should have to hang up, yes or no?

FOIS: Not if it means trampling on the rights of Sean Hannity and Victoria Toensing, no.

HANNITY: Wow. So you say hang up on Usama bin Laden?

COLMES: Is there any evidence that that happened, Victoria?

HANNITY: Unbelievable.

COLMES: Any evidence that that ever happened?

HANNITY: Unbelievable.

So, according to Fois, the position of Bush critics is that the Government shouldn't listen in on telephone calls between Osama bin Laden and any American citizen. That, of course, is the caricature of the position of Bush critics -- the strawman -- which Fois, in his need to be the Good Friendly Fun Liberal, allowed himself to be saddled with.

Why are so many Bush opponents so desperate to be liked by the people who spend their time on national television convincing the country that they are subversive losers and traitors?

Threatening Administration critics with criminal prosecution

Yesterday’s report that the Department of Justice has opened an investigation into the disclosure of the Administration’s illegal surveillance program should come as no surprise. Wielding threats of criminal prosecution against those who speak out against the Administration is not a new tactic.

After the first Bush Treasury Secretary, Paul O’Neill, was fired, he became the primary source for Ron Suskind’s book, The Price of Loyalty, which was sharply critical of the Administration, revealing, among other things, that Bush had been pining for a war to oust Saddam since well before 9/11 ("from the very beginning"), and depicting Bush as a highly disengaged Chief Executive.

Within twenty-four hours, literally, the media was full of leaked stories claiming that O’Neill had violated laws and regulations governing the use of classified information, darkly suggesting that he had broken the law by giving certain documents to Suskind which were classified and that he was under investigation for possible crimes:

The Treasury Department said Monday it is looking into how a government document from the very early days of the Bush administration -- marked "secret" and outlining plans for a post-Saddam Iraq -- became part of a CBS "60 Minutes" broadcast Sunday night. . . .

Ousted Treasury Secretary Paul O'Neill, now an outspoken critic of the Bush administration, was a guest on the program, along with Ron Suskind, the author of a book for which O'Neill was the primary source.

O'Neill said on the program that the administration was preparing plans to move against Iraq "from the very beginning." The request for the investigation
came as O'Neill's comments critical of the Bush administration sparked a fury of controversy in Washington. O'Neill clashed with the president on deficit spending and tax cuts, which ultimately led to O'Neill's departure. . .

Asked if seeking the probe may look vindictive, [Treasury Department Spokesman Rob] Nichols said, "We don't view it in that way," according to Reuters news
agency.

Then, as now, the President’s followers raised the specter of criminal prosecution in the wake of damaging criticism of the President. The Washington Times led the charge:

The Treasury Department yesterday alerted its inspector general's office that a classified document was displayed by CBS News during the network's Sunday night interview with former Treasury Secretary Paul O'Neill. . . . Federal law prohibits the release of classified material that endangers U.S. national security.

A couple of months later, once the furor over O’Neill’s allegations had died down, the Treasury Department’s Inspector General quietly acknowledged that O’Neill did nothing wrong and no laws had been violated:

The report yesterday from Jeffrey Rush Jr. said no federal laws had been violated in the release of the documents but that Treasury needed to improve the way it handled sensitive documents.

Since then, it has become commonplace for the Administration and its supporters to use the threat of criminal prosecution against Administration critics. Recently, for instance, there were widespread calls, led by William Bennett, demanding a criminal investigation of Sen. Jay Rockefeller for stating his belief to foreign leaders that the invasion of Iraq was a fait accompli as early as January, 2002.

And when Democratic Senators objected to the cost of what they believed was the highly wasteful, multi-billion dollar "black ops" satellites program, the Administration disseminated leaked (and inaccurate) reports that the DoJ had begun a criminal investigation into Senators Rockefeller, Durbin and Wyden based on claims that they leaked classified information about the program when describing their opposition to it. And then there was the recent effort to accuse Sen. Harry Reid of engaging in criminal misconduct by commenting on whether Osama bin-Laden may be dead.

Unlike Britain, which has an Official States Secret Act making it a crime to disclose any classified information regardless of intent or harm, the United States has no such law, precisely because leaks are a time-honored and long-recognized vital tool for exposing and thereby deterring government wrongdoing. As Morton Halperin explained:

[G]eneral espionage statutes were not intended to be used to cover disclosures to the press and, if they were, this would do great harm. Congress recognized that there was massive over-classification of national defense information and that a statute that classified all such information would prevent the Congress and the public from gaining the information it needed to challenge government policies.

For exactly that reason, President Clinton vetoed legislation in 1995 which would have made it a felony to disclose any classified information, even though such a law would have obviously benefitted the Clinton Administration by preventing leaks which were embarrassing or damaging to his Administration:

President Clinton on Saturday vetoed a bill that would have criminalized the leaking of government secrets. The legislation, he said, might "chill legitimate activities that are at the heart of a democracy.''

The proposal had drawn criticism from news organizations which said it would stifle their ability to obtain information vital to the public."We must never forget that the free flow of information is essential to a democratic society,'' Clinton said in a statement. . . . .

"A desire to avoid the risk that their good faith choice of words -- their exercise of judgment -- could become the subject of a criminal referral for prosecution might discourage government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities,'' Clinton said. . . .

"Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive,'' he said.

"In such circumstances, this criminal provision would, in my view, create an undue chilling effect,'' Clinton said.

The "free flow of information" is exactly what the Bush Administration wants to prevent. In fact, it has taken to routinely wielding the threat of criminal prosecution against individuals who disclose information not which harms the national security interests of the United States, but which harms the political interests of the Administration.

The most preposterous claim from the moment the Times disclosed the NSA's eavesdropping outside of FISA is that the disclosure of the program endangered national security and helped al-Qaida. Such a claim is nothing short of farcical, since what was revealed was not our intelligence-gathering methods, but the fact that those methods were being implemented in violation of the law rather than in compliance with it. The only thing that was "damaged" as a result of this disclosure was the political interests of George Bush, whose deliberate and ongoing law-breaking stood revealed for the world to see.

In this regard, it is worth noting that the President does not have unfettered authority to declare any information he wants as classified. To the contrary, Section 1.8 of the still binding 1995 Executive Order governing the classification process specifically prohibits classifying information in order to conceal governmental wrongdoing:

(a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

Information conveying the methods we use for engaging in surveillance of terrorists is plainly classified and ought to be. The fact that the President has ordered that the law be violated when engaging in surveillance plainly is not. And it was the illegality of the NSA's program, not the substance of its intelligence-gathering methods, which was disclosed here.

Supporters of the Bush Administration have, for some time now, been calling for the prosecution of its political opponents on these grounds. The Administration has itself used precisely such threats in the past against its critics, and the DoJ investigation into the whistleblowers who exposed the illegal NSA surveillance program (rather than the political officials who illegally ordered it) is simply the latest step towards intimidating and silencing Administration critics and whistleblowers with the threat of criminal prosecution.

Finally punishing the wrongdoers in the NSA scandal (updated)

The Justice Department is finally moving to investigate the criminals responsible for the NSA illegal eavesdropping scandal . . . . not the people who engaged in the illegal conduct, but the real criminals -- the ones who brought the illegal behavior to light. The New York Sun, appropriately enough, has the leaked scoop:

The Justice Department has opened an investigation into the leak of classified information about President Bush's secret domestic spying program, Justice officials said Friday.

The officials, who requested anonymity because of the sensitivity of the probe, said the inquiry will focus on disclosures to The New York Times about warrantless surveillance conducted by the National Security Agency since the Sept. 11 terrorist attacks.

We already have nice legal theories in place designed to allow the President to violate the law with impunity. But the good thing about this investigation is that it will deter anyone else in the Government from exposing illegal action on the part of the Bush Administration, and if that doesn't work, it will make newspapers too afraid to publish such stories -- exactly the way the New York Times was bullied into sitting on this story for a full year.

Sure, even if illegal conduct gets exposed, nothing will happen because the President has the constitutional authority to violate the law during war. Everyone knows that. But when it comes to arrogating unto yourself the right to break the law, one can never have too many safeguards.

Whoever is responsible for this leak has done grave and incalculable damage to national security, because nobody knew until the Times disclosed this story that we were eavesdropping on terrorists. That came as a great shock to both us and to the terrorists. And the fact that the Administration was eavesdropping without warrants in violation of FISA (as opposed to with warrants in compliance with FISA) has done wonders for enabling the terrorists to adjust their methods. The NYT's disclosure of this story has made it painfully obvious on which side of the war on terror is the Times, sitting as it is smack dab in the middle of Times Square and therefore hoping upon hope to make it easier for the terrorists to successfully engage in attacks against America.

If there is one important principle on which the preservation of liberty in this country depends, it is that people at the highest levels of Government who deliberately break the law have every right to do so, whereas those who prevent the ongoing concealment of that illegal behavior and the newspapers which report on it must be punished to the fullest extent of the law. And we all know what that means.

UPDATE: Lest there be any confusion about the true purpose of this "investigation," the always angry Rocket -- in a post entitled "Throw 'em in the Slammer" -- clears it all up:

The Justice Department has launched a criminal investigation of the leaks to the New York Times regarding the NSA's anti-terror programs. Great news. This makes two; the leaked story about secret detention facilities in Europe is also under investigation. I doubt that anything short of the sight of bureaucrats doing jail time will slow down the torrent of illegal leaks from the federal agencies, so let's get on with it.

All government employees need to learn to keep their mouths shut when they see illegality in the Bush Administration, and nothing will "encourage" (in a Sopranos sort of way) would-be whisteblowers to keep quiet more than seeing the NSA whistleblowers hauled off to prison, while those responsible for the illegal eavesdropping remain free.

Sam Alito and Deference to Executive Power

The Anonymous Liberal has an excellent post up documenting the efforts by the Bush Administration to pack the Supreme Court not with conservatives on social issues (about which Bush seems to care very little), but instead, with those who believe in virtually absolute judicial deference to Executive Power (about which Bush cares very much). And the importance of this issue in the upcoming Supreme Court confirmation hearings of Samuel Alito is self-evident:

Following 9/11, the Bush administration repeatedly pushed the envelope of executive power, and may well have crossed a number of lines. In the months and years to come, the legality of these decisions will be adjudicated in the federal courts. Bush knows that his legacy will, in large part, be measured by whether his decisions are vindicated or condemned as executive overreaching. Bush does have a litmus test for judicial nominees, and it has nothing to do with abortion.

Bush's Supreme Court (and lower court) nominees are characterized by their slavish, uncritical deference to assertions of power by the Executive Branch, especially in times of ostensible "war." Indeed, as AL points out, now-Supreme Court Chief Justice John Roberts was selected by the White House to be the Supreme Court nominee while he was in the middle of hearing arguments in the case of Hamdan v. Rumsfeld (.pdf), in which Roberts decided in favor of the Administration's position and allowed the use of "military tribunals" at Guantanamo.

In opposing Roberts' nomination, the People for the American Way emphasized Roberts' deference to executive power at least as much as his restrictive view of privacy rights:

In his limited time as a federal appeals court judge, Roberts has shown enormous deference to the executive branch, with a broad and expansive view of presidential power that threatens the system of checks and balances.

When it comes to worshiping at the altar of unchecked executive power, Sam Alito is even more zealous than Roberts. Even conservative Bush ally and Roberts admirer Norm Ornstein of the American Enterprise Institute has warned that Alito is far more deferential to Executive power than Roberts is. As Steve Clemons of The Washington Note put it: Ornstein's Op-Ed shows that Alito "is a spear-carrier for expansive Executive Branch authority and looks at both Congress and the Judiciary as junior players in government."

Whereas Roberts replaced Executive Branch defender William Rehnquist, Alito is nominated to replace the much more Executive-scrutinizing Sandra Day O'Connor, which will alter the balance of the Court fundamentally, and certainly with regard to issues of Executive branch power.

It is therefore not hyperbole to warn that Alito's ascension to the Court could very well mean the disappearance of the last chance for some limitation to be placed on the dangerous powers which the Bush Administration is claiming for itself. Particularly now that Bush's Yoo Theory of Unlimited Executive Power is being extended literally to encompass the Executive power of law-breaking, it is difficult to imagine anything more important at stake in Alito's hearings.

AL quotes an article by Slate's Dahila Lithwick concerning exactly what is stake in the Alito nomination hearings. The article was written prior to the NSA eavesdropping revelations but has obvious applicability to it:

I think we will, all of us, be very sorry. Not just the edgy civil libertarians or the ACLU types, and not just Jose Padilla, or his attorneys, but everyone who believes there is a place for therule of law even in the midst of a war, especially when that war threatens to go on forever.

It's hard to imagine a worse combination than an Administration which claims the right to unlimited "wartime" power (including law-breaking) and a Supreme Court comprised of a majority which subscribes to John Yoo's authoritarian theories of presidential powers. But if Sam Alito takes Justice O'Connor's seat on the Supreme Court, that's exactly what we're going to have.

Bush supporters just want to help

The spirit of Christmas places an emphasis on good will, kindness and charity to others. And one can't help but notice that this spirit is changing the acrimonious nature of our domestic political debates, at least for the moment. For the holiday season, Bush defenders have placed a temporary moratorium on their patriotic campaign to depict Bush critics as terrorist-loving subversive cowards who hate America and want it to lose. In its place, Bush supporters are engaging in acts of great charity towards Bush critics by trying to show them the error of their ways, in order to help them do better.

You see, Bush supporters want Bush critics to do better. They wish that Bush critics would stop it with all of these self-destructive, deranged ideas (defined as criticisms of George Bush’s foreign policies and terrorism-related domestic policies) because the country needs a healthy two-party system. But what we have now is one healthy party and one filled with traitors and crazies. And Bush defenders want to help. They really do. Because America would be so much better off if we had serious, responsible, successful opposition to George Bush rather than the subversive, demented insanity which we have now.

And how to accomplish this? How can Bush opponents improve themselves? These wise and caring Bush supporters have the secret, and, in an act of great kindness, they have decided to share it:

Give up criticisms of George Bush’s foreign policy. Just stop objecting to what he is doing and start consenting to his foreign policy agenda and all of his policies which are justified in the name of terrorism. To succeed, Bush opponents must be like Joe Lieberman, one of the few responsible, serious Democrats to discover the secret to success: agree with everything the President is doing, praise him as obsequiously and reverently as possible, and stand proudly behind him. If only Bush critics would do that, things would be so much better for everyone – especially for Bush critics.

The always kind Bill Kristol, for instance, took the opportunity this week to say that he wishes so very much that Bush critics would see the error of their ways and become a responsible and serious opposition force -- by no longer opposing what Bush does and no longer objecting to his law-breaking:

Was the president to ignore the evident fact that FISA's procedures and strictures were simply incompatible with dealing with the al Qaeda threat in an expeditious manner? Was the president to ignore the obvious incapacity of any court, operating under any intelligible legal standard, to judge surveillance decisions involving the sweeping of massive numbers of cell phones and emails by high--speed computers in order even to know where to focus resources? Was the president, in the wake of 9/11, and with the threat of imminent new attacks, really supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA, if it could even be fixed? The questions answer themselves . . . .

What is one to say about these media--Democratic spokesmen for contemporary American liberalism? That they have embarrassed and discredited themselves. That they cannot be taken seriously as critics. It would be good to have a responsible opposition party in the United States today. It would be good to have a serious mainstream media. Too bad we have neither.

Obviously moved by this spirt of generosity, the typically combative and rambunctious Bush-loving tough-guy, Ace of Spades, discarded his rough facade to expose his sensitive, caring side by revealing that all he really wants for Bush opponents is for them to do better:

After the 2002 midterms -- sheesh, that seems like it was almost three years ago or something -- William Kristol offered his opinion that the Democrats had, basically, gone crazy. Hatred of Bush and frustration at being frozen out of power had simply driven them batty.

It's stuff like this -- sort of predictable, you know, that Americans aren't going to sweat eavesdropping on terrorists without warrant -- that really bears Kristol out. Time and time again, the Democrats have had the opportunity to be statesmanlike, prudent, wise, and, as an added bonus, on the safe side of issues in political terms.

Time and time again they have rejected this opportunity in favor of opportunistic shrillness. Although I suppose the "opportunistic" part may not be correct, given the fact that they consistently seem to take the wrong side of the issue in terms of popular politics.

The Internet has not been kind to Democrats. Sure, the dextrosphere is knocking down their liberal spirit squad in the MSM, but that's small potatoes compared to what the sinestrosphere is doing to them. The scary-smart advice of Kos and Atrios -- "fight, fight, fight-- fight on big issues, fight on small issues, fight on trivial issues, fight when right, but especially, at all costs, fight when you're wrong, just to thwart Bush" -- is really not working out so well for them, is it?

Also joining in this charitable Save the Democrats campaign is the acid-tongued Anchoress, who, triggered by her belief that Americans don't care if Bush breaks the law, sincerely laments what Bush opponents are doing to themselves and offers a little holiday prayer that they will come to their senses -- for their own good:

Smart Democrats might finally start denouncing the Times’ disclosure of classified information. They might vote to put the Patriot Act back in place. It’s pretty clear -to me, at least - that my neighbor is not an anomaly.

It occurs to me that over a year ago I was writing about Democrats and the NY Times seeming to be spinning out of control - it’s only gotten worse. It makes me very sad. We need a healthy two-party system, not this madness.

And here is the considerate and caring Stanley Kurtz, offering his helping hand in The Corner:

The Democrats will never shake this image of weakness. It’s set in stone, and for exactly the right reason: the Democrats really are weak on national security issues. Everyone knows that the party’s base is pacifist. They want the war on terror to just disappear so that attention will turn back to domestic issues. Ironically, had the Democrats embraced Lieberman’s policies, we would probably be focused on domestic issues right now. Consensus on foreign policy would force politics back to the areas where the Democrats believe they are strong. It’s the smartest strategy for the Dems, but they can’t pull it off because their base really is caught up in the Vietnam syndrome.

And Kurtz again, graciously warning the Democrats about the trouble they are making for themselves by failing to embrace the noble example of Very Good Boy Joe Lieberman:

So much for the bad news. How about the good news? Well, it seems to me that the Democrats are in some serious long-term political trouble. It's too late for Peter Beinart to restore the Democrats' "fighting faith." Instead of purging MoveOn.org, the Democrats are busy purging Joe Lieberman. I can't believe anyone thinks that reports of secret sniffing for nuclear bombs will do anything but help the president.

And finally, we have Hugh Hewitt and Glenn Reynolds, speaking from their summit and sharing paternalistic and solemn disappointment in Bush opponents due to their failure this year to become more "responsible," a failure which Reynolds sadly laments is going to hurt them so very much:

HH: How about the left side of the blogosphere this year, when it comes to politics? Has it grown wilder, or more responsible, Glenn Reynolds?

GR: Mostly wilder. It's been interesting. Back before the 2004 election, Henry Copeland, who runs the Blogads network, and who is a really smart guy, said to me that if Bush loses, your blog traffic will more than quadruple in the coming year. But you probably won't enjoy the sentiments that are unleashed. And of course, Bush won, and I think you've seen that happen to the left side of the blogosphere. Some of the lefty blogs have really grown in traffic, but it's mostly pretty angry traffic. It's Sith traffic. It's dark side traffic. There's a lot of anger there. And while I've been encouraged to see a few relatively moderate and sensible comments from the likes of Markos Zuniga of the Daily Kos, overall, I think that the lefty blogosphere has been sort of an anger focusing echo chamber that's probably bad for the Democrats, if they want to win.

I hope Bush critics are appropriately thankful for this advice, which is dispensed with the purest of motives by people who want nothing but the best for you. They have the secret for how you can put an end to your sufferings and failures and miseries and they have taken the time to let you in on it. All you have to do is think and act more like them – and stop criticizing George Bush.

This is all based on illusion. Quite obviously, Bush supporters have come to think of the 2000 and 2004 elections as repeats of the 1972 and 1984 elections, where Richard Nixon and Ronald Reagan, respectively, slaughtered George McGovern and Walter Mondale in smashing landslides. They seem to have convinced themselves that Bush won similar landslides against Al Gore and John Kerry, and that this is conclusive proof that lopsided majorities are in agreement with George Bush’s foreign policy actions, such that anyone who criticizes those actions must have an electoral death wish. Many Democrats have internalized this same set of premises.

But it’s all pure fiction. Despite running against two incredibly poor and stiff campaigners, George Bush tied in 2000 and barely won in 2004. And public opinion polls conclusively show that a solid majority of Americans oppose the crowning jewel of Bush’s foreign policy – our invasion and occupation of Iraq. And as the instinctive support for the President generated by the shock of 9/11 fades into the past, more and more Americas have lost faith in Bush’s foreign policy approach and even in his anti-terrorist policies.

Far from there being some sort of broad, mainstream consensus that George Bush is right on foreign policy, there is a serious divide on that issue. And the trend is for more and more people to migrate from support for George Bush’s policies to opposition to them. Both substantively and strategically, then, this would be the worst possible time for Bush critics to follow the advice of Bush lovers by softening even further their opposition to Bush’s policies and behavior, or even worse, to cynically support them.

A real opposition party opposes the majority party with clearly articulated principles. Most importantly, it serves as an aggressive watchdog against the abuse of power by the party in control -- power which the Founders, and countless political philosophers, understood has the inherent tendency to corrupt. This preening concern for a vibrant opposition party that we are hearing from Bush lovers – which they tell us can be achieved only by giving up all but the pettiest and most inconsequential vestiges of opposition to George Bush – can be easily recognized as the self-serving farce that it is. A true two-party system and a meaningful opposition party requires real opposition, and most of all, it requires a steadfast vigilance against corruption by the party in control.

To insist that the opposition party must relinquish and abdicate its watchdog responsibility is to turn the opposition party into an empty, impotent gesture – a worthless symbol – that props up the false appearance of opposition to the President, but which is devoid of any actual substance or force. That's the America of 2002 -- their time of unchallenged glory -- and they are clamoring for a return to it.

Despite the lovely holiday hands of help being extended by Bush supporters, that is the real objective – to convince Bush critics that their only hope for salvation lies in following the example of Joe Lieberman by just accepting the rightness of George Bush and falling into line behind him. It may sound like slavish passivity and defeat, but they are here to tell us that it’s really for everyone’s own good.

Fear as the driving political belief

The NSA eavesdropping scandal is rendering more vivid than ever the central role which fear plays in driving many people to support the whole range of George Bush’s policies that are justified in the name of fighting terrorists. At bottom, so many of the public policy debates we are having end up at that destination, where this one simple though incomparably potent emotion -- fear -- stands revealed as the true engine driving support for the Bush world-view.

When all else fails, what we end up hearing from Bush supporters, usually in quite strained and urgent tones, is that we have no real choice but to consent to the latest item of controversy on the Bush agenda (which now even includes allowing the President to break the law when he decides that our protection requires that), because if we do not, we will all die violent and horrible deaths at the hands of the powerful Islamic terrorists. Our very survival is at risk -- the people who want to kill us all are coming -- and given our dire state, anything and everything is justified to stop them.

There have been two excellent posts on this subject recently -- one by Maha and then one by Digby -- and I posted my own views on this and related topics here and here. Now, researchers in the Social Psychology program at Rutgers University-New Brunswick are offering some empirical evidence which demonstrates the critical role which fear plays in driving people to support George Bush. These social scientists are reporting on their findings from a study which sought to measure the impact which fear had on voting choices in the 2004 election:

Their findings demonstrated that registered voters in a psychologically benign state of mind preferred Senator Kerry to President Bush, but Bush was more popular than Kerry after voters received a subtle reminder of death. Citing an Osama bin Laden tape that surfaced a few days before the election, among other factors, the authors state, "the present study adds convergent support to the idea that George W. Bush's victory in the 2004 presidential election was facilitated by Americans' nonconscious concerns about death…" The authors believe that people were scared into voting for Bush.

More than 130 registered voters participated in the study. Split into two groups, the first group was asked to write down a description of their emotions regarding the
thought of their own death and, as specifically as possible, write down what will physically happen when they die and after they are dead. The second group responded to parallel questions regarding watching television. Within the first group 32 responded that they would vote for Bush and 14 opted for Kerry. In the second group, the decision was reversed as 34 selected Kerry and 8 selected Bush.

The full article itself is behind a subscription firewall. I have e-mailed the editors of the journal to request a copy of the article and will elaborate on the study if I receive it. I find this study far from dispositive, to put it mildly, and, as is usually the case with endeavors of this sort, my guess is that the structure of the study was influenced by lots of preconceived beliefs on the part of the researchers with regard to the subject they were studying.

Nonetheless, its conclusions are consistent with what is quite apparent to the naked eye: a large segment of Americans have had instilled into them a deep-seated fear of terrorism which is the predominant factor in how they form their political views. Does anyone doubt a correlation between the quantity of fear as an emotion and the likelihood they will support George Bush -- that the more someone lives in emotional fear of an Islamic terrorist attack, the more likely it is that they are a Bush voter?

It is not difficult to find the source of these fears. Here is George Bush in a randomly selected and quite typical speech delivered on October 6, 2005, doing everything he can to inflame those fears in order to bolster support for our occupation of Iraq:

We know the vision of the radicals because they've openly stated it -- in videos, and audiotapes, and letters, and declarations, and websites. . . . Their tactic to meet this goal has been consistent for a quarter-century: They hit us, and expect us to run. They want us to repeat the sad history of Beirut in 1983, and Mogadishu in 1993 -- only this time on a larger scale, with greater consequences.

"The militants believe that controlling one country will rally the Muslim masses, enabling them to overthrow all moderate governments in the region, and establish a radical Islamic empire that spans from Spain to Indonesia. With greater economic and military and political power, the terrorists would be able to advance their stated agenda: to develop weapons of mass destruction, to destroy Israel, to intimidate Europe, to assault the American people, and to blackmail our government into isolation."

"Our enemy is utterly committed. As Zarqawi has vowed, 'We will either achieve victory over the human race or we will pass to the eternal life.' And the civilized world knows very well that other fanatics in history, from Hitler to Stalin to Pol Pot, consumed whole nations in war and genocide before leaving the stage of history."

The murderous ideology of the Islamic radicals is the great challenge of our new century. Yet, in many ways, this fight resembles the struggle against communism in the last century. . . .

With the rise of a deadly enemy and the unfolding of a global ideological struggle, our time in history will be remembered for new challenges and unprecedented dangers.

Islamic terrorists here, as always, are depicted as omnipotent villains with quite attainable dreams of world domination, genocide, and the obliteration of the United States. They are trying to take over the world and murder us all. And this is not merely a threat we face. It is much more than that. It is the predominant issue facing the United States -- more important than all others. Everything pales in comparison to fighting off this danger. We face not mere danger, but "unprecedented danger" -- the worst, scariest, most threatening danger ever.

And literally for four years, this is what Americans have heard over and over and over from their Government – that we face a mortal and incomparably powerful enemy on the precipice of destroying us, and only the most extreme measures taken by our Government can save us. We are a nation engaged in a War of Civilizations whose very existence is in imminent jeopardy. All of those plans for the future, dreams for your children, career aspirations, life goals – it’s all for naught unless, first and foremost, we stand behind George Bush as he protects us and defeats this enemy.

There is virtually no policy incapable of being justified with this fear. It is an all-purpose tool. We have to invade and occupy Iraq because the terrorists will kill us all if we don’t. We have to allow the Government to incarcerate American citizens without due process, employ torture as a state-sanctioned weapon, and even allow the Administration to violate the law, because the terrorists will kill us all if we don’t. It is the one and only argument which enables the Bush Administration to win again and again. The more afraid of terrorists people are, the more likely they are to support the Bush world-view. And another terrorist attack on U.S. soil, which is certainly likely, is sure to ramp up that dynamic -- both the fear itself and the policies it enables -- by several orders of magnitude.

Acknowledging a threat, even a serious threat, and taking steps to address it, does not require fear. But what does require fear is an agenda which demands that blind faith be placed by the citizenry in the power of the Government in exchange for being protected by it. And it is that fear, inflamed more and more every day, which is now driving America’s political choices.

Public opinion & Presidential law-breaking -- A few facts

One of the most absurdly formulated polls ever was released yesterday by Rasmussen Reports, and it purported to find that 64% "believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States." Without realizing the obvious flaw or realizing it but not caring, Bush defenders have jumped on this poll like a pack of dogs in heat, declaring that we should just immediately forget about this whole NSA law-breaking thing because it’s obviously not a popular scandal.

Many have already noted the rather fundamental and painfully obvious flaw in the poll: it doesn’t ask whether people support eavesdropping in violation of the law and/or without obtaining search warrants from a court, which happens to be what the scandal is about. As everyone knows by now (except for the Rasmussen pollsters), the scandal is not about whether the Administration should be eavesdropping in order to fight terrorism but about whether the Administration has the right to violate criminal laws by eavesdropping on American citizens without the warrants required by law. Aren’t we well passed the point where it is necessary to point out that distinction?

But beyond this specific, truly useless poll, there are several things worth noting about public opinion polls generally as they concern this scandal:

(1) It is quite amazing to watch these Bush defenders -- who relentlessly slogged on with Bill Clinton’s sex scandal impeachment in the face of immovable public opinion polls consistently showing strong pro-Clinton and anti-impeachment sentiments, but who piously told us again and again how polling doesn’t matter when it comes to the solemn duty to uphold the rule of law – now seize the very first public opinion poll they can get their hands on and parade around with it like celebrating munchkins declaring that the wicked scandal is dead. One Bush-defending celebrant even told us, with no apparent irony at all, that “a scandal without a scandalized public is pretty hard to pursue to impeachment.”

Is there some sort of new medication or surgical procedure which enables Bush defenders to simply forget everything they said, every "principle" they touted, during the eight years of the Clinton Presidency?

(2) There is a lot of talk about the proper oppositional role which a minority party ought to play, and there has been much debate within the Democratic Party specifically about whether a more aggressive posture is appropriate in opposing the Administration's actions.

Regardless of one's stance on those issues generally, surely everyone can agree that the Democratic Party must aggressively -- very aggressively -- pursue this Presidential law-breaking no matter what public opinion surveys show in the first instance, and even what they show thereafter. If the Democratic Party is going to meekly crawl away with a few peeps of impotent protest now that it has been revealed that George Bush has been deliberately and breezily violating laws enacted by Congress – and now that Bush himself has defiantly proclaimed his intent to continue to violate the law – what really would be the point of having an opposition party?

It cannot matter what public opinion polls show, particularly in these initial stages. The President violated the law. Repeatedly and deliberately. And he has vowed to continue to do so. The harm from allowing him to do so with impunity would be incalculable on almost every level. And if Democrats crawl away from this fight because of fear of polling data or a desire to appear “serious” as the Bill Kristol’s of the world manipulatively define that term, such a dereliction of duty will only bolster – and quite justifiably so – the devastatingly harmful image of Democrats as a weak-willed and spineless party with no courage and no soul.

(3) Scandals do not instantaneously change public opinion – almost ever. Perceptions of George Bush have been solidified after 5 years in office and two national elections, and they don’t just magically transform overnight because of a single New York Times article, the ramifications of which have yet to be fully explained to the public.

This scandal is a full two weeks old. Most of the relevant facts are still to be revealed. We know only bits and pieces – we only know those very limited facts which the Times scraped up enough courage to print, along with "facts" which have been leaked by the Administration. We are at the very beginning of this scandal, not in the middle or at the end. Any talk of “public opinion” regarding the illegal eavesdropping -- as though such opinion is dispositive or unmoveable – is absurd.

Watergate unfolded over the course of three years. Richard Nixon was re-elected with an overwhelming landslide in the middle of the scandal. It is highly instructive to recall the evolution of public opinion with regard to this Mother of all Presidential Law-breaking Scandals:

[I]t is worth remembering that Watergate, as a case against a presidency, was not built in a day, and the decision of most Americans to abandon their support of Nixon was not made overnight.

Shafts of light fell on Nixon's dark side in June 1972, when burglars were caught bugging the Democratic National Committee headquarters in the Watergate hotel-office complex. The few newspeople who went after the story began piecing it together that summer and fall: the program of dirty tricks and the illegal cash financing, the efforts to silence potential witnesses and shield the president.

While the revelations accumulated, the rest of the country tuned out. That November, Nixon carried 49 states in winning re-election. More than two months later, as the first Watergate defendants were going to court in January 1973, Nixon's numbers in the Gallup Poll were among the most robust of his presidency: 68 percent approval to 25 percent disapproval (a near match with Clinton's figures for late January 1998).

Of course, that was before Nixon began talking about invoking executive privilege to prevent White House aides from testifying about an alleged cover-up. When that key phrase, "executive privilege," became part of the discussion, Nixon's numbers started their descent.

In February, the Senate voted 70-0 to empanel an investigating committee of its own. Nixon's approval rating in the first week of April stood at 54 percent in the Gallup Poll. Most Americans were still withholding judgment.

Even after the April 30 speech in which Nixon announced the resignation of his closest aides, many Republicans continued to rally around the president. The Senate Republican leader, Hugh C. Scott of Pennsylvania, said the speech had proved that the president was "determined to see this affair thoroughly cleaned up." The governor of California, Ronald Reagan, said the Watergate bugging had been illegal but that "criminal" was too harsh a term because the convicted burglars were "not criminals at heart."

That same month, Republican state party chairmen meeting in Chicago adopted a resolution blaming "a few overzealous individuals" for Watergate and lending unequivocal support to the president.

Vice President Spiro T. Agnew accused the press of using "hearsay" and other tactics that were "a very short jump from McCarthyism." The same comparison was picked up by the man who had succeeded McCarthy in the Senate, Democrat William Proxmire of Wisconsin, who said the media had been "grossly unfair" to Nixon.

By then, however, the bleeding in the Gallup Poll had dropped Nixon to just 48 percent approval in the first week of May -- a drop of 20 percentage points since January. And that rating would keep on falling through the 25 percent level before Nixon's resignation in August 1974.

In the short two weeks since this scandal was disclosed, there have been all sorts of obfuscatory smoke screens thrown up by blindly loyal Bush defenders, who have paraded before the cameras and spewed forth all sorts of esoteric legalisms about “inherent authority” and the AUMF in order to cloud what is, in reality, an exceptionally clear issue.

But that smoke will clear as more facts are revealed. Americans will realize that Congress – with the agreement of the Executive Branch and the intelligence community – all agreed that eavesdropping on American citizens without a warrant should be and is a crime. And knowing that, Bush ordered his Government to do it anyway. He therefore broke the law, and is unrepentant about it. Once the smoke clears, those are not difficult concepts to grasp, and Americans -- thanks to Watergate -- have a visceral aversion to illegal White House eavesdropping and Presidents who claim the right to break the law. These are not difficult issues to explain.

Ultimately, the focus must remain on the fact that the President acted in violation of the law and brazenly claims the right to do so. Democrats and everyone else who care about the rule of law should be guided by their passion and anger over that fact. Everything else will follow from it.

UPDATE: This CNN/USA Today/Gallup poll (h/t Mike G.) from December 20 -- reporting that "[n]early two-thirds said they are not willing to sacrifice civil liberties to prevent terrorism, as compared to 49 percent saying so in 2002" -- is of much greater relevance to the NSA scandal than a poll regarding the general desirability of (legal) surveillance. But public opinion on the NSA scandal won't be known until a credible poll asks whether the public approves of the Bush Administration's eavesdropping on American citizens with no oversight and without obtaining judicial authorization as required by FISA.

The President's law-breaking

To savor the utter absurdity of today's new Bush Administration defense for its wanton and ongoing law-breaking -- namely, that it only breaks the law with regard to "very bad people" -- please see this post.

And here are two excellent sources well worth reading, which further demonstrate the utter clarity of the Bush Administration's law-breaking:

(1) A Federalist Society debate (.pdf file) in which Robert Levy, conservative Federalist Society member and Senior Fellow in Constitutional Studies at the Cato Institute, obliterates the Bush Administration's legal defenses (h/t ReddHedd, via e-mail); and

(2) A post at Think Progress which lays out the irrefutable answer to the Bush Administration's primary defense -- that Congress authorized it to eavesdrop outside of FISA when it enacted the AUMF.

The more these issues get debated, the clearer it becomes that the Administration broke the law.

Republicans speak out forcefully for the rule of law

As Jane Hamsher recently observed, the media is beginning to depict the NSA eavesdropping scandal as just the latest partisan war, whereby it is "liberals" who are objecting to President Bush’s clear and deliberate eavesdropping in violation of the law. Depicting the scandal in this light is absurd and inaccurate for multiple reasons, beginning with the fact that President Bush’s behavior violates every core principle to which conservatives claim adherence – from a limited and restrained Federal Government which honors the classically American demand to be "left alone," to the central importance of the rule of law and clear principles of right and wrong. And some prominent conservatives have spoken out strongly against President Bush's law-breaking on precisely these grounds.

As the Administration parades around one defense after the next to justify and excuse its violations of FISA -- that it was done for our own good, that it was only done against "really bad people," that the law wasn’t broad enough for them to comply with, etc. – opponents of the Administration’s law-breaking have been attempting to emphasize that the President, like all other citizens, is required to obey the law, and that it is not an excuse to claim, once he’s caught violating it, that he broke the law for a good reason.

And, as one would expect, there are lots of stirring testaments to the paramount importance of the rule of law which have been delivered by Republicans, who insist, with great moral courage, that there are no excuses or justifications for the President of the United States to violate the law. A President who violates the law, they argue, destroys the rule of law and violates every one of our Founding principles, and must be punished. It's true that most of them argued this in 1998 when advocating Bill Clinton’s impeachment for violating the law against perjury, but surely this steadfast devotion to the rule of law hasn’t waned any in just short seven short years.

Indeed, there is really no point in anyone writing any more about the importance of the rule of law and why it is so dangerous and intolerable to allow the President to violate the law. The Republicans who argued in favor of Bill Clinton’s impeachment have already advanced these very arguments as compellingly and eloquently as they can be expressed. All that remains is to prod them to apply these principles – in which they believed so righteously only seven years ago – to the individual who is currently occupying that office.

The pure applicability to today of these thunderous speeches of principle is truly overwhelming:


Rep. JC Watts - (R-OK)

[T]here is no joy sometimes in upholding the law. It is so unpleasant sometimes that we hire other people to do it for us. Ask the police or judges -- it is tiring and thankless, but we know it must be done. Because if we do not point at lawlessness, our children cannot see it.

If we do not label lawlessness, our children cannot recognize it. And if we do not punish lawlessness, our children will not believe it. So if someone were to ask me, "J.C., why do you vote for, why did you vote for the articles of impeachment?" I would say, "I did it for our children."

Rep. Tom Delay (R-TX)

I believe that this nation sits at a crossroads. One direction points to the higher road of the rule of law. Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous application of the principle that no man is above the law. Now, the other road is the path of least resistance. This is where we start making exceptions to our laws based on poll numbers and spin control. This is when we pitch the law completely overboard when the mood fits us, when we ignore the facts in order to cover up the truth.

Shall we follow the rule of law and do our constitutional duty no matter unpleasant, or shall we follow the path of least resistance, close our eyes to the potential lawbreaking, forgive and forget, move on and tear an unfixable hole in our legal system? No man is above the law, and no man is below the law. That's the principle that we all hold very dear in this country.

Rep Dick Armey (R-TX)

How did this great nation of the 1990s come to be? It all happened Mr. Speaker, because freedom works. . . . But freedom, Mr. Speaker, freedom depends upon something. The rule of law. And that's why this solemn occasion is so important. For today we are here to defend the rule of law. . . .

If we ignore this evidence, I believe we undermine the rule of law that is so important that all America is. Mr. Speaker, a nation of laws cannot be ruled by a person who breaks the law.

Otherwise, it would be as if we had one set of rules for the leaders and another for the governed. We would have one standard for the powerful, the popular and the wealthy, and another for everyone else. This would belie our ideal that we have equal justice under the law. That would weaken the rule of law and leave our children and grandchildren with a very poor legacy.

I don't know what challenges they will face in their time, but I do know they need to face those challenges with the greatest constitutional security and the soundest rule of fair and equal law available in the history of the world. And I don't want us to risk their losing that. . . .

Christopher Cox - (R-CA)

Every single man and woman in Operation Desert Fox at this very moment is held to a higher standard than their commander in chief. Let us raise the standard of our American leader to the level of his troops. Let us once again respect the institution of the presidency. Let us see to it indeed what the censure resolution says merely in words, that no man is above the law. Let us not fail in our duty. Let us restore honor to our country. . . .

House Impeachment Manager Stephen Bryer (R-IN)

A core function of the government derives its role from the social contract that our civilized society has under which a fundamental exchange of rights takes place.

We give up the right to exercise brute force to settle disputes, a situation where chaos reigns and the strongest most often prevail. Instead, we submit to the power delegated to the state under which an individual then submits, to the governmental processes as part of the social contract. Indeed, when conflict arises in our society, we as individuals are compelled via the social contract to take disputes to our third branch of government, the courts. The judicial branch of government then peacefully decides which party is entitled to judgement in their favor after a full presentation of truthful evidence.

Implicit in the social contract that we enter into as a civilized society is the principle that the weak are equally entitled as the strong to equal justice under law. Despite the tumbling tides of politics, ours is a government of laws and not men. It was the inspired vision of our Founding Fathers that the Judicial, Legislative, and Executive branches of government would work together to preserve the rule of law. The United States Constitution requires the judicial branch to apply the law equally and fairly to both the weak and the strong.

Once we as a society— and particularly our leaders— no longer submit to the social contract, and no longer pay deference to our third branch of government— which is equally as important as the legislative and executive branches of the government we begin to erode the rule of law and begin to erode the social contract of the great American experiment. . . .

Our President, who is our chief executive and chief law enforcement officer and who alone is delegated the task under our Constitution to "take Care that the Laws be faithfully executed," cannot and must not be permitted to engage in such an assault on the administration of justice. The Articles of Impeachment adopted by the House of Representatives establish an abuse of the public trust and betrayal of the social contract in that the President is alleged to have repeatedly placed his personal interests above the public interest and violated his Constitutional duty.

For if he is allowed to escape conviction by the Senate, we would allow our President to set the example for lawlessness and corruption. We would allow our President to serve as an example of the erosion of the concept of the social contract embraced and embodied by our Constitution. I don't believe this Senate will allow that to happen. . .

"The whole of the executive branch acts subordinately to the command of the President in the administration of federal laws, so long as they act within the terms of those laws. Their offices confer no right to violate the laws, whether they take the form of constitution, statute, or treaty." . . . .

In The Imperial Presidency, Professor Arthur Schlesinger, Jr. states: "The continuation of a lawbreaker as chief magistrate would be a strange way to exemplify law and order at home or to demonstrate American probity before the world." By a conviction, the Senate will be upholding the high calling of law enforcement in protecting the rule of law and equal justice under the law. . . . .

We are seeking to defend the rule of law. America is a "government of laws, and not of men." What protects us from the knock on the door in the middle of the night? The law. What ensures the rights of the weak and the powerless against the powerful? The law. What provides rights to the poor against the rich? The law. What upholds the rightness of the minority view against the popular, but wrong? The law.

Rep. Robert Goodlatte (R-CA)

Since it is the rule of law that guides us, we must ask ourselves what happens to our nation if the rule of law is ignored, cheapened or violated, especially at the highest level of government. Consider the words of former Supreme Court Justice Louis Brandeis, who was particularly insightful on this point. "In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously.

For good or for ill, it teaches the whole people by its example. If government becomes a lawbreaker, it breeds contempt for the law. It invites every man to become a law unto himself." Mr. Chairman, we must ask ourselves what our failure to uphold the rule of law will say to the nation, and most especially to our children, who must trust us to leave them a civilized nation where justice is respected. . . .

If we truly respect the presidency, we cannot allow the president to be above the law. . . .

I have heard from many constituents who are deeply concerned that action be taken in this matter, and I appreciate them sharing their thoughts. One of those constituents is a 12-year- old sixth grade student from Linkhorn (sp) Middle School in Lynchburg, Virginia named Paul Inge (sp).

He recently wrote, "I am a Boy Scout who is concerned about the leadership of the president of the United States of America. It is my understanding that other ordinary citizens who lie under oath are prosecuted. The president should not be any different. He should also have to obey the laws. As a Boy Scout, I have learned that persons of good character are trustworthy and obedient. I feel that the character of the president should be at least as good as the leaders that I follow in my local troop and community. Is this too much to ask of our country's leaders?"

The precious legacy entrusted to us by our founders and our constituents is a nation dedicated to the ideal of freedom and equality for all her people. This committee must decide whether we will maintain our commitment to the rule of law and pass this precious legacy to our children and grandchildren, or whether we will bow to the political pressure for the sake of convenience or expediency.

Much of our hopes and dreams for our children, like Paul Inge, and for the integrity of our nation, depends on the answer to that question. Our Founding Fathers established this nationon a fundamental yet at the time untested idea that a nation should be governednot by the whims of any man but by the rule of law. Implicit in that idea is the principle that no one is above the law, including the chief executive.

The Administration's "very bad people" defense

In order to mollify fears sparked by its illegal eavesdropping on American citizens, the Administration has returned to League of Justice cartoons as its touchstone for defending itself. Here is White House spokesman Trent Duffy telling us yesterday why we should just stop with all this fuss about the Administration's FISA-violating eavesdropping on American citizens:

This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.

As a preliminary matter, it really is amazing how the White House continuously talks to Americans the way a third-grade teacher explains to his 8-year-old students why Johnny had to go to the principal’s office – because he was "very bad." This cartoonish lecture – about how we shouldn’t worry that the Administration is engaging in illegal, rights-infringing conduct because they’re only doing it to the "very bad people" -- is the same one which they trot out, with great success, whenever they want to justify their lawless behavior, from their torture policies to Jose Padilla’s indefinite incarceration in a military prison. Since they’re breaking the law and violating basic Constitutional guarantees only for The Very Bad People, why would any Good Person object?

There are several obvious problems with this self-justifying theory. The first is that it’s based on patent falsehoods. Are we now supposed to believe that the Administration has only eavesdropped on "very bad people who have a history of blowing up commuter trains, weddings and churches." If the Administration is actually aware of the identity and location of people who have committed such murderous acts -- which they would need to be in order to eavesdrop on their conversations -- wouldn’t they be (at least) arresting them?

And if the people on whose conversations they want to eavesdrop are people "who have a history of blowing up commuter trains, weddings and churches," are we supposed to believe that they could not obtain, with great ease, FISA warrants to do so? If -- as Duffy now claims -- the only goal which the earnest, innocent Bush Administration had was to eavesdrop on "very bad people who have a history of blowing up commuter trains, weddings and churches," then all of the excuses offered up thus far as to why FISA was inadequate – e.g., because the Administration actually wanted to engage in sweeping surveillance on everyone, because FISA’s "probable cause" standard is too restrictive – make no sense.

It’s quite a dilemma the Administration has created for itself. The narrower the Administration defines the scope of its surveillance targets (in order to soothe concerns about its eavesdropping), the more impossible it becomes to justify why it had to eavesdrop outside of the law.

Second, while there are some individuals who unquestionably qualify as "very bad people" -- the ones, for instance, "who have a history of blowing up commuter trains, weddings and churches" -- there are many others who are considered by the Administration to be "very bad" who likely are not. Administrations of both parties have a natural tendency to view individuals with radical (though legal) political agendas or even garden-variety political opponents as "very bad people."

Our country has a long and sordid history of the Executive branch abusing its considerable powers to fight against "very bad people" by recruiting those powers in service of its own agenda, and not the interests or security of the country. This was exactly the right-wing complaint against the Clinton Administration's attacks on Randy Weaver and David Koresh, not to mention the Republicans' now-conveniently-forgotten pious tributes to the sanctity of the rule of law when it came to Clinton's law-breaking.

Similar complaints of executive abuse of such powers were made against every Administration since at least 1960. The collective distrust that arose from those abuses is precisely why the country enacted laws requiring that powers such as secret eavesdropping be exercised only with judicial approval or other such safeguards, rather than in secret by an unchecked Executive acting alone.

The real point here is that we don’t have a system of government – or, at least, we didn’t – where the President can unilaterally decree, with no trial or due process, that certain individuals are in the category of "very bad people," who then, by virtue of their inclusion in that category, can be stripped of all of their constitutional protections or have the Government act against them in violation of the law. It is always worth remembering that in the Padilla case, this Administration expressly claimed for itself this most ominous of powers -- the power to violate the constitutional rights of American citizens by, for instance, incarcerating them indefinitely and with no due process, literally based on nothing more than the President’s secret, unilateral, unreviewable decree that someone is an "enemy combatant" (legalese for "very bad person").

That is the same definitively authoritarian theory on which the Administration’s explanation here is based. Duffy’s statement amounts to yet another decree that the President can violate the law and eavesdrop on any citizen as long as he decides – alone, in secret and with no oversight – that someone is a "very bad person." That is not hyperbole or distortion; that really is the Administration’s position -- that we should not worry about this lawless eavesdropping on Americans because the only ones whose communications are being invaded are the ones whom George Bush thinks fall into the "very bad people" category. That reassurance can comfort only the (admittedly sizable) portion of the population which places blind faith in George Bush.

Similarly, it is a very broad area which lies between, at one extreme, "phone calls designed to arrange Little League practice or what to bring to a potluck dinner" (which the Administration claims, credibly, it was not interested in hearing) and, at the other extreme, phone calls from "very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches." Duffy claims that the Administration’s lawless eavesdropping program was "designed" to listen in only on the "very bad people’s" communications. But that is not, of course, the same as saying that it was only on such conversations which the Administration actually eavesdropped.

We still don’t know whether the Administration really did confine its eavesdropping only to the "very bad people." We don’t know this because the Administration: (a) refuses to tell us on whose communications they eavesdropped and (b) failed to comply with the law which was designed to prevent abuse by requiring judicial approval for such eavesdropping (and which made it a criminal offense to eavesdrop without it).

What is and must remain clear is that the Administration’s latest excuse for its illegal eavesdropping -- that it only did this to the "very bad people" -- is both incredible and, most importantly, irrelevant. It is incredible because there was no need whatsoever to operate outside the law if the only eavesdropping targets were the "very bad people." And it is irrelevant because illegal behavior is still illegal even if the law is broken only with regard to people whom the law-breakers believe to be "very bad."

Ten Worst Americans

The BBC History Magazine published a list yesterday of the 10 Worst Britons as selected by a group of historians and, in response, blogger Alexandra von Maltzan issued "A Challenge to the Blogosphere" asking bloggers to compile their list of the Ten Worst Americans, and she asked me by e-mail to contribute my list.

As is the virtue and the vice of the blogosphere, virtually everyone she asked was able to survey 250 years of history, single out all of the villains, and post their list within a few hours. Lagging embarrassingly behind, and being further shamed in my inexcusable delay by e-mails from Alexandra gently though firmly reminding of my dereliction, I turned in my time of need to my illustrious commenter Hypatia for assistance, who then e-mailed me several suggestions.

The following list is an aggregation of Hypatia’s choices and mine. I disagree with some of Hypatia’s selections and Hypatia disagrees with some of mine, but the list simply combines our choices. I know that’s not the bravest method but desperate times call for desperate measures. After all, it’s been almost 20 hours since I was asked for my list, which, in blogosphere time, equates to a few years. So I am very late with this.

If there are some selections here whose inclusion is driving you to a blind rage, you should assume those were the ones contributed by Hypatia. In no particular order:

(1) Harry Ansliger - America’s first "drug czar," courageous warrior against marijuana, and almost certainly deserving of the title, "the Father of the War on Drugs"

(2) John Yoo - The authoritarian theoretician, enabler and justifier of the current government excesses and lawlessness to which we are being subjected, as well as the ones still to come/be revealed

(3) Ted Hall - Manhattan Project spy who passed on more secrets to Josef Stalin than better-known traitors Ethel & Julius Rosenberg and/or Alger Hiss

(4) Joseph McCarthy - One of the founding theoreticians of the still popular world-view that individual liberty is incompatible with America’s security

(5) Richard Perle - As corrupt as he is dishonest, his neoconserative, Israel-above-all poison infects every component of America’s foreign policy

(6) "Rev." Lou Sheldon - Has devoted literally decades of his life to waging noble war against the homosexual agenda. On the bright side, he has helped tens and tens of gay men pretend that they have converted.

(7) Harry Blackmun - With a single, intellectually flimsy judicial opinion, did more than anyone else to inflame and render irresolvable America’s paralyzing and internally destructive culture war

(8) Pat Robertson/Jerry Falwell/James Dobson - Destroyers of modern, limited-government conservatism whose vision of America provides an instructive illustration of what Thomas Jefferson’s America would look like . . . if his worst nightmares came true.

(9) Rush Limbaugh - pumping intellectually dishonest, nakedly hypocritical, supremely partisan, bottom-scraping trash into the minds of 20 million enraptured followers every day for the last 20 years. Has done more to degrade the national political dialogue than any other person in the last several decades.

(10) The Commenters at Little Green Footballs - a truly unique brew of genocidal fantasies, raging fascist impulses, genuine collective mental imbalance, and towering stupidity who, on a daily basis, industriously convert even innocuous news articles into a pretext for their repetitive, ritualistic orgies where they primally beat their chests, single out the Culprits of the Day, and then gleefully advocate their violent, gruesome deaths.

FISA Court rejected Bush surveillance applications?

A report out yesterday from UPI, based on a Saturday article from the Seattle Post Intelligencer, claims that Bush decided to eavesdrop outside of FISA because the FISA court, in 2003 and 2004, began modifying, and even rejecting, applications by the Bush Administration for surveillance at an unprecedented rate. From the Intelligencer:

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

Government leaks in this matter thus far have been quite suspect, and one would be well-advised to go to the original source rather than relying on newspaper accounts of them. The story purports to rely upon "Justice Department reports to Congress" but it's unclear whether the referenced reports are public or not. What makes this article a bit difficult to believe is this bit:

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.

It is hard to believe, to put it mildly, that the FISA court refused to allow surveillance on "dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States." If someone were communicating with a "targeted al-Qaida suspect," they presumably were considered to be that by virtue of some evidence of their communications with al-Qaida, which would easily prompt approval by the FISA court for surveillance (not to mention that it is equally hard to believe, at least, that this Administration knows of "dozens of people" in the country "who were communicating with targeted al-Qaida suspects" and did nothing other than apply for warrants to eavesdrop on them).

And it is worth mentioning that this "stingy FISA court" excuse for violating FISA did not arise until now -- more than a week after initial disclosure of this program and all sorts of entirely different excuses for eavesdropping outside of FISA have been offered up by the Administration. Similarly, the FISA court's rejection of a few applications would hardly explain a wholesale refusal to comply with FISA -- the creation by the Administration of a whole new eavesdropping program designed to exist secretly outside of the law -- as opposed to proceeding with eavesdropping in those handful of cases where the FISA court refused to allow it.

But really, none of this actually matters. There is no doubt that Bush defenders will sieze on these types of reports as though they constitute some sort of justification for Bush deciding to eavesdrop in violation of FISA. To preempt that illogic, let's review a few basic principles again.

In a constitutional republic, the President does not have the right to break laws simply because he believes the law in question is a bad law or because he believes that he has a good reason for breaking the law. Nor does he have the right -- once a court refuses to give him authorization -- to do exactly that which the law clearly states he can do only with judicial approval.

Bad laws can be changed just as easily as they were enacted, especially by a President whose political party controls both houses of the Congress. If the FISA standards were too stringent to permit the Executive branch to engage in the surveillance it believed it needed to engage in, then the President could have sought changes to those standards (the way he did after 9/11 when the Patriot Act was enacted, which, in part, liberalized FISA in obvious anticipation by the Congress that FISA would continue to serve as the framework for our surveillance efforts). Or he could have sought a judicial determination -- including from the secret FISA court -- declaring that he did not have to comply with FISA.

But he did none of that. Instead, at least according to this story, when the court ruled that he was not permitted under the law to engage in the surveillance he wanted to engage in, he went ahead and did it anyway. That behavior is the very definition of lawlessness.

We are likely to start seeing all sorts of leaked stories like this designed to illustrate how imperative it was for Bush to eavesdrop outside of FISA. But none of that matters to the issue at hand. What the rule of law means is that nobody, including the President, has the right to violate it -- to engage in criminal conduct -- just so long as they find a good excuse for having done so once they get caught.

UPDATE: As Lis Riba notes, the alleged flurry of modifications and rejections by the FISA court in 2003 and 2004 isn't much of an excuse for the illegal surveillance ordered by Bush, since the FISA-bypass program began in late, 2001, when the FISA court still had its accommodating rubber-stamp out whenever the Administration came calling.

The idiotic and revealing Civil War analogy

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.

What the NSA scandal is really about

Bush defenders are now at the point where, to defend the President, they are literally advocating that preserving privacy against the Government is unnecessary, worthless and even dangerous -- illustrating, yet again, that there are few, if any, limits which they are willing to place on the Administration’s power in the name of the war on terrorism. It is this rapidly evolving danger which the NSA eavesdropping scandal, at its core, is about.

Along those lines, Scott Lemieux yesterday asks a question about the theories of Bush defenders with respect to violations of the 22nd Amendment (which limits a President to two terms in office) -- a question which is similar to the one I asked several days ago with regard to other assorted potential Governmental acts undertaken in the name of the war on terrorism (in a post to which many Bush defenders purported to respond, though none with an actual answer):

would . . . any of the large number of conservative pundits who have endorsed the Yooian theory that the President's Article II powers trump all other legal limits on the executive's authority where "national security" is involved, have any principled way of not supporting the legality of the President's actions if he decided that the 22nd Amendment was a luxury the country can't afford during the War on Terra?

After all, the Court used a similar logic to permit the President to engage in a clear violation of the 14th Amendment during WWII, and the most popular conservative blogger who writes a significant amount of original content has already written a book defending the decision. And that's the problem with this reasoning: there's no logical end to it. Even if we were to assume for the sake of argument that the President's illegal wiretaps haven't created any substantively major violations of civil liberties, the reasoning being used to pretend that they're legal is incredibly dangerous.

It is worth remembering, as Scott points out, that we don’t actually know who the Administration eavesdropped on as part of this still secret warrantless surveillance program, nor do we know how the information which the Administration acquired has been used. All we know about any of this is what the Administration, through a series of ever-changing, self-justifying excuses, has deigned to tell us. And what it has told us thus far has been glaringly contradictory.

When this warrantless eavesdropping was disclosed, George Bush first assured us that the eavesdropping was directed only to "people with known links to al Qaeda and related terrorist organizations" – an explanation which made absolutely no sense whatsoever, since FISA could have easily accommodated eavesdropping directed at such a targeted, narrow category of communications. It was immediately apparent that this explanation was false, because it simply made no sense as an explanation for why FISA was not complied with. Rather than mollify concerns over this secret and lawless eavesdropping, this insultingly incoherent explanation only inflamed those concerns.

That initial failure led the Administration to thereafter swing to the polar opposite explanation. Rather than the narrow, carefully calibrated eavesdropping which Bush initially claimed they were engaged in, the Administration began claiming, mostly through leaks, that it could not stay within the framework of FISA because eavesdropping was too widespread for FISA to accomomdate. They now claim that the NSA is engaged in a novel form of broad data-mining which involves sifting through everyone’s communications, thereby rendering the notion of FISA warrants -- like Geneva Conventions restrictions, prohibitions on torture, and due process for imprisoned American citizens -- nothing more than a quaint and obsolete remnant to be discarded in the name of our fear of terrorism.

What is so striking about this wildly shifting rationale for the Administration's violations of FISA is that, to Bush defenders, it doesn’t much matter what excuse is offered up. They cling to any rationale offered, and tout it in order to argue that their leader did nothing wrong. What has become readily apparent is that there is a sizable portion of the population – exactly what portion remains to be seen – which not only has no objection to the Administration (at least this Administration) engaging in wholesale invasion of the privacy of American citizens via lawless and oversight-less monitoring of our communications, but actually and affirmatively wants the Administration to do so -- and the more the better.

Thus far, the warrantless eavesdropping debate has proceeded on the assumption that the Bush Administration -- despite its mutually exclusive explanations -– has been candid about its objectives and its actions. The Administration claims that it only eavesdrops on Al Qaeda and then the debate becomes about whether such narrow eavesdropping is justified. Then the Administration changes its story and claims that it was engaged in a unique form of data-mining, and presto, even Administration opponents shift their debate to whether this sort of data-mining justifies the Administration’s violations of FISA. The blithe willingness to assume that there has been no abuse of the Administration’s secret, lawless eavesdropping power -- all because the Administration assures us that there has been no abuse -- is staggering.

But regardless of the ever-shifting rationale used to justify the Administration’s eavesdropping, the broader question is how much privacy Americans are willing – even eager – to cede to the Federal Government in the name of the "war against terror." I would be very interested in seeing polling results – or the responses of Bush-defending bloggers – to these questions:

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?

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?

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?

As Lemieux points out, there is really no rationale for opposing such measures available to those who are defending the Administration’s secret, sweeping eavesdropping activities. That’s because to endorse the Administration’s warrantless NSA eavesdropping on American citizens is to embrace the notion that concepts of "privacy" against the Government are abstract and worthless when weighed against the need to maximize our security against terrorists. And Congressional or even constitutional limits on the powers of the President have to give way to the imperative of preventing terrorist attacks on the United States.

That is why the support for Bush’s lawless eavesdropping does not wane even as his justifications for it change. The pro-Bush support is not tied to any specific privacy-invading eavesdropping program. Instead, what they support is the disregarding of privacy protections altogether in pursuit of greater security -- on the grounds that privacy, for those who are doing nothing wrong, has no real value.

Lest anyone think that is hyperbole or a distortion of the position of the Bush defenders, many of them have been honest enough to come right out and say that this is what they are advocating. Here is Rush Limbaugh, preaching all-out, anti-privacy arguments to 20 million adoring Americans:

"Liberals and Democrats, Limbaugh claimed, are only opposed to this because they dont want anyone finding out what they’ve been up to. … What have you folks been doing that you so desperately want to keep hidden?"

And here is Federal Court of Appeals Judge Richard Posner, the day after he wrote a truly odious Washington Post Op-Ed recommending that the Government expand its warrantless surveillance to "innocent people" in America as well as suspected terrorists, making a prediction in an online chat regarding the willingness of Americans to cede to the Federal Government all privacy with regard to their communications:

I think it would be highly desirable to explain to the public the tradeoffs between security and privacy. Effective counterterrorism does entail some reduction in privacy. I don't think most people would mind the government's scrutinizing their conversations for information of potential intelligence value if they trusted the government not to misuse the information.

And here is regular Protein Wisdom commenter Smithy, expressing his bewilderment at what all this "privacy" fuss is about:

Frankly, the idea of widespread NSA surveillance is a non-issue. I couldn’t care less if the government listens to my phone conversations. I have nothing to hide. All someone who listened to my phone conversations would learn is that I love America and hate terrorists.

If people have nothing to hide, then they have nothing to fear as far as surveillance goes. It is only those anti-American elements—"peace" activists and the rest of the Michael Moore wing of the Democratic party—that are complaining about this. Perhaps it is because they are afraid that the government will learn what they are really up to.

Smithy’s formulation is a little crude perhaps, but not really different in substance from what most Bush defenders have been arguing in order justify Bush’s conduct. To them, privacy is an abstract, basically empty luxury which we can perhaps discuss in times of peace, but in times of war, it’s not something we can afford to demand. And if you’re not doing anything wrong, why would you care if the Bush Administration listens in on what you’re doing and saying? The Bush Administration should be listening to and watching everything and anyone it can monitor, because the more it knows, the safer it can make us. Who would be against that, unless you have something to hide, or unless you’re not "serious" about stopping terrorism?

Isn’t that ultimately what this debate is really about? There are those who don’t care if they have any privacy from the Government and there are those who do. And there are those who blindly trust the Bush Administration to do anything (torture, eavesdrop without warrants, incarcerate citizens without due process) because they ascribe with an almost religious fervor to the premise that the Administration is on their side -- the side of right and justice, the side of keeping us safe from The Terrorists -- and, thus, the more power the Administration has, the better.

The problem with the NSA eavesdropping debate thus far is that the focus has been on FISA and data mining and "inherent authority" instead of what the debate really is about – whether we are at the point where our fear of terrorism is really so consuming that we are willing to cede our privacy to the Administration and entrust virtually limitless power to it -- including the power to override the law -- in exchange for protection from Terrorists, and based on the Administration's promises that it won’t abuse this power. To see that this is what the debate really is about – and to see that Bush defenders are necessarily advocating notions this radical – all anyone has to do is listen to what they are saying.

There are no powers they are unwilling to have the Bush Administration acquire because they blindly trust the Administration to wield these powers for our own good, and without any real abuse. To them, concerns that the Administration will abuse unchecked powers come from, as Bill Kristol put it yesterday, a "fever swamp" of "paranoia." To be sane, rational and "serious" about terrorism, in their view, one must be eager to give the Bush Administration as much power as it can get, and to cede as much privacy and other anti-government safeguards as possible, on the ground that one can trust the Administration to use these powers for good.

Concerns that the Administration will abuse these powers render you paranoid and unserious. Trying to prevent the Administration from fighting the terrorists by invoking petty legal restrictions on its powers renders you a paranoid subversive. We don’t need privacy against the Government because the Government only wants to protect us, and privacy is only for those who are trying to conceal wrongdoing. Privacy is the friend of the criminal and the terrorist.

That is really what is ultimately at stake with this NSA eavesdropping scandal, whether or not that debate ends up being engaged.

More campus conservative victims cry for help

One of the most pernicious movements of the 1980s and 90s was left-wing political correctness on college campuses, which sought to impose codes of intellectual orthodoxy on students and faculty alike, and to punish those who expressed dissenting views on the ground that such views created a "hostile" academic environment and made certain students "uncomfortable." While vestiges of that movement remain, it has been largely discredited by the realization that academia is the last place where political views and speech ought to be regulated.

That failed left-wing attack on political speech and free inquiry on college campuses has been replaced by its increasingly vibrant, equally pernicious mirror image – a movement based upon petulant demands by campus conservatives that academic institutions not just permit them to freely express their conservative political views, but also to ban disagreement with those views and to punish faculty members who criticize conservatism or, worst of all, who commit the ultimate sin of speaking ill of President George W. Bush in the classroom.

I wrote about the last two such concocted campus "controversies"-- one which was peddled in National Review and the other, the following week, in The Weekly Standard -– and those incidents are quite illustrative of what is going on here. These "controversies" almost never entail efforts to suppress the views of conservative students, nor are they about conservative students being disciplined for expressing their views. Instead, these shrieking complaints arise out of nothing more than the claim that conservative students feel "uncomfortable" because their professors and college administrators disagree with their views and say so. And there is a handful of publicity-seeking groups, the shrillest of which is led by the incomparably shrill David Horowitz, which are behind most of these controversies.

These chronically complaining activists -- who are plainly in search of some of that precious victim glory – wormed their way into the pages of The New York Times this weekend (h/t ReddHedd), in an article which reports that these groups have now recruited some state legislators to their viewpoint-suppressing cause. Their belief that they are entitled to a dissent-free environment, even in the classroom, is noteworthy on its face, but always more striking, at least to me, is the emotional fragility and delicate sense of entitlement which these campus conservatives exude without embarrassment.

Just listen to these complainers describe the grave injustices which are befalling them:

While attending a Pennsylvania Republican Party picnic, Jennie Mae Brown bumped into her state representative and started venting.

"How could this happen?" Ms. Brown asked Representative Gibson C. Armstrong two summers ago, complaining about a physics professor at the York campus of Pennsylvania State University who she said routinely used class time to belittle President Bush and the war in Iraq. As an Air Force veteran, Ms. Brown said she felt the teacher's comments were inappropriate for the classroom.

And here’s another self-styled victim of academic tyranny:

The student group has fielded concerns from people like Nathaniel Nelson, a former student at the University of Rhode Island and a conservative, who said a philosophy teacher he had during his junior year referred often to his own homosexuality and made clear his dislike for Mr. Bush.

Mr. Nelson, now a graduate student at the University of Connecticut, said in an interview that the teacher frequently called on him to defend his conservative values while making it clear he did not care for Republicans.

"On the first day of class, he said, 'If you don't like me, get out of my class,' " Mr. Nelson said. "But it was the only time that fall the course was being offered, and I wanted to take it."

These poor little adults-disguised-as-babies have to endure professors who are openly gay, and worse, who criticize the President of the United States – a wildly inappropriate thing to do in a college classroom, of course. Sometimes, these professors even go so far as to criticize the students' views. And these oppressed students have conservative self-victimizing groups lurking behind them urging them to play up their mental trauma and to dishonestly and quite pitifully conflate disagreement with their views with some sort of authoritarian effort to suppress those views.

One of the principal benefits and purposes of college is to have one’s previously unexamined views scrutinized, dissected and challenged. If individuals don’t want to have their political and other views challenged and even attacked, they ought not to go to college, or they ought to attend one of the many academic institutions which exist for the purpose of propagating specific political or religious doctrines in a harmonious echo chamber.

Conservative viewpoints are not exactly hard to find these days. All three branches of the federal government are controlled by people who ascribe to those views, and all of our most significant media venues for expressing political opinion entail, at least, an equal dose of conservatism as they do any other viewpoint. And in academia, there are prominent and outspoken conservative professors on virtually every campus who pursue their conservative scholarship and express their conservative views without any limitations at all.

Listening to conservative students whine about their plight all because their professors disagree with their views is quite annoying. But the effort by these students and their sponsoring victim groups to start recruiting lawmakers to their cause, with threats of regulating ideological expression on college campuses, is far more than just annoying. These groups masquerade under the banner of diversity of opinion but are plainly devoted to imposing their own orthodoxy in academic institutions and to punishing faculty members who are openly critical of their ideology and/or critical of George Bush.

Anyone who opposed the political correctness movement when it came from the Left ought to be criticizing this new conservative version of it with equal vigor. Instead, many of the same people who insisted (correctly) that the PC movement of the Left was a grave threat to academic freedom and free expression have co-opted those very weapons and, based on the very same premises, are seeking to use them to ban academic faculty from expressing any political opinions with which they disagree.

The threat to privacy posed by limitless Government eavesdropping (updated)

Frank Church was a U.S. Senator from Idaho from 1956 to 1980, whose work overseeing and reforming abuses by the American intelligence community left a controversial legacy. Church himself was a military intelligence officer during World War II, and he became best known in the Senate for his work as Chairman of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which investigated and documented serious abuses by the CIA and FBI against American citizens.

The work of Church’s Committee led in the mid-1970s to an array of restrictions and limitations being placed on the CIA and the FBI with respect to their gathering of intelligence and engaging in operations against American citizens. Many still believe that these restrictions constituted an overreaction to the uncovered abuses, while many think they did not go far enough. But whatever else one may think of Church’s work in the Senate, it is now clear that he understood far better and far earlier than almost anyone else the serious danger which the Government’s ability to eavesdrop on our conversations poses to the most basic concepts of privacy and liberty.

And even back in 1975, Church found the eavesdropping and other information-gathering capabilities of the then-relatively primitive NSA to be particularly alarming:

Thirty years ago, Senator Frank Church, the Idaho Democrat who was then chairman of the select committee on intelligence, investigated the agency and came away stunned.

"That capability at any time could be turned around on the American people," he said in 1975, "and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide."

He added that if a dictator ever took over, the N.S.A. "could enable it to impose total tyranny, and there would be no way to fight back."

And as the Government’s technological prowess has advanced by orders of magnitude since then, its power to monitor all aspects of our communications has as well:

At the time, the agency had the ability to listen to only what people said over the telephone or wrote in an occasional telegram; they had no access to private letters. But today, with people expressing their innermost thoughts in e-mail messages, exposing their medical and financial records to the Internet, and chatting constantly on cellphones, the agency virtually has the ability to get inside a person's mind.

This is why the NSA lawbreaking scandal matters so much. That the Federal Government can eavesdrop on all of our communications -- literally, every communication, in every form -- is a truly awesome power. Its potential for abuse -- serious, incomparable abuse –- is self-evident, or at least it ought to be.

Distrust of politicians and Government officials is not a hallmark of unhealthy paranoia. To the contrary, it used to be a defining American characteristic regardless of party affiliation or ideology. Our nation was borne of the premise that the most serious threat to liberty was an excessively powerful Federal Government. And because of this characteristically American distrust of government, the country’s founding was based on the promise of a severely limited Federal Government. The principal purpose of the Constitutional was to limit the extent to which the Federal Government can abridge our liberty and intrude into our lives.

The risk that the Government will abuse its ability to eavesdrop on American citizens is not a theoretical one. The 1960s and 1970s were replete with examples of such abuses, many of which Church’s Committee uncovered, and FISA itself was the by-product of a consensus among the Congress, the Executive, and the intelligence community as to what limitations and safeguards were necessary in order to allow the Government to engage in necessary surveillance while ensuring that those powers would not be abused and that the privacy of American citizens would be preserved.

That consensus, as embodied by FISA, required judicial oversight on the exercise by the Executive of these awesome powers, and it has been the framework under which numerous Administrations, both Republican and Democrat, have effectively operated in order to engage in intelligence-gathering. It is all of this that was whimsically discarded – secretly, deceitfully and deliberately – by the Bush Administration.

We are not talking about technical violations of the law which have little impact. Nor are we talking about law-breaking scandals – such as Watergate or Monica Lewinsky – which involved illegal conduct by our highest government officials originating in relatively petty acts of dishonesty.

Instead, the law which has been so blatantly and lawlessly disregarded by the Administration is the only one which serves as a safeguard against the most privacy-threatening power which the Government has – the power to monitor and invade all aspects of our communications. That is the power which the Bush Administration has claimed for itself, to wield unilaterally and with no oversight, and to expand dramatically in ways that still remain a secret to everyone except for itself.

This country recognized the grave danger which Government eavesdropping entails, and for that reason sought to ensure almost three decades ago – with Congressional enactment of FISA – that all three branches of the Government would participate in how that power was exercised, particularly when it came to the private communications of American citizens. That solution is a reflection of the premise of our country that abuses of power are best averted by diffusing power among the three branches, and it is that solution which the Bush Administration’s secret violations of FISA, and unilateral and dramatic expansion of this eavesdropping power, intentionally destroys.

Once Governments get their hands on a particular power, they don’t give it back without a huge struggle. The power which the Bush Administration has now seized for itself – the power to listen to all of our communications, without safeguards or oversight, and in complete secrecy – is a power that has limitless potential for abuse. We have arrived at the point in this scandal where we will see whether Americans will allow the Bush Administration to get away with this lawless annexation of this immense eavesdropping power, and to wield it with no oversight against American citizens. If so, it really means nothing less than the willingness on the part of Americans, in the name of fear of terrorism, to cede any vestiges of privacy to the Federal Government.

UPDATE: The day after he wrote a Washington Post Op-Ed recommending that the Government expand its warrantless surveillance to "innocent people" in America as well as suspected terrorists, Federal Court of Appeals Judge Richard Posner participated in an online chat, during which he ventured a guess regarding the willingness of Americans to cede to the Federal Government all privacy with regard to their communications:

I think it would be highly desirable to explain to the public the tradeoffs between security and privacy. Effective counterterrorism does entail some reduction in privacy. I don't think most people would mind the government's scrutinizing their conversations for information of potential intelligence value if they trusted the government not to misuse the information.

Is it really true that we're at the point where Americans would not mind if the Federal Government listens in on all of their conversations and reads all of their e-mails? And is it really possible that a majority of Americans will ever "trust the government not to misuse the information" it gets as a result of having the unfettered right to "scrutinize our conversations"?

The mere fact that we are even talking about whether our own Government should be able to invade all of our communications this way, let alone do so in secret and with no oversight, speaks volumes to how far the fear of terrorism has already taken us on the security-liberty continuum.

UPDATE II: Jane Hamsher discovers an eloquent tribute to the importance of privacy from an extremely unlikely source.

The return of the Radiological Bomb

Whenever the Bush Administration wants to ramp up its fear-mongering in order to scare people into complying with its agenda, it always turns to its buzzing ace in the hole – the radiological bomb. When it's time for this danger to be paraded around, we are subjected to tales of League of Justice-like heroic struggles led by George Bush against an array of nuclear villans. The President is then applauded for doing whatever dirty work he needs to do to protect us from this ultimate danger. For that reason, the sudden emergence of this controversy over the Bush Administration’s ostensibly novel and aggressive warrantless surveillance in search of unusual radiological activity at Muslim mosques and businesses inside America has a strong deja vu feel to it, and more than a whiff of manipulation.

In 2002, when the Administration wanted to roll out its shining new internal detention policy -- whereby American citizens could be detained and incarcerated indefinitely with no due process based on nothing more than George Bush’s unreviewable, secret say-so -- it did so by having John Ashcroft and others launch a media blitz, where they flamboyant announced that the Administration caught the dreaded "Dirty Bomber," Jose Padilla, whose (uncharged, unproven) diabolical plot to kill us all with a radiological bomb was so scary that we had to throw him (and then other citizens like him) into a military hole indefinitely, without access to a lawyer and without even being charged with a crime.

And, anyone who opposed the Administration’s wholesale denial of due process to this American citizen was, by definition, guilty of trying to block George Bush from protecting Americans from being melted with radiation (probably because such whiny nay-sayers secretly sympathize with the terrorists and want them to win). When people are petrified about radiological bombs being detonated in their cities, nobody is much in the mood for listening to boring claptrap about constitutional precedents and due process.

Americans were terrorized enough by this radiological threat into remaining quiet while the Administration went about institutionalizing one of the worst and most un-American nightmares imaginable -- having your own Government arrest you without charges and stick you in a prison indefinitely, where you are denied any contact with the outside world (including a lawyer), even denied the right to know why you are there, and denied any opportunity to prove your innocence.

And when the Administration, during the run-up to the Iraq invasion, wanted to smash any remaining doubts about whether it was really such a good idea to invade another country which had not attacked us and which could not do so, it dispatched Condoleezza Rice and others to start ominously talking about "mushroom clouds" and uranium enrichment and "the world’s most dangerous weapons in the hands of the most dangerous dictators." And that settled things, good and quick. Yeah, war is a last resort and all that, but if the alternative is to sit around waiting for a Saddam-armed terrorist to vaporize us all with radiation, let’s get that invasion going. What are we waiting for?

And now, in the midst of a very serious and escalating eavesdropping scandal over patent lawlessness at the White House, what is suddenly thrown into our laps and our minds? It’s that dreaded radiological bomb again, this time being cooked up at shadowy Muslim mosques by evildoers who want to melt our children. And what does this unauthorized "leak" tell us? That George Bush has been on the hunt to stop them – by breaking some eggs and maybe even ignoring some technical paperwork procedures. But when it comes to stopping Muslims detonating radiological bombs inside America, isn’t overzealousness a good thing? Is it really necessary to comply with all of that paperwork – all of those bureaucratic warrant procedures which the subsersive hippy losers are always yapping about – in order to stop terrorists from using nuclear weapons against us?

And presto, in the public mind, the NSA law-breaking scandal is immediately transformed into a fear-driven referendum, yet again, on whether we want George Bush to protect us from nuclear-wielding Arab terrorists or not, even it means that he breaks a few petty rules in the process. It’s the left-wing, egg-headed law professors and ACLU whiners, with all of their tedious, legalistic paperwork obsessions about "probable cause" and warrants, versus the resolute, rule-defying cowboy doing his best to hunt down the Muslim terrorists among us in order to protect us and our children from being melted. That’s not much of a contest, and it’s one that the cowboy has won again and again. And it's the only contest he's needed to win.

The Administration’s purported efforts to find radiological activity in Muslim mosques is now supposed to be thrown onto the pile along with its lawless NSA eavesdropping program, so that the whole confusing controversy is aggregated into nothing more than the same tired, irrational terrorist-defending fetish of trying to impede George Bush in his valiant crusade to protect us from The Terrorists. And sure enough, like puppets on cue, the most blindly loyal of the Bush defenders are spitting out exactly this scary tale.

And with the images now darkly dancing around in our heads of Muslims hiding in their mosques in Los Angeles and Queens and Georgia suburbs and maybe in your own backyard, standing over a toxic brew of radiology and TNT ready to zap us all with their mushroom clouds, all of this annoying chatter about FISA and the Fourth Amendment and the NSA is supposed to meekly fade away, drowned to death by nightmares of our children with their hair on fire and glowing in the dark and George Bush trying to save them.

Is there a limit on how many times or to what extent this trick will work? Can the Bush Administration do anything with impunity as long as it talks afterwards about The Terrorists with nuclear weapons? The Administration has used that trick with great success over and over, and it obviously is of the belief that this radiological well is far from dry. Is this really going to work again?

The Bush justifications for law-breaking (con't)

My post yesterday requested that Bush defenders explain how there can be any limits at all on his power under the theories of Executive Power which they are advocating to argue that Bush had the right to violate Congressional law. Both ReddHedd at Firedoglake and Peter Daou at The Huffington Post joined in that request.

In response, there are two posts from Leon at Red State.org and two posts from Jeff Goldstein at Protein Wisdom, one of which largely relied on what Jeff reverently calls "a long and meticulously argued post" from John Hinderaker at Powerline. Leon also alerted me by e-mail to the issuance yesterday of a Memorandum from the Department of Justice (.pdf) which sets forth the Administration’s legal defense of its behavior.

This is my reply to all of that:

(1) There is not a single bit of authority in any of this for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period. The Administration is trotting out lawyers to make legalistic arguments designed to cloud this extremely clear issue, but none of that can change the fact that Bush defenders are arguing that he has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, as one would expect, it has been repeatedly made clear that under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.

Bush defenders are primarily relying upon cases which said that the Executive has authority inherently under the Constitution to order warrantless eavesdropping on Americans. But that is not the issue, and they have to know that. The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities they cite conclude that the President has such a royal power. Not one.

Marty Lederman has a superb and crystal clear post on precisely this issue. Even if one assumes to be true the dubious proposition that the President possesses inherent constitutional authority to order warrantless surveillance on American citizens, that does not mean that it is legal for him to do so in violation of a criminal statute enacted by Congress. But that is what Bush did here, and there is just nothing which even arguably gives that behavior the color of legality. That’s because we live under the rule of law where not even Presidents are bestowed with the right to engage in conduct which Congressional criminal law expressly prohibits.

(2) The Supreme Court has already addressed this issue fully and completely, in the case of Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) -- a case that I have yet to hear a single Bush defender even acknowledge. And understandably so, since that case expressly said that the President does not have the right to exercise his "inherent executive authority" in contravention of Congressional law.

Anyone who wants to see just how clear the legal issues really are here -- just how plain it is that, as most people likely know intuitively, the President does not have the right to engage in conduct which the Congress prohibits under the criminal law -- should read the Supreme Court’s opinion in Youngstown. It is a clear, straightforward, and easy to understand opinion because the Justices evidently realized that they were articulating the basic principles of how the rule of law -- rather than Executive lawlessness -- is what governs our country and keeps it stable and just. And it literally obliterates every argument head-on which is being advanced now by Bush defenders who are trying to bestow him with the power of law-breaking.

The facts are simple. During the Korean War, American steel workers decided they would go on a nationwide strike, which President Truman believed (accurately) would result in a steel shortage that would seriously impede U.S. national security. To avert that problem, Truman wanted to use the force of the Federal Government to seize the steel factories and use them to continue to produce steel. Truman had previously asked Congress to enact legislation giving him this seizure power, but Congress refused, instead enacting legislation that gave the President some new powers to deal with such problems, but it refused to include the power of seizure.

Unlike George Bush – who simply violates laws in secret that he does not think he should have to comply with – the Truman Administration argued its position in the Federal courts and asked the Supreme Court to rule that he had the "inherent authority" under the Constitution to seize the steel factories despite the fact that the Congress did not want him to do so and thus refused to give him this power.

The Supreme Court said that even though the President may have a claim to some "inherent authority" to seize these factories, once Congress has enacted laws making clear that he cannot do so, the President under our system of Government does not have the right to act outside of the law by violating Congress’ intent. In so ruling, the Court said that the where Congress has the power to legislate in a certain area (as it plainly does with regard to regulating eavesdropping on American citizens), the President is no more permitted to violate that law than anyone else is, even if he claims that doing so is necessary for him to carry out his Executive duties to protect the nation. It really does not get any clearer or more dispositive than this.

I have excerpted the relevant portions of the opinion in the post below, and the rationale of the Court is breathtaking in how applicable it is to the current Presidential law-breaking scandal. It literally takes every argument which is being advanced by the President’s defenders now and rejects them as the by-products of unconstitutional lawlessness which they so plainly are.

The particular excerpts in the post below are highly worth reading, but Justice Jackson’s summary in his Concurring Opinion of the fundamental principle of the rule of law is particularly compelling and important here:

The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government [343 U.S. 579, 655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.

No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

No principle emerges more clearly from the Constitution, all other founding documents, and the Federalist Papers than the principle that the people, through their Congress, make the law and nobody, including the President, is above it or has the right to violate it. Pro-Bush lawyers can write endless justifications from now until he leaves office, and that principle will still, by itself, resolve all of the issues relating to the Bush Administration’s eavesdropping in violation of the criminal law.

(3) As I have noted before, the Supreme Court, in the 1972 case of United States v. United States District Court for the Eastern District of Michigan et al, 407 U.S. 297 (1972), rejected the Nixon Administration’s claim that it had the authority to eavesdrop on American citizens without a warrant in order to investigate dangerous terrorist groups, and concluded that the Fourth Amendment protects American citizens against exactly such intrusions. Bush defenders object that this case involved the Government’s investigation of domestic terrorist groups, not international terrorist groups like Al Qaeda, and they therefore assert that this case is irrelevant to the current scandal, because it involves international, not domestic, terrorist groups.

But that is not how legal reasoning - or basic logic - works. Merely finding a difference between the case which led to a judicial decision and the current situation does not mean that the reasoning of the judicial decision can be ignored. The difference has to be a meaningful one – it has to be a difference that one can show would prevent the reasoning used in the court case from applying to the present situation.

No Bush defender attempts to do that when shooing away this Supreme Court case which held that the Fourth Amendment bars the Federal Government from eavesdropping on the communications of American citizens. "Oh, this is obviously different," they say, "because here we are talking about international terrorist groups, not domestic ones like were involved there."

So what? It can hardly be said that these Fourth Amendment proections disappear because the Government happens to be investigating an international terrorist group rather than a domestic terrorist group. Domestic terrorists can inflict harm to the country as grave as international terrorists can. Timothy McVeigh blew up a federal courthouse and slaughtered hundreds of Americans. The U.S. has a history of facing down dangerous subversive domestic groups. Domestic terrorist groups can do every bit as much damage to the U.S. as international terrorist groups can. Their bombs blow things up just as effectively. And they are arguably more dangerous, not less, because, by definition, they wield the obvious advantage of working from within the country and being able to blend into its population and institutions.

The focus of the Supreme Court's opinion is on the rights of U.S. citizens to be free of warrantless monitoring and invasion by their Government under the Fourth Amendment. How can it possibly be said that we give up that right just because the Government is investigating a foreign group rather than a domestic group? That makes no sense. The Court held that the crux of the Fourth Amendment is that the Government is barred from eavesdropping on American citizens without prior judicial approval. To breezily wave away that holding of the Supreme Court simply because the Government there was investigating a domestic group rather than an international group -- without even pretending to explain why that matters -- is intellectual dishonesty of the worst sort.

(4) Yesterday's Department of Justice Memorandum claims that the President complied with FISA because FISA specifically allows the Government to eavesdrop in contravention of its provisions as long as Congress enacts a new law allowing the Government to do so. And Congress did exactly that, claims the DoJ, when it authorized the Administration to use force in Afghanistan and against Al Qaeda, because that law ("AUMF") – which everyone quite obviously thought at the time was about whether the U.S. could invade Afghanistan and use military force to stop Al Qaeda, not whether the Government could eavesdrop on American citizens at home in violation of FISA – implicitly (i.e., without any saying or realizing it) allowed the Administration to eavesdrop on American citizens without obtaining the judicial approval required by FISA.

That is not even a serious argument, and the fact that the Administration is touting it shows its contempt for the rule of law. Every fact demonstrates that the Congress did not intend to give authority to the President to violate FISA when enacting that resolution, and did not believe it was doing it.

First, at the same time that the AUMF was enacted, the Patriot Act was also enacted, a primary purpose of which was to liberalize FISA with regard to the use of electronic surveillance. The assumption of liberalizing FISA was obviously that it would be the framework for the Governments’ eavesdropping. If Congress were giving the Administration authority under the AUMF to eavesdrop outside of FISA, nobody would have needed the Patriot Act to liberalize FISA standards. That the Congress bothered to alter FISA standards under the Patriot Act illustrates how insultingly frivolous it is to claim that Congress intended to authorize the President to eavesdrop outside of FISA.

Secondly, it was revealed yesterday that when the AUMF was being drafted, the Administration wanted Congress to grant it the authority to use its war powers inside the U.S., and Congress refused to give that authority. For the Administration to now claim that it had the authority from Congress which Congress actually expressly refused to give it is about as dishonest as it gets. As Justice Frankfurter said in his Concurring Opinion in Youngstown:

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld 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.

Finally, not a single Senator has said that they discussed at the time that the AUMF was enacted that they were giving the President an exemption from FISA, and scores of Senators have said that this is the opposite of what they understood they were doing when they enacted AUMF. On its face, that law allows the President to use military force against Afghanistan and Al Qaeda, and does not "amend" FISA to allow the President to eavesdrop on American citizens without bothering to comply with it.

(5) Even if the President believes that a particular Congressional law is invalid because it seeks to regulate an area which the President should control, this does not mean that the President is justified in secretly breaking that law because he decided he does not need to abide by it.

If the President really believed that the Executive has full constitutional power in the area of surveillance on American citizens and that Congress has no power, he could have gone to a Federal Court and asked it to declare FISA unconstitutional on the ground that it usurps executive authority, or he could have publicly declared his right to violate FISA – just as Harry Truman did when he wanted to seize the steel factories and thus allowed the federal courts to rule on its legality. Bush did not do that. Instead, he just broke the law, hoped nobody would find out, and even tried to prevent newspapers from reporting it when they did find out.

Constitutional disputes are for the judiciary to resolve, and they resolve these sorts of separation-of-power issue all the time. If the President decides that a law is unconstitutional, the solution is to seek a judicial declaration that this is the case – not to secretly break the law, and then, when he is caught, claim that he was allowed to break the law because it’s not a valid law anyway. That is what criminals do who break the law -- they secretly break the law, try not to get caught, get caught, and then hire lawyers to find a way to keep them out of jail. Lawyers then argue that the law is unconstitutional and the defendant therefore can’t be punished even if he broke the law.

Lawyers can find arguments for anything. If a President can secretly violate the law and do so with impunity – as long as he can get some lawyers somewhere to come up with a retroactive legalistic justification in order to give the appearance that there is at least a "legal dispute" over this authority – then the rule of law really does not exist. Lawyers can always create legal disputes, literally with regard to anything.

The self-evident strategy of the Bush defenders is to cloud the extremely clear fact of Bush’s illegal conduct with so many legalistic justifications that people will throw up their hands and decided that this is nothing more than an esoteric lawyer game, not a serious threat to the founding principles of the nation and to the rule of law. But the principle that the President does not have the right to engage in conduct which the Congress prohibits under our criminal laws is one that is as clear as it is critical to our system of government, and it is urgent that this clarity be maintained and the rule of law enforced.

The Supreme Court already rejected the Bush legal defenses

Supplementing my post above regarding the specious legal justifications advanced by Bush defenders to justify his violations of FISA, following are the relevant excerpts from The Supreme Court's decision in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) -- a case which expressly held that the President does not have the right to exercise his "inherent executive authority" in contravention of Congressional law.

As noted, the facts here are simple. During the Korean War, American steel workers decided they would go on a nationwide strike, which President Truman believed (accurately) would result in a steel shortage that would seriously impede U.S. national security. To avert that problem, Truman wanted to use the force of the Federal Government to seize the steel factories and use them to continue to produce steel. Truman had previously asked Congress to enact legislation giving him this seizure power, but Congress refused, instead enacting legislation that gave the President some new powers to deal with problems posed by such strikes, but which did not include the power to seize factories.

Unlike George Bush – who simply violates laws in secret that he does not think he should have to comply with – the Truman Administration argued its position in the Federal courts and asked the Supreme Court to rule that he had the "inherent authority" under the Constitution to seize the steel factories despite the fact that the Congress did not want him to do so and thus refused to give him this power.

Just as the Bush Administration is doing now, the Truman Administration then argued that national security required the President to exercise his "inherent authority" in violation of Congressional will:

Opposing the motion for preliminary [343 U.S. 579, 584] injunction, the United States asserted that a strike disrupting steel production for even a brief period would so endanger the well-being and safety of the Nation that the President had "inherent power" to do what he had done - power "supported by the Constitution, by historical precedent, and by court decisions."

And exactly as the Bush Administration claims with regard to FISA, the Administration then claimed that the law passed by Congress was inadequate and too time-consuming to deal with the threats:

The Government refers to the seizure provisions of one of these statutes (201 (b) of the Defense Production Act) as "much too cumbersome, involved, and time-consuming for the crisis which was at hand."

The Supreme Court unequivocally rejected these arguments -- because under the Constitution, it is the Congress which makes the law, and the President is as required as anyone else is to abide by them:

The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ."

After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

The Concurring Opinions by Justices Frankfurter, Douglas and Jackson elaborated on the rationale behind that opinion. First, Justice Frankfurter explained that the Founders insisted upon limitations on the President's power even in times of emergency because the risk of autocracy was greater than the risk that such limitations would impair our security:

A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this subject than those of Mr. Justice Brandeis:

"The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, [343 U.S. 579, 614] by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy."

Justice Douglas emphasized the supremacy of the rule of law -- as enacted by Congress -- which lies at the heart of our system of Government:

The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, [343 U.S. 579, 633] Section 3 also provides that the President "shall take Care that the Laws be faithfully executed." But, as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to execute the laws starts and ends with the laws Congress has enacted.

And in a Concurring Opinion which ought to be read by every Bush defender, Justice Jackson made clear just how incompatible with our Republic are theories which give the President the right to act in violation of Congressional statute:

The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first reading, "The executive Power shall be vested in a President of the United States of America." Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: "In our view, this clause constitutes a grant of all the executive powers of which the Government is capable." If that be true, it is difficult to see why the [343 U.S. 579, 641] forefathers bothered to add several specific items, including some trifling ones.

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.

And finally, Justice Jackson demolishes the claim that the exigencies of "war" -- especially undeclared "wars" -- allow the President to claim the right to act in violation of Congressional laws based on claimed "inherent executive authority":

Thus, it is said, he has invested himself with "war powers."

I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. 10 [343 U.S. 579, 643] . . . .

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although [343 U.S. 579, 650] it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.

We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. 19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. [343 U.S. 579, 651]

Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.

The arguments which Bush defenders are trying to use in order to justify his violations of the law have all been considered -- and decisively rejected -- by the Supreme Court. That fact only exacerbates the sheer lawlessness of the Administration's conduct.

Neurosis as the National Character

The prevailing wisdom holds that when it comes to American foreign policy, the strong, tough, powerful, courageous people are pro-Bush conservatives (the protective and paternal John Wayne’s among us), and the weak-willed, fearful, knee-buckling effeminate cowards are anti-Bush liberals.

Anyone who sees the world that way really ought to immediately read this post by Digby in its entirety, which insightfully demonstrates that the principal emotion which accounts for the appeal of George Bush -- and which really lays at the center of most of the issues dominating the Bush-loving world-view – is fear. Fear of the terrorists. And it’s not merely garden-variety fear, but a form of wild and neurotic paranoia which overwhelms rational judgment and comes to outweigh every other competing consideration.

Intense and limitless fear of terrorists has become the North Star of our country. Everything emanates from it, and we always look to it for guidance.

The debate over Bush’s warrantless and lawless surveillance of American citizens has illustrated the central role which this fear plays in virtually everything we publicly discuss, and it also highlights its disturbingly neurotic character. Those who argue that the President must be bestowed with unprecedented executive power to protect us have but one argument in their bag of tricks – fear of terrorists.

All of the conservative tough guys who strut around with their chests puffed out like John Wayne at high noon babble hysterically, like babies, when they tell us how frightened they are by terrorists. This week, we have seen one Bush-defending Republican after the next parade before the cameras shrieking that we MUST give up our freedoms because otherwise WE WILL DIE - THE TERRORISTS WILL KILL US!!!! As Russ Feingold pointed out, they have taken Patrick Henry’s demand of "give me liberty or give me death" -- what was the hallmark of the American character and its preeminent commitment to liberty – and turned it into a begging, needy plea to be saved by the all-powerful Government in exchange for giving up our liberties.

Terrorism is certainly a threat that ought to be aggressively confronted, but there are lots of other dangers to our safety and health, many of which are at least statistically more threatening. Contrary to the paralyzing fear which our nation’s politicians have whipped up in Americans, terrorism is hardly some incomparable and uncontrollable existential danger which ought to make us abandon every other concern and which floods every other priority. But that is how it is viewed and whined about by those with the greatest pretense to courage and strength.

An exchange between two commentators in a thread here a few days ago powerfully illustrated this dynamic. Rick, who writes the blog The Real Ugly American, is a hard-core conservative who is pro-war, pro-Bush and unabashed in holding himself out as a real warrior who wants to stand up to America’s enemies rather than flee. Jake is an anti-Bush, anti-war liberal. Rick defends Bush's warrantless surveillance of American citizens and Jake opposes it. Here is the short but quite representative exchange they had on that topic:

The Ugly American

No I do not think the FBI or any other police agency should conduct warrentless searches or surveilance in criminal matters. Which seems to be where you and Glenn are missing the point entirely. This is not a criminal matter. This is a war for the survival of our nation and modern civilization. The stakes could not be higher.

Jake

There are so many things to fear. Why pick terrorism? Why not tackle the issue rationally, with money and appropriate threats, and yes, even appropriate action . . .

When I read you, it is almost as if I am reading someone with a emotional illness, someone who will trade away rights for an ephemeral sense of "security". There is no security in this world, in this life. No president can give it to you, no God can give it to you. You are at risk of your life ALWAYS.

And terrorism is the least of your worries, not if you travel in a car much at all or live in a big city, or live in almost any third world country. . . . Trading away freedom for security is a fool's gamble. Eventually you will have neither.

Who is the one here who sounds rational, calm and fearless - and who is the one who sounds hysterical and scared? As the blogger Maha put it after excerpting some blindly trusting right-wing pleas to George Bush for protection:

Translation: I dont know what Bush is doing, but I want him to keep doing it to protect me from the terrorists.

This is not "resolve," people. This is cowardice. This is being a herd of frightened beasts stampeding off a cliff.

The apex - really, the zenith - of this shivering fear-wallowing was the exceptionally well-staged Republican National Convention, where one Republican speaker after the next shrieked that we must re-elect George Bush because only he can make us safe, only he can protect us from the terrorists. Without George Bush, we weak and vulnerable Americans are all doomed. Here is Zell Miller explaining how his fears drove him to support George Bush:

And like you, I ask which leader is it today that has the vision, the willpower, and, yes, the backbone to best protect my family?

The clear answer to that question has placed me in this hall with you tonight. For my family is more important than my Party.

There is but one man to whom I am willing to entrust their future and that man's name is George W. Bush. . . .

I have knocked on the door of this man's soul and found someone home, a God-fearing man with a good heart and a spine of tempered steel -- the man I trust to protect my most precious possession: my family.

Do people who live in suburban and rural Georgia - or Ohio - or Nebraska, really live in terrorizing fear of Al Qaeda? When they think about the threats they face to their lives and to their children, is an Islamic terrorist attack really at the top of the list - before violent crime and health risks and car accidents and obesity and abductions? If so, isn’t that just plainly warped?

In this view, George Bush is not just an elected official, but the Prime Protector of our families. Is our political process really driven by the view that our nation’s children are at risk from the immeasurable and incomparable threat of terrorist attacks from which only George Bush can save us? Is that really a healthy or rational way to go about constructing one’s life, let alone a nation?

The basic principle of risk is that risk equals impact times probability: "In professional risk assessments, risk combines the probability of a negative event occurring with how harmful that event would be."

But we don’t use that rational process - or any rational process - when engaging in a risk-assessment of terrorism. We hear politicians talk incessantly of radiological bombs smuggled inside of suitcases and detonated in Times Square and the impact of that scenario overwhelms us, without giving any thought to its probability, without comparing it to other risks, and without weighing it against or even thinking about the magnitude of the price we are willing to pay to minimize this risk.

In fact, it is essentially prohibited in good company to even raise the prospect that the threat of terrorism is exaggerated. It is an inviolable piety that there is no such thing as overstating the terrorism risk. One is compelled to genuflect to, and tremble before, the paramounce of this Ultimate Threat upon pain of being cast aside as some sort of anti-American, terrorist-loving loon.

A terrorist detonating a nuclear weapon in our cities? Why, what could possibly be worse than that? Nothing else matters! We must stop this at all costs.

There are all sorts of cataclysmic risks which could end not just our lives, but the lives of millions of people. The polar ice caps could melt and flood all of our cities, a risk which many scientists believe is a real and present and danger. The earth could collide with a meteor. A rapidly fatal and easily transmittable virus could seep into the population.

The mere existence of a fatal danger does not justify its singular domination over our lives. We don’t built walls around our cities to prevent polar ice cap flooding or stay in our homes to avoid contracting a fatal virus. That’s because we don’t live with the all-consuming goal of avoiding risks or simply preserving our physical existence. Quality of life matters, not just its continuation. Those are the only truths which can explain Patrick Henry’s preference for death over a life without liberty, or the willingness of people to fight and die in wars.

The simple and undeniable fact is that the number of people who have died in attacks by Islamic terrorists is minute by any measure – not just in America but around the world. Deaths from terrorists attacks have usually been measured by tens, rarely by hundreds, and when they work in their most spectacular and once-a-decade form, in the thousands. That pales in comparison to the death toll from literally countless other dangers, which kill substantially more people and will continue to do so.

How and why has this singular, thus far quite-manageable risk overtaken our entire national consciousness and caused us to bestow upon it an almost religious significance? We are we so eager to give up our freedoms in its name and to let it force us to radically restructure the governmental balances which the Founders of this country created and which for two centuries have served us so well?

Virtually every political issue and polarizing public controversy of any importance over the last four years has been generated by this fear. Whether it is the war in Iraq or debates over executive power and civil liberties or the use of torture or of secret prisons, terrorism fears lie at its core, and almost always determine its resolution. And, the 2004 Presidential election was about little else. Fear of terrorism has overtaken both our present and our future, and has drowned out virtually every other competing national aspiration and concern.

It is hard to imagine what a nation which is fueled by fear can actually accomplish. Most people know individuals in their lives who live this way on the micro-level – scared before they are anything else, pathologically risk-averse, always hiding and exerting excess caution lest something go wrong. In its more extreme form, it manifests as a life-destroying mental disorder. It is a pitiful image, and such people typically achieve very little. They cannot, because their fear is paralyzing.

A nation can suffer collectively from this same syndrome. A nation which is driven and shaped by fear is not a nation that will be bold or courageous, nor is it one that will make rational choices. Hysteria and paranoia have never been the American national character, but along with the founding principles of our Republic, the Bush era seems to be changing that, too.

Do Bush defenders place any limits on his "wartime" power?

Virtually no serious Bush defenders claim any longer that the Administration's warrantless eavesdropping on American citizens was authorized by FISA. To the contrary, FISA expressly prohibited such surveillance. Thus, to defend George Bush they must literally claim that the President has the right during "wartime" to violate Congressional statutes which relate to national security.

If Bush does not have the right to break the law, then -- aside from arguing that the Congressional authorization to use force in Afghanistan allowed warrantless eavesdropping on American citizens at home -- there is no defense to Bush's having ordered warrantless surveillance when FISA expressly prohibited that. Thus, many Bush defenders are now arguing, as they must, that a "wartime" President's power is so vast that it even includes this law-breaking power.

But the same individuals peddling this theory are simultaneously objecting quite vigorously to the notion that they are bestowing George Bush with the powers of a King. Bill Kristol and Gary Stevenson, for instance, called such claims "foolish and irresponsible" in the very same Washington Post Op-Ed where they argued that Bush need not "follow the strictures of" (i.e., obey) the law, and the President himself angrily denied that he is laying claim to a "dictatorial position" in the very same Press Conference where he proudly insisted on the right to eavesdrop on Americans without a warrant even though FISA makes it a crime to do so.

On its face, this theory that Bush as a "wartime" President has the right to break the law squarely contradicts their insistence that they are not advocating for monarchic rule. Once you advocate a theory that authorizes a President, even during times of an undeclared and endless war, to violate any Congressional laws he wants as long as he says -- with no judicial review possible -- that doing so is for the sake of our security, what possible checks or limitations on Presidential power are left?

This debate is about the President's claimed wartime power to break the law, not his power to order surveillance. Put another way, for those who want to advocate this theory of unilateral executive power -- but who then also want to deny that they are foisting upon America the King it never wanted -- the question that must be answered is this:

Are there any limitations at all on what the President can do under the guise of national security and, if so, what are they? And, given this theory of the "wartime" President who can violate the laws of Congress and who can ignore the courts in areas of national security, what legal foundation could exist to argue for any such limitations?

In what way are these wartime powers which we are hearing belong to George Bush -- including the right to ignore Congressional law -- not accurately described as the powers of a King? What defining powers of a King does George Bush lack under this framework? Bush defenders such as Bill Kristol pay lip service to the notion that their theory is "not an argument for an unfettered executive prerogative," but they never say what limits on executive power exist. That is because their theory, by its nature, posits that there are no limits -- not even the limits of law -- and they just seem unwilling to be honest and admit that. If that's not the case, they should tell us what limits they think exist on Bush's powers.

Over the last month, we have had raucous, seemingly democratic arguments over issues such as Congress' attempt to bar the use of torture and the renewal of the Patriot Act. But why do these debates matter at all? Who really cares what legislation Congress passes in these areas? After all, as a "wartime" President, doesn't Bush have the right to use whatever interrogation and surveillance techniques he wants, even if Congress expressly forbids them by law? If he can violate FISA at his whim, doesn't it follow that he can violate the McCain Amendment and exercise even those interrogation and surveillance powers which Congress refuses to renew under the Patriot Act?

And the same question applies to the Fourth Circuit's Administration-rebuking decision yesterday in the Padilla case -- who cares what the courts say about how the Government should treat "enemy combatants"? We are at war, say Bush's defenders, and Bush thus has the unfettered power to make those decisions himself without any interference from Congress or the judiciary. And if the Congress or the federal courts try to limit what he can do in these areas, doesn't he have the absolute right to ignore those limits and do what he wants anyway?

These are not academic questions. Quite the contrary, it is hard to imagine questions more pressing. We are at a moment in time when not just fringe ideologues, but core, mainstream supporters of the President -- not to mention senior officials in the Administration itself – are openly embracing the theory that the President can use the power and military force of the United States to do whatever he wants, including to and against U.S. citizens, as long as he claims that it is connected to America’s "war" against terrorists – a war which is undeclared, ever-expanding, and without any visible or definable end.

While Bush advocates have long been toying with this theory in the shadows, the disclosure that Bush ordered warrantless eavesdropping on American citizens in undeniable violation of a Congressional statute has finally forced them to articulate their lawless power theories out in the open. Bush got caught red-handed violating the law, and once it became apparent that no argument could be made that he complied with the law, the only way to defend him was to come right out and say that he has the right to break the law. So that debate -- over the claimed limitlessness of George Bush's power -- can't be put off any longer.

To their credit, there are Administration defenders who are nakedly honest about what they see as the limitlessness of George Bush’s "wartime" power. The Vice President, for one, certainly doesn’t seem to think there any such limits and has no problem saying so:

"I believe in a strong, robust executive authority, and I think that the world we live in demands it -- and to some extent that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them," Cheney said. In wartime, he said, the president "needs to have his constitutional powers unimpaired."

And here is former Bush 41 Attorney General William Barr simply admitting that he believes there are no limits on Presidential power in "wartime" -- which, of course, includes right now and will include, at a minimum, the remainder of Bush's term in office:

Yet Bush supporters believe that other branches should take a subsidiary role to the president in safeguarding national security. "The Constitution's intent when we're under attack from outside is to place maximum power in the president," said William P. Barr, who was attorney general under President George H.W. Bush, "and the other branches, and especially the courts, don't act as a check on the president's authority against the enemy."

It is true by definition that if -- as Cheney and Barr claim -- the "other branches" don’t "act as a check on the president’s authority," then nothing does. How is it possible for anyone who ascribes to this view to deny that they are advocating an "unchecked" monarchic President when what they are advocating is, by logical necessity, exactly that?

Adopting such a theory has grave and immediate consequences. Marvel at the expansive list of extraordinary powers we have been told -- just in the last few days alone -- the President possesses, and which nobody, neither Congress nor the judiciary, has any ability to stop or even to limit:

Bush can unilaterally declare war and then, based on his own unchecked declaration, exercise unlimited wartime powers. He can ask Congress to change laws he doesn't like and then violate them anyway if it refuses. He can strip American citizens of the legal protections of citizenship by unilaterally declaring with no trial that they are affiliated with terrorism. And, according to Circuit Judge Richard Posner yesterday, Bush can monitor the conversations not just of people suspected of having ties to Al Qaeda -- a limitation which Posner says is "too restrictive" -- but can (and, says Posner, should) expand that group without limits, even to include "[i]nnocent people, such as unwitting neighbors of terrorists, [who] may, without knowing it, have valuable counterterrorist information."

Once it is accepted that George Bush has the power to violate the laws of the United States (such as FISA) based on his status as a "wartime" President, there is no coherent way to claim that he is without the power to unilaterally impose still-greater intrusions. A theory that allows the President to violate Congressional statutes and which denies any role of judicial review is a theory which has no theoretical or legal ground for limiting the President’s conduct in any way during "wartime."

Thus, beyond this jarring list of impressive new powers which Bush defenders want to bestow on him, would not this new Bush-defending theory of the wartime Presidency also necessarily allow the President, in the name of national security, to do all of the following:

* Ignore Congressional refusal to renew certain provisions of the Patriot Act by exercising the powers under those provisions anyway;

* Violate the McCain Amendment's prohibition on torture by claiming that it unduly restricts his authority to conduct the war how he sees fit;

* Eavesdrop without a warrant on domestic telephone calls between American citizens, rather than purely international communications, and expand this surveillance to include the monitoring of e-mail and other computerized communications between American citizens;

* Secretly place cameras in the homes of American citizens to enable the monitoring to be visual as well as audio;

* Order the detention of editors and reporters of newspapers, such as the New York Times, which publish classified information which the President believes --
as he repeatedly said was the case with respect to the NSA disclosures -- harm national security and "help Al Qaeda";

* Rather than indefinitely imprisoning them, execute U.S. citizens who, like Jose Padilla, are declared based purely on Presidential decree to be "enemy combatants" of the United States;

* Arrest members of domestic anti-war groups and other opponents of the President's military policies – the same groups on which the FBI and Pentagon have been spying – on the ground that such groups impede the U.S. war effort and constitute a threat to national security.

The issue here is not the likelihood that this Administration would want to engage in such conduct. The question is whether, as certainly seems to be the case, these theories of the Unchecked Executive being wielded in defense of George Bush would permit this Administration -- or a future Administration -- to do these things. If so, that ought to be stated explicitly.

This Administration -- from Jose Padilla to its torture policies and now with its law-defying eavesdropping on American citizens -- has unmistakably signaled that it ascribes to theories of the wartime Executive which give the President powers at least as great as any other prior administration ever claimed. In case there is any doubt about this, the Administration has made clear that it believes that the Executive must get stronger and stronger:

Bush, with Cheney's encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

Sen. John E. Sununu (R-N.H.) said: "The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years."

And it is always worth remembering that the genesis for this theory, at least in this Administration, is the absolutist position laid out in the September, 2001 Yoo Memornadum:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

If a theory of limitless Executive power is not what Bush defenders are advocating, then it is incumbent upon them to articulate what limitations they believe exist on Presidential power in times of undeclared war. What is it that courts or Congress can do, if anything, to serve as a check on these powers?

Dick Cheney, William Barr, Bill Kristol, and Richard Posner all seem to think that the answer is "nothing." For those who want to claim that Bush had the authority as a "wartime" President to simply break the law with regard to warrantless eavesdropping on Americans, what other answer can they can coherently give?

Why is Bush "helping terrorists" by disclosing surveillance techniques?

Ever since The New York Times disclosed that the Bush Administration has been eavesdropping without warrants on the communications of American citizens, the Administration and its supporters have been indignantly accusing the Times and its sources of harming national security and "helping" Al Qaeda – as though terrorists didn’t realize that we were trying to eavesdrop on their communications until the Times ran this story.

Since this disclosure, Bush has repeatedly insisted that merely mentioning that we eavesdrop on terrorists is to do harm to national security -- claiming, for instance, in his Saturday speech that "our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." Similarly, in his Monday Press Conference, he said that "discussing this program is helping the enemy" because "the discussion about how we try to find them will enable them to adjust."

At the Press Briefing of Attorney General Gonzalez, an Administration aide -- when asked what possible harm could come from the Times article -- actually argued that the more we mention that we eavesdrop on terrorists, the more we help them: "The more we discuss it, the more we put it in the face of those who would do us harm, the more they will respond to this and protect their communications and make it more difficult for us to defend the nation."

But this same George Bush over the last two years -- as he campaigned for his own re-election and then as he campaigned for the permanent renewal of the Patriot Act – has repeatedly talked about, in detail, how we engage in surveillance against terrorists, how we try to eavesdrop on their communications, and what methods we have created and now use to monitor what they are doing and saying.

In fact, Bush not only repeatedly disclosed over the course of the last two years the fact that we eavesdrop on the telephone calls of suspected terrorists -- the same disclosure which, when made by the Times last week, has supposedly done such grave harm to national security -- but Bush has done so in far greater detail than anything the Times said. Worse, Bush has made similar public disclosures with regard to countless other intelligence and surveillance techniques which we use against terrorists.

Apparently, it’s perfectly acceptable to disclose all sorts of information about our intelligence and surveillance activities when the purpose is to help Bush win re-election or the passage of laws he wants, but it is traitorous and highly dangerous to disclose far less revealing information when the purpose is to expose illegal behavior by his Administration.

Here are but a few examples of George Bush passing on information about how we monitor terrorist suspects and thereby helping Al Qaeda to harm America:

George Bush, telling terrorists about how we use "roving wiretaps" to eavesdrop on their calls -Columbus, Ohio - June 9, 2005:

One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone.

The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses.

George Bush, in 2004, telling terrorists that we are engaging in notice-less "sneak and peak" searches of their apartments - Hershey, Pennsylvania, April 19, 2004:

The Patriot Act authorizes what are called delayed notification search warrants. I'm not a lawyer, either. (Laughter.) These allow law enforcement personnel, with court approval, to carry out a lawful search without tipping off suspects and giving them a chance to flee or destroy evidence. It is an important part of conducting operations against organized groups.

George Bush, alerting terrorists to changes in our techniques for eavesdropping on their cell phone calls - Baltimore, Maryland, July 20, 2005:

Before the Patriot Act agents could use wire taps to investigate a person committing mail fraud, but not specifically to investigate a foreign terrorist carrying deadly weapons. Before the Patriot Act, investigators could follow the calls of mobsters who switched cell phones, but not terrorists who switched cell phones. That didn't make any sense. The Patriot Act ended all these double standards.

George Bush, alerting terrorists to the fact that we are eavesdropping on their telephone calls - Baltimore, Maryland, July 20, 2005:

The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, or to track his calls, or to search his property.

George Bush, in 2004, telling terrorists that we monitor them by tracing their "money trails" - Hershey, Pennsylvania, April 19, 2004:

Before September the 11th, law enforcement could more easily obtain business and financial records of white-collar criminals than of suspected terrorists. See, part of the way to make sure that we catch terrorists is we chase money trails. And yet it was easier to chase a money trail with a white-collar criminal than it was a terrorist. The Patriot Act ended this double standard and it made it easier for investigators to catch suspected terrorists by following paper trails here in America.

George Bush, telling terrorists how the Government monitors their computer communications and obtains their e-mails - Columbus, Ohio, June 9, 2005:

Third, we need to renew the critical provisions of the Patriot Act that updated the law to meet high-tech threats like computer espionage and cyberterrorism. Before the Patriot Act, Internet providers who notified federal authorities about threatening e-mails ran the risk of getting sued. The Patriot Act modernized the law to protect Internet companies who voluntarily disclose information to save lives.

It's common sense reform, and it's delivered results. In April 2004, a man sent an e-mail to an Islamic center in El Paso, and threatened to burn the mosque to the ground in three days. Before the Patriot Act, the FBI could have spent a week or more waiting for the information they needed. Thanks to the Patriot Act, an Internet provider was able to provide the information quickly and without fear of a lawsuit -- and the FBI arrested the man before he could fulfill his -- fulfill his threat.

George Bush, detailing the threat priorities of the Homeland Security Department - Columbus, Ohio, July 20, 2005:

That's what Mike Chertoff recommended to me after the London bombings. In other words, he took a look at the situation and said, let's enhance our security and infrastructure points, and he raised the threat level.

We're widening the use of explosive detection teams and nearly doubling the number of rail security inspectors. We're targeting assets and resources to our infrastructure. We're accelerating the development and deployment of new technologies to rapidly detect biological, radiological and chemical attacks. That's what Mike announced last week. We're going to continue to make sure that we assess our weaknesses and strengthen our transportation systems.

George Bush, detailing security measures taken against threats to American seaports - Columbus, Ohio, July 20, 2005:

This is a gateway for foreign markets, which provides an opportunity and an important challenge for us. And we recognized that early. We've made dramatic advancements in port security since September the 11th. We've established strict new safety rules for both domestic and international shipping, and we have taken new steps to identify and inspect high-risk cargo. And that's important for our citizens to understand.

We launched what we call the Container Security Initiative, to screen American-bound containers at more than 35 foreign ports so we can identify dangerous cargo before it reaches our shore. Doesn't that make sense? It seems like it does to me. In other words, we're stationing Custom folks overseas and we're working with places that ship goods to us, to inspect cargo there so we don't burden our ports.

And, for good measure, here are the Editors of National Review -- before the Times ever breathed a word about the President's eavesdropping "program" -- damaging national security and helping Al Qaeda by telling terrorists that we monitor their phone calls, use roving wiretaps, examine their library records, use "sneak-and-peak" searches of their apartments, and read their e-mails. Doesn't President Bush and National Review realize that "discussing th(ese) program(s) is helping the enemy" because "the discussion about how we try to find them will enable them to adjust"?

There aren't very many things more likely to "harm national security" than using the term "national security" as a cynical political weapon used to depict political opponents as traitors and to intimidate others away from disclosing illegal conduct by the Government.

The joys of Iraqi democracy . . . for Iran

When it comes to Iraq, I know I have been beating the same (Iranian) drum for awhile now, but it really continues to amaze that the Administration and its supporters are celebrating an event – the Iraqi election – which is well on its way to creating the absolute worst possible situation for the United States: another fundamentalist Islamic theocracy, this one closely allied with Iran.

Patrick Cockburn, Middle East Correspondent for the British newspaper The Independent, reports (h/t The Peking Duck):

Iraq is disintegrating. The first results from the parliamentary election last week show the country is dividing between Shia, Sunni and Kurdish regions. Religious fundamentalists now have the upper hand. The secular and nationalist candidate backed by the US and Britain was humiliatingly defeated. . . .

Islamic fundamentalist movements are ever more powerful in both the Sunni and Shia communities. Ghassan Attiyah, an Iraqi commentator, said: "In two and a half years Bush has succeeded in creating two new Talibans in Iraq." . . .

Iran will be pleased that the Shia religious parties which it has supported, have become the strongest political force. . . .

Even our Ambassador in Iraq is incapable of putting the sort of giddy happy faces on the Iraqi election which Administration officials here have tried (as usual) to impart:

The US ambassador in Baghdad, Zilmay Khalilzad, sounded almost despairing yesterday as he reviewed the results of the election. "It looks as if people have preferred to vote for their ethnic or sectarian identities," he said. "But for Iraq to succeed there has to be cross-ethnic and cross-sectarian co-operation."

Conservative pro-war and pro-Bush blogger Bill Quick at Daily Pundit put it this way:

Does Bush - or anybody else - think he can put the genie of a fully armed and aroused Shiite majority in control of the Iraqi government by entirely legitimate, democratic means, back in the bottle? Because that is what it is going to take to appease the Sunnis. And no matter how hard Bush tries, it's not going to happen.

In fact, if Bush doesn't stop screwing around, what he's going to end up with is what he fears most: both the Shia and the Sunni in revolt against the "American occupation" amidst a full-blown civil war. And never fear: the harmless, "impregnable" Iranians will be more than happy to aid their Shia religious brethren to victory in that battle.

I wonder if the Iranian mullahs also have little get-togethers where they stick their kids’ fingers in purple ink and make them walk around like that all day to celebrate the Iraqi elections. If they don’t, they should.

"Temporary" government powers almost never are

Kevin Drum points out that if we use a loose definition of "war" to determine the scope of Executive power (i.e., conflict against a hostile external force), rather than its traditional definition (i.e., an all-out war against a battlefield enemy), then the U.S. has been at "war" more or less continuously since 1941 (counting the Cold War), and will be at war without interruption for the next decade at least. That means that the "war" exception to our Constitutional liberties which many believe exists is not an "exception" at all, but is really the permanent state of things in the United States.

Along those lines, Todd Crowell, an author and former Senior Writer for Asia Week (who currently writes the Asia Cable blog on Asian political affairs), e-mailed me the following article he authored last summer which describes the creeping evolution and expansion of Malaysia's Internal Security Act, a law authorizing indefinite detention by the Government which was enacted as an "emergency" measure to contain a communist insurgency in 1960. That insurgency was defeated long, long ago, and the law not only remains, but has been used aggressively over the last 45 years by the (democratically elected) Malaysian Government to indefinitely detain and punish all sorts of political opponents of the Government.

When liberties are eroded, the process is gradual and incremental, and usually ends up at a destination which supporters of each incremental erosion don't foresee and wouldn't support. And once governments get their hands on ostensibly temporary and "emergency" new powers, those powers, with little debate or resolution, usually become permanent.
______________________

A Cautionary Tale
By Todd Crowell

Malaysia’s Internal Security Act (ISA) was originally enacted in 1960 during the "Emergency," the communist insurgency that engulfed the newly independent country in the 1950s and 1960s. That rebellion petered out long ago, but the law is still on the books, proof that "emergency" measures tend to linger long after the emergency has passed because they are useful to the authorities.

Originally aimed at communist insurgents, the Internal Security Act, which provides for unlimited detention without trial, has been used against all kinds of "security" threats, even common criminals, like forgers, and against political activists, student leaders, union bosses and journalists, anyone who challenges authority
Malaysia’s experience is a cautionary tale for the U.S., since, in the wake of the terrorist attack on New York and Washington on Sept. 11, 2001, the U.S. has been moving stealthily toward its own version of detention without trial, an internal security act in everything but name.

The prime example is Jose Padilla, an American citizen suspected of wanting to plant a "dirty bomb" in an American city, who has now been held in a naval detention center in South Carolina for three years without trial as an "enemy combatant." . . . .

Since 1960 more than 3,500 Malaysians have been held under the law that permits detention for up to two years without trial and allows the Home Minister to renew the detention order indefinitely. One detainee, Loh Meng Liong, was held for 16 years before he was freed in 1982. There is no maximum limit.

The Malaysian experience also demonstrates that torture and unlimited detention go hand in hand. Former ISA detainee Tian Chua, who is now information chief for the opposition New Justice Party, recalled at a recent gathering of former detainees, "We were routinely tortured during interrogations, stripped naked, beaten with broomsticks and threatened with rape."

Former Deputy Prime Minister Anwar Ibrahim was detained under the ISA as late as 1998 for opposing the P.M. He was later tried in court, convicted of sodomy and corruption and served six years in jail until his released last year. Ironically, he had been detained under the ISA as a young politician, protesting treatment of peasants.

The September 11 attacks on the U.S. gave the ISA a fresh lease on life since it provided former Prime Minister Mahathir Mohamad justification for more arrests. About 100 members of the banned Jemaah Islamiah organization, which is believe to have inspired, if not directed the October, 2002, Bali bombings, were detained under the act.

Washington used to regularly condemn Malaysia’s (and Singapore’s) use of the unlimited detention as a violation of human rights. One doesn’t hear Washington complaining so much these days. Wonder why. Shortly after the terror attacks, President George W. Bush thanked Mahathir for Malaysia’s efforts against terrorism.

It should be emphasized that Malaysia is not some tin-pot dictatorship like Zimbabwe. It is a functioning democracy, which is, in many ways, a model for a moderate Muslim-majority state. We should be so lucky if Iraq turned out to be half as stable, prosperous and democratic as Malaysia is today. That’s why Malaysia’s experience is pertinent to the U.S. today.

White House efforts to intimidate and threaten the press

Unless the media finally does its job of aggressively making the public aware of what is really going on with this lawless surveillance scandal -- of how patently dishonest the Administration is being in its explanations -- this scandal will die a quick and inconsequential death, drained of life by the now routine appeals to national security, scare-mongering over Al Qaeda, and the deliberate clouding of extremely clear issues with twisted legalisms. The Administration’s facially false defenses are designed to make people become bored, confused, and of the belief that this is just another partisan lawyer fight in Washington which they can’t decipher and don’t really need to try.

One can’t blame them for adopting this tactic because it has worked so well for them so many times. And there is one principal reason why it has worked – because our passive, frightened, corrupted media has allowed it to work.

All of the protests and shrieking and Congressional investigations over this scandal will be for naught if the media continues to be plagued by the disease of passively conveying Government lies under the guise of journalistic balance. The media is intended to be an adversary to the Government. Its function is to express scepticism over Government claims and to expose dishonesty and corruption among our nation’s highest officials. Only the media can do this, and if it shies away from this function, our system of Government simply will no longer work.

The dangers arising from media abdication of its duties are particularly acute where, as here, one party controls all three branches of the Federal Government and there are no other options for an adversarial force to serve as a counterweight to the Government. The reason that George Bush is so cavalier about spewing nonsensical rationales to justify his lawless conduct is because the media has decided that its role is to uncritically and "objectively" convey -- rather than scrutinize and investigate -- the Government’s positions. But providing a forum for Governmental statements was never the intended role of the media. Instead, it was to serve as an opposition force to the Government. As long-time Miami Herald columnist Leonard Pitts recently noted:

As Thomas Jefferson put it: "I should not hesitate for a moment to prefer the latter." Jefferson knew that a free and adversarial press was the people's best defense against the excesses of their government and a fundamental building block of healthy democracy.

The prospect of having to rely on the media to stand up to the Bush Administration’s lawlessness when it has failed so miserably and for so long to fulfill its central function is not encouraging, to put it mildly. But there is no other choice. And the Administration realizes this – that if it can keep the media in check, it can operate free of constraints and can literally do whatever it wants. Again, according to Jefferson:

"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

Can there be any doubt that the Administration is engaged in a blatant intimidation campaign against anyone who stands up to it and exposes its wrongdoing? The President and his aides have taken every occasion to attack and threaten those responsible for exposure of this lawless behavior, and the media is quite aware of these threats. Yesterday, in his Press Conference, Bush basically accused whoever finally spoke out about this lawless surveillance on American citizens of committing treason:

There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy. . . .

You've got to understand -- and I hope the American people understand -- there is still an enemy that would like to strike the United States of America, and they're very dangerous. And the discussion about how we try to find them will enable them to adjust. . . . But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.

As a result, one can almost hear the fear of the defensive New York Times reporters as they describe these White House threats:

Mr. Bush strongly hinted that the government was beginning a leak investigation into how the existence of the program was disclosed. It was first revealed in an article published on The New York Times Web site on Thursday night, though some information that administration officials argued could be useful to terrorists had been omitted.

And surely the media is well aware of the accusations by Bush's closest political allies that the Times aided terrorists against the U.S. by disclosing the Administration's illegal eavesdropping, nicely supplemented by calls from Bush's supporters to hunt down those responsible for these disclosures and prosecute them as traitors.

Threats against the media of this sort are really threats on every American citizen, on every liberty that we have, beginning with the right to know what our Government is doing, to hear unfettered criticism of it, and to have its corruption brought to light. This is thuggish behavior of the worst and most transparent sort – designed to stifle dissent and to punish those who expose corruption and illegality on the part of the Administration.

And the threats have worked. The Times was aware of the Administration’s behavior for a full year but kept its mouth shut because the Administration told it to, despite there being no conceivable harm to national security from its disclosure. We learned yesterday that when the President learned that the Times was finally going to share its discovery with the public, the President "summoned" the Publisher and Editor of the paper to the Oval Office to insist that they not do so -- something which the Times was too afraid to tell us about, and so we had to learn about it from Newsweek instead.

And there is still substantial information about this surveillance which has not been disclosed. Who has been eavesdropped on? How many American citizens were subjected to this surveillance without a warrant? Who decided which Americans would be eavesdropped on and what standards were used to make that determination? And what is the real reason the Administration decided that it could not engage in this surveillance within the incredibly flexible and permissive parameters of FISA?

The only real question is whether the media and Americans generally are going to continue to stand by, passively and afraid, and blindly trust the Administration’s assurances that it is breaking the law for our own good. The most significant and revealing statement from President Bush’s Press Conference yesterday was the one he snidely issued in response to the question of why he saw a need to operate outside of FISA when eavesdropping on American citizens. He refused to answer the question and said this:

And without revealing the operating details of our program, I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties. And we're guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well
as the inspector general, monitor the program, and we're briefing Congress.

This is a part of our effort to protect the American people. The American people expect us to protect them and protect their civil liberties. I'm going to do that. That's my job, and I'm going to continue doing my job.

The President is telling us that we should not question what he is doing because he has assured us that he is not doing anything wrong and that is all we need to know. These assurances do indeed lead many of his followers to insist that this is proof that he is acting properly. But this is the assurance of a Big Brother that he knows what is best for us, not a substantive response of an elected official who seems himself as accountable to anyone. It is also a warning that we must not question him, but simply trust him, as he secretly goes about breaking the law while he assures us that there is nothing to worry about.

This illegal eavesdropping is not, of course, an isolated incident. It is but a small manifestation of the Administration’s broader view that the President has the power -- by virtue of this indefinite, undeclared, increasingly vague "war" – to unilaterally determine what the Government can and should do without any checks or balances at all. That is the definition of tyranny, and that is what this Administration is expressly trying to achieve.

Each time the Administration gets away with acquiring power of this sort, they become more emboldened in this project and then further escalate their assault on the notion of an Executive constrained by the rule of law. This time, the President has been caught red-handed, with his hand in the jar of unchecked Executive power, and he has boldly decided that he will simply admit what he has done and dare anyone to do anything about it.

He gave a speech in which he proudly declared what he did and defiantly vowed to continue, and yesterday, he could not have been any more jocular or patronizing with the media as they questioned him about these matters. One can’t really blame him for taking that carefree attitude, given that the only force capable of stopping him – our nation’s media – has never done a single thing during his entire Administration to indicate that they can or will do anything meaningful at all.

But if they don’t -- if the media does not radically and rapidly change the way it operates and how it sees its function as a result of this scandal -- it is not hyperbole to say that many of the most basic and long-standing principles of our republic will be undermined, perhaps irrevocably. The Administration is now alternatively rubbing the media’s face in this scandal and threatening them with criminal investigations and imprisonment if they don’t fall into line. The moment of truth for the media has arrived, and one cannot exactly be confident in the prospect that they will rise to this challenge.

A compendium of White House incoherence regarding its lawless surveillance

The most disturbing aspect of this surveillance scandal is not the lawless eavesdropping by the White House on the communications of American citizens, as self-evidently disturbing as that is. More disturbing than even that is the fact that the rationale and explanations provided by the President and his Administration to justify this conduct are so transparently dishonest and insultingly nonsensical that it is clear that we do not have anything close to the real story about what went on here.

The scandal here is not just the illegal surveillance itself, but the fact that the Administration is so plainly lying about what they did and why. Short of smoking gun evidence that someone is lying, which almost never exists, the most compelling proof of dishonesty is when someone’s explanation for their behavior is internally inconsistent and incoherent. Complex lies are difficult to create, particularly when they are subject to rigorous scrutiny, and inconsistencies and incoherence are the hallmarks of such lies. When one finds those in an explanation for what someone did and why, it is almost always proof of the falsehood of the explanation.

The explanations given by the Administration with regard to their warrantless surveillance on Americans simply don’t make any sense. It’s not that they’re unpersuasive or unlikely. It’s that these statements are just plainly incoherent on the most basic logical levels. The Administration engaged in illegal conduct and now is lying about what they did and why, and multiple facts prove that:

(1) President Bush claimed yesterday in his Press Conference that the only American citizens whose communications were subject to warrantless eavesdropping by the Government were "people with known links to al Qaeda and related terrorist organizations."

But at the same time, there have been at least hundreds of people, if not more, who have had their communications invaded by this warrantless surveillance program, and the Administration claimed that one of the reasons why compliance with FISA was impractical was because they had so many people they wanted to eavesdrop on that FISA couldn’t accommodate all of the requests.

But those two claims, taken together, would mean that the Administration has known of the identity and location of hundreds of people, at least, inside the U.S. who have known ties to Al Qaeda but has not arrested them or detained them in any way – instead, they simply eavesdropped on their conversations under this surveillance program but otherwise left them roaming free.

This is an Administration which has incarcerated U.S. citizens in military prisons without charging them with a crime, or even allowing them access to a lawyer, based on suspected associations with Al Qaeda which were tenuous at best. Individuals who have even distant or theoretical and vague connections to Al Qaeda have been detained, arrested and prosecuted in large numbers.

The idea that the Federal Government has known of hundreds of American citizens, if not more, who have actual associations with Al Qaeda – and therefore have been subject to this warrantless surveillance – but not arrested or prosecuted, is just obviously false. Why would the Administration know the identity and location of hundreds of people within the U.S. who are affiliated with Al Qaeda or with Al Qaeda and not arrest them?

Doesn’t this fact, by itself, make conclusively clear that large numbers of innocent American citizens who have nothing to do with Al Qaeda have been subjected to this warrantless eavesdropping? Either that is true, or the Administration has known of the identity of hundreds of people with Al Qaeda connections inside the United States and simply allowed them to remain free. It is simply incredible on its face to claim that this many people inside the U.S. have been subjected to this surveillance while simultaneously claiming that all of them have ties to Al Qaeda.

(2) As many others have noted, the sole justification furnished by the Administration for why it needed to engage in surveillance outside of FISA – as the President put it yesterday in his Press Conference: "We've got to be fast on our feet, quick to detect and prevent" – is so false as to be laughable. FISA was intended, and is structured, to allow warrantless surveillance when the necessity for immediate eavesdropping requires it. Section 1805(f) expressly permits immediate surveillance without a warrant for up to 72 hours, and the law therefore cannot be said to even theoretically impede immediate surveillance. It expressly allows emergency surveillance.

This is really the heart of the matter in terms of whether there was any good faith at all motivating the Administration’s warrantless eavesdropping. Unless the Administration can identify some coherent reason why compliance with FISA would impede legitimate surveillance -- and no such reason has even arguably been provided -- it is as plain as can be that the Administration has not provided its real motive for eavesdropping outside of the authorization of this law.

(3) The Administration claims that its good faith is demonstrated by the fact that it briefed Congressional Democrats as to what it was doing, thereby obtaining their tacit support. Leaving aside the dispute over how much the Administration actually disclosed to them, the fact that these Congressional Democrats were barred by law from even discussing this program with their staffs, let alone publicly objecting to it or taking steps to stop it, renders this defense patently absurd.

Some of the Congressional leaders who were briefed, such as Sen. Rockefeller, did privately object to this program – both on the ground that it seemed lawless as well as on the ground that he was told too little about it to even know what was being done. But sending that secret, impotent, truly pitiful letter was all Sen. Rockefeller or any other Congressional Democrat could do, because they would have been acting illegally had they done anything else.

Indeed, some supporters of the President are now calling for the imprisonment and execution of any the member of Congress who was responsible for bringing this program to light. The President himself has made clear that he wants the responsible leaker aggressively prosecuted by the Justice Department, even if the leaker was one of the Congressional leaders who was briefed. Yesterday, in his Press Conference, he basically accused whoever finally spoke out about this program of committing treason:

There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy. . . .

You've got to understand -- and I hope the American people understand -- there is still an enemy that would like to strike the United States of America, and they're very dangerous. And the discussion about how we try to find them will enable them to adjust. . . . But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.

Thus, to hype the fact that Congressional Democrats remained silent even after they were briefed, as the Administration and its enablers are doing (THE PRESIDENT: "We have consulted with members of the Congress over a dozen times . . . There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you" ), while simultaneously urging that anyone in Congress who failed to remain silent be criminally prosecuted, is so transparently dishonest that it defies belief. The Administration forced these Congressional Democrats to remain silent and are now using that forced silence as evidence of their approval of this program. That reasoning is appallingly corrupt.

(4) The Administration is claiming that it was given authority to engage in warrantless eavesdropping outside of FISA by the Congress when the Congress authorized force in Afghanistan. But as was astutely pointed out yesterday, Attorney General Gonzalez – in response to the obvious question as to why the Administration failed over the last 4 years to seek changes in FISA if it thought FISA was inadequate – replied that they tried to do that but then stopped when they realized that they couldn’t get the changes they wanted from Congress:

GONZALEZ: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

To assert with one breath that Congress gave authority to eavesdrop on American citizens outside of FISA, only to then acknowledge with the other breath that they tried to get Congress to give this authority but realized that Congress would not, is about as contradictory as it gets. Just as a matter of basic logic, shouldn’t Gonzalez’ admission that the Administration tried but failed to get approval from Congress for this warrantless surveillance preclude their claim that Congress approved it?

Explanations as incoherent and facially incredible as these are simply not what one hears from someone who is telling the truth. Whatever it was that motivated the Administration to eavesdrop outside of the extremely permissive FISA parameters, and whatever it is that they did when engaging in this surveillance, still remain to be discovered. The only thing that is clear at this point is that the Administration’s explanations tell us nothing about what really went on and why.

Our Iraqi allies got some votes, too

There is a glaring and grave contradiction between, on the one hand, this war-justifying claim made by President Bush in the second paragraph of his Sunday night Iraq speech . . . . :

This election will not mean the end of violence. But it is the beginning of something new: constitutional democracy at the heart of the Middle East. And this vote -- 6,000 miles away, in a vital region of the world -- means that America has an ally of growing strength in the fight against terror.

. . . . and these facts about the Iraqi election, after 90% of the votes have been counted, as reported by this morning's New York Times:

Early voting results announced by Iraqi electoral officials on Monday, with nearly two-thirds of the ballots counted, indicated that religious groups, particularly the main Shiite coalition, had taken a commanding lead. The secular coalition led by Ayad Allawi, the former prime minister, had won only meager support in crucial provinces where it had expected to do well, including Baghdad.

The front-runner among Sunni Arab voters was a religious coalition whose leaders have advocated resistance to the American military and have demanded that President Bush set a timetable for withdrawing the American military from Iraq.

These religious Shiite parties which will be governing Iraq, to say nothing of the Sunni religious coalitions which are bubbling over with anti-Americanism, are highly unlikely to be "allies" of the U.S. in any respect. Quite the contrary, as the natural and long-standing ally of the Iraqi Shiites is the Shiite mullahs ruling Iran who, according to the Administration, are hardly our "allies" in "the fight against terror," but instead form one of the two remaining members of the Axis of Evil.

In addition to the embarrassingly low vote total for the secular coalition led by Allawi, the ex-Prime Minister and CIA favorite who was handpicked by the U.S. to rule Iraq, another U.S. ally and neocon favorite in Iraq had an even more embarrassing showing:

Another prominent secular candidate, Ahmad Chalabi, the former Pentagon favorite, won less than a half of 1 percent of the vote in Baghdad, possibly denying him a seat in the Council of Representatives.

Secular parties, and even more so, parties led by candidates who have been associated with the United States, barely showed up on the electoral radar. The perception that a candidate is pro-U.S. seems to be a fatal albatross in Iraqi elections, an ominous sign which bodes quite poorly for President Bush's assurance that these elections will give rise to an American "ally" in Iraq.

All of those wild celebrations over the Iraqi elections to which we were subjected last week (and which were mercifully cut short by revelations of lawless spying on American citizens by the White House) would be far more appropriate and understandable taking place in the governmental halls of Tehran.

The new "constitutional" excuse for warrantless eavesdropping on Americans

Now that the Administration itself has acknowledged that FISA cannot be used to justify its warrantless eavesdropping on the communications of American citizens (since that law expressly bars exactly that surveillance), supporters of the Administration are frantically searching around for new defenses to justify the Administration’s behavior (criticizing the Administration or acknowledging wrongdoing by it is not, of course, an option).

One of the most steadfast and stalwart Bush lovers, Hugh Hewitt, thinks he found a Supreme Court case which proves that the Administration has the right to eavesdrop on American citizens without a warrant. The case he waves around as proof that the Administration did nothing wrong is United States v. United States District Court for the Eastern District of Michigan et al, 407 U.S. 297 (1972) -- a case which plainly accomplishes the opposite of Hewitt's goal.

The case being hyped by Hewitt is actually one where the Supreme Court ruled that the Executive Branch is constitutionally prohibited from engaging in warrantless eavesdropping on the domestic communications of American citizens. Put another way, that case held that American citizens have a constitutional right under the Fourth Amendment which bars -- rather than permits -- the Government from eavesdropping on their conversations without a warrant.

To cite this case as though it is helpful to the Administration’s entitlement to eavesdrop without a warrant or that the President has inherent authority to order such surveillance – let alone to say, as Hewitt does, that this case"is where the debate over the president's executive order ought to begin and end"-- is so self-evidently false that one is tempted to ignore this preposterous rationale lest one dignify it as something to take seriously.

But we have seen too many times that there is no argument too absurd to be seized upon by those whose prime mandate is to defend George Bush, and sure enough, Hewitt’s new theory, overnight, is all the rage among Bush defenders, with Hewitt's post being hailed as dispositive proof that Bush did nothing wrong when he ordered the Government to eavesdrop on American citizens without a warrant.

This Supreme Court case ruled on the constitutionality of the Nixon Administration’s warrantless eavesdropping on the conversations of domestic groups suspected of plotting terrorist attacks inside the country, including an alleged bombing of a CIA office in Michigan. The Court defined the constitutional question it was deciding in the very first paragraph:

The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. (emphasis added).

The Court’s answer: the Constitution prohibits the President from eavesdropping on the communications of American citizens without a judicial warrant:

The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (1963).

The independent check upon executive discretion is not [407 U.S. 297, 318] satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U.S. 89, 96 (1964). (emphasis added).

This is because, said the Court, the Fourth Amendment’s protection against unreasonable searches and seizures bars the Government from eavesdropping on our conversations without a warrant every bit as much as it bars the Government from knocking down our doors and searching our homes without a warrant:

Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U.S. 505 (1961).

Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any `technical trespass under . . . local property law.'" Katz, supra, at 353. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards (emphasis added).

The constitutional requirement that a warrant be obtained before the Government can engage in such surveillance is not some petty bureaucratic formality invented by process-obsessed lawyers. To the contrary, it is the only means available for ensuring that the Government does not abuse this extremely potent power for its own dissent-punishing goals. The Court thus emphasized:

the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed (emphasis added).

And lest anyone think that this is some abstract, lawyer’s argument, this Supreme Court case bizarrely relied upon by Hewitt should disabuse anyone of that notion, too:

The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on 2511 (3):

"As I read it - and this is my fear - we are saying that the President, on his motion, could declare - name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. . .

Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review.

By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur (emphasis added).

Believe it or not, this is the case which Hugh Hewitt actually offered up last night as proof that the Administration, independent of statute, has the constitutional authority to eavesdrop on American citizens without bothering to obtain a warrant – a case which clearly said exactly the opposite of that assertion, as clearly as it could say it. It is true that this case considered the issue of communications occurring domestically involving a domestic group, rather than internationally (i.e., an American citizen communicating with someone outside the country as part of an international group), but the rationale is identical: except with narrowly defined exceptions not applicable here, the Constitution bars the Executive from eavesdropping on the conversation of American citizens without a warrant.

Thus, as Hewitt’s "defense" demonstrates, the Bush’s Administration’s warrantless surveillance of American citizens not only violates Congressionally acted legislation which bars such surveillance, but also is barred by long-standing constitutional doctrine holding that the core guarantee of the Fourth Amendment protects Americans from exactly such intrusions.

Claiming the right to break the law

Despite the uproar this weekend among right-wing bloggers who were insisting (and are still insisting) that the Administration’s warrantless eavesdropping on American citizens complied with FISA, there is actually no real controversy about this because no reasonable ground exists for disputing that the Administration violated that law – as even the Administration itself is now acknowledging.

Put another way, Administration lovers were so desperate to defend their leader at all costs -- they begin with the pre-ordained resolve to defend Bush no matter what and thereafter search for a rationale to prop up that goal -- that they latched onto an argument this weekend which is so facially wrong that even the Administration itself repudiates it as a grounds for defending the President’s conduct.

As was predicted yesterday, the Administration is not defending itself by claiming that its warrantless surveillance complied with FISA. It cannot claim this because FISA so plainly prohibits warrantless searches against both terrorist suspects and American citizens, and the Administration deliberately eavesdropped on both without obtaining a warrant. It is just that simple.

For that reason, Condoleezza Rice went on Meet the Press yesterday (h/t Firedoglake) and did not even attempt to argue that the Administration complied with FISA. To the contrary, Rice said that FISA was now obsolete (even though it is still sort of the law) and, based on that view, justified the Administration’s violations of FISA. Rice claimed that this warrantless eavesdropping on America citizens was authorized not by FISA, but by so-called unspecified "additional authorities that [the President] has under the Constitution and under other statutes":

MR. RUSSERT: The law is very clear that a person is guilty of an offense unless they get a court order before seeking to wiretap an American citizen. Why did the president not get a court order? . . .

SEC'Y RICE: The Foreign Intelligence Surveillance Act, exactly. FISA, which came out of 1978 at a time when the principal concern was, frankly, the activities of people on behalf of foreign governments, rather stable targets, very different from the kind of urgency of detection and thereby protection of a country that is needed today. And so the president has drawn on additional authorities that he has under the Constitution and under other statutes.

Rice was obviously pre-programmed with the phrase "additional authorities that he has under the Constitution and under other statutes" because she repeated it multiple times like some hypnotic mantra but clearly had no idea what it meant:

MR. RUSSERT: What are the other authorities?

SEC'Y RICE: Tim, again, I'm not a lawyer, but the president has constitutional authority and he has statutory authorities.

Thus, Rice specifically rejected the claim advanced by some Administration fans this weekend that FISA could be used to authorize the Administration’s surveillance. Unlike its slavish defenders in the blogosphere and elsewhere, even the Administration could not muster the audacity to claim that it complied with FISA when ordering this surveillance on American citizens. As this morning’s New York Times article explained:

But the law is specific in banning any searches without warrants on Americans except in extraordinary circumstances, like within 15 days of a formal declaration of war, said David D. Cole, a Georgetown University law professor who specializes in national security law.

The Bush administration has not cited any of those exemptions for the domestic eavesdropping program. The White House and other defenders of the program maintain that the president has the authority to allow such searches in the interests of national security.

Rice also destroyed the absurd claim advanced this weekend that FISA (which permits warrantless eavesdropping on agents of foreign states for up to a year) authorized Bush's surveillance of suspected terrorists because terrorists are "state agents." She said the exact opposite was true when explaining why the Administration could no longer be bothered with complying with that law:

SEC'Y RICE: Tim, the circumstances of FISA relate to rather more stable targets, people who are principally acting on behalf of governments. These are stateless networks of people who communicate and communicate in much more fluid ways and where the urgency of detecting where the importance of not letting it happen is far greater than I think anything that would have been envisioned in 1978, before we saw the twin towers and the Pentagon go down.

Of course, for 3 years we have been told that terrorist suspects aren't entitled to the protections of the Genvea Convention precisely because they are not state actors but, instead, are stateless enemy combatants. That didn't stop the Administration defenders this weekend from taking the exact opposite position in order to argue that FISA authorized Bush's surveillance, an argument which even Rice made clear was wrong. But that's the level of intellectual dishonesty to which Administration defenders are willing to sink to defend the President no matter what he does.

And that leads to the broader point here, one which is much more important than the issue of whether the Administration violated FISA, and it is this: There is a sizeable portion of the population which really is willing to defend the President no matter what he does and will almost never criticize his conduct (except to argue that it is insufficiently conservative or uncompromising). When a story like this is revealed, their first reaction is instinctively to defend the President without even knowing why they are doing that.

When Bush is accused of wrongdoing, they immediately look around for defenses -- any defenses at all -- that they can find, latch onto them the minute they see them, and then start wielding them without even considering whether those reasons are persuasive or right. There were countless examples in the blogosphere over the weekend where one blogger posted some half-baked legal theory justifying Bush’s surveillance and, within minutes, other Bush-loving bloggers were linking to it and saying how it proves that Bush’s behavior really was legal and proper. And that intellectual whoring in allegiance to George Bush (rather than to the country) repeats itself over and over outside of the blogosphere as well.

That’s because the objective isn’t to determine whether the Administration really did act illegally. The point is to defend the President no matter what he does and then find justification for his behavior after the fact.

And it is this slavish devotion to authority and to the President as Supreme Leader which the Administration is counting on. They have now advanced a theory of Presidential power so radical and extreme that it really is not hyperbole to call it tyrannical. The power the Executive is claiming for itself is the power of a monarch. And the President has now obviously decided to proudly proclaim his right to exert this power and is daring anyone to stop him. As Digby put it:

The press simply has to step up. This is serious shit; it's not about ancient land deals in Arkansas or lying about infidelity. This isn't about "sending a message." It's real and its dangerous. This democracy is dying the death of a thousand cuts and in this world of too much information, over stimulation and endless distractions we must depend upon the press to wake up and start telling the American people what they know. The president is asserting a new interpretation of the constitution and unless this country makes it very, very clear that we will not stand for it, we are in deep trouble. This won't happen unless the media does its job and tells the country the truth:

The president broke the law, admitted it and says that he will continue to do so. He did this because he believes that the president has the right to break any law he chooses in his capacity as commander in chief.

Does that sound like America?

Now that the Administration has signaled what it wants its followers to say (i.e., not that the Administration complied with FISA, but that it didn’t have to), they will, like dogs sniffing for food, immediately switch trails and start echoing that defense. The problem - the real danger - is that they will never for a moment consider whether the Administration really has broken the law here, and whether that is something that ought to be opposed and condemned by Americans. They begin with the premise of George Bush as infallible leader, the beacon of integrity and goodness, and nothing gets in the way of that view.

That's why the Administration can actually say explicitly that it violated FISA but that it had good reason for doing so. And the image of George Bush as Our Protector and Good Father is so ingrained in the minds of so many that they even trust him to break the law in order to protect us -- for our own good. Some of them are even calling for the imprisonment and execution of those in the press and elsewhere who committed treason by bringing this illegal behavior to light, a threat raised oh-so-subtly by the President himself when he accused the media of acting improperly and helping our enemies by reporting on this lawless surveillance.

This story is going to fade away in a couple of days, just like all of the other "scandals" have. And the envelope of unchecked Executive power will be pushed further and further. Each time it is pushed successfully, it is a guarantee that it will be pushed again. And although one would like to be able to say that there is something visible that appears ready and able to put a stop to it, it is very difficult to say what that would be. The compliant, lazy, access-desperate press? The tepid, intimidated and powerless Democrats? Republicans who finally decide that they have had enough? A judiciary that has been packed for the last five years with judges who revere Executive power with still more judicial reverence to come?

To recite the possibilities is to illustrate the anemic opposition which the Administration continues to face as it institutionalizes its radical theories of executive power one fleeting scandal at a time.

Purposely misquoting FISA to defend the Bush Administration

Defenders of the Bush Administration are resorting to outright distortions and deliberate falsehoods about the Foreign Intelligence Security Act (FISA) in order to argue that the Administration's warrantless eavesdropping on U.S. citizens complies with the mandates of that statute. To do so, they are simply lying -- and that term is used advisedly -- about what FISA says by misquoting the statute in order to make it appear that the Administration’s clearly illegal behavior conforms to the statute.

This is a real case study in how total falsehoods are disseminated by a single right-wing blogger who is then linked to and approvingly cited by large, highly partisan bloggers, which then cause the outright falsehoods to be bestowed with credibility and take on the status of a conventionally accepted talking point in defense of the Administration.

A blogger named Al Maviva wrote a staggeringly dishonest post which he said was based upon what he called a "little legal research" concerning FISA. He then proceeded to deliberately mis-quote the statute in order to reach the patently false conclusion that "the President probably does have the power to order NSA to monitor suspects, without a warrant, in terrorism cases."

This post was then cited and linked to, in some cases with approval, by several large conservative bloggers, and thereafter wormed its way up to the conservative motherload of Internet traffic, Instapundit, who approvingly linked to it. I have no doubt that -- thanks to law professor Instapundit and these others Administration defenders -- tens of thousands of people (at least) have now read this "legal analysis" defending the legality of the Administration’s conduct which is based on a glaringly unethical distortion of the language of FISA.

We’re not talking here about an unconvincing or erroneous legal argument. This is something different entirely – it is an argument based upon a fundamental misquoting of the law in question designed to make illegal behavior look legal.

FISA is a relatively straightforward statute and the issue here is a simple one. The statute begins with § 1801, which in Section(a) defines various types of "foreign powers" on whom the Government can eavesdrop.

Under Section(a), subsections (1)-(3) essentially refer to foreign governments or groups expressly controlled by a foreign government.

Subsections (1)-(3) do not include non-governmental terrorist organizations, such as Al Qaeda. Such groups – i.e., terrorists organizations – are referenced in subsection (4) only.

The next section of FISA -- § 1802 -- allows warrantless eavesdropping for up to one year (provided other procedures are complied with). But it does so only for "electronic surveillance [that] is solely directed at communications" among foreign powers referred to by subsections (1)-(3) -- but not subsection (4). Thus, this authorization to conduct warrantless searches is expressly limited to communications among subsection (1)-(3) foreign governments but does not even arguably extend to subsection (4) terrorist groups.

But that does not stop Al Maviva from arguing that the Administration was allowed to engage in warrantless eavesdropping on terrorist groups pursuant to this section. To argue this, he purports to quote the authorization language of § 1802, but omits from his quotation the part of the statute which entirely negates his argument -- namely, the part which limits this authorization to subsections (1)-(3), but excludes subsection (4).

Compare Al Maviva’s quotation of the statute with what the statute actually says. Here is Al Maviva, setting forth his "legal analysis" and pretending to quote from the statute:

In addition to existing restrictions under Executive Order 12333 and other internal limits, FISA states in 50 U.S.C. 1802 that, "the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 . . ." (emphasis added).

So you read that "legal analysis" and you are supposed to think: "Oh, wow - under FISA, the Administration is allowed to engage in warrantless surveillance for up to one year of anyone referenced in section 1801, which includes terrorist organizations. So Bush really did nothing wrong after all. I can’t believe how the Bush-hating MSM is making it seem like he broke the law when he clearly obeyed the law." And that is exactly what Bush worshiping bloggers said when passing on this "legal analysis," along with others who misleadingly and partially quote section 1802 to make it seem as though it renders the Administration's conduct legal.

But here is what that section of the statute actually says, when quoted correctly and fully:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

When pretending to quote the statute, Al Maviva simply omitted the language making clear that the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4).

Thus, contrary to the only point made in Al Maviva’s "legal analysis" to defend the Bush Administration, there is no basis whatsoever for asserting that FISA authorizes the Administration to eavesdrop on individuals suspected of working with terrorist organizations. Such eavesdropping unquestionably requires a warrant or compliance with the 72-hour emergency procedures of section 1805.

The only way to argue that the Bush Administration’s warrantless eavesdropping on suspected terrorists, including U.S. citizens, complied with the law is by misquoting the law in order to change its requirements.

That’s exactly what Al Maviva did, and his patently dishonest argument was then given wide circulation by Instapundit and others, and the "substance" of the argument is now undoubtedly being used by those who don’t know any better, and by those who do, to absurdly claim that there is a reasonable argument to make that the Administration complied with the law. There is no such argument to make -- at least not when the law is quoted accurately.

If the Defend-Bush-No-Matter-What crowd needs to defend Bush here, that's fine, but at least they ought to be intellectually honest about what they are defending. The Administration most plainly did not comply with FISA. It deliberately chose to violate FISA based on the Administration's view, grounded in John Yoo's Memorandum, that it has the right to exert unchecked Executive power in times of even undeclared war, meaning that it has the right to violate Congressional statutes.

It is not in reasonable dispute that the Administration violated FISA. It plainly did. The statute explicitly requires judicial warrants for eavesdropping on alleged terrorist suspects except where there is an emergency need to eavesdrop before one can be obtained, in which case the Government is authorized to eavesdrop for up to 72 hours without a warrant.

Here, the Administration decided that, notwithstanding those statutory requirements, it would eavesdrop on terrorist suspects (at least) without obtaining warrants, and the President thus issued an order "authorizing" such warrantless surveillance. Put simply, then, the Administration engaged in surveillance in clear and deliberate violation of FISA.

Thus, those who want to defend the Administration therefore have to argue -- as the Administration itself has done -- that the Administration has the right to violate Congressional statutes. There is no good faith basis for arguing that the Administration complied with FISA, which is why those who are trying to do so have to distort the law when pretending to quote from it.

UPDATE: Glenn Reynolds, to his credit, appended an update to his original post which linked to the Al Maviva "legal analysis." In his update, Reynolds included a link to my post here and noted my argument that Al Maviva "misquotes the statute." (John Cole at Balloon-Juice has done the same).

But Reynolds also then asserts, with no analysis whatsoever (other than a meaninglessly unspecific notation that "people fail to appreciate how limited their protection against government surveillance" is) that it is "not so clear" that the Administration's warrantless surveillance violated FISA. But FISA, at least in this regard, is not complicated and, as demonstrated here, it is crystal clear that the Administration's warrantless eavesdropping violated its mandates. That is the only reason an Executive Order was needed from Bush to the NSA. To believe that it's "not so clear" that the Administration violated FISA is simply to allow one's pro-Administration desires to overwhelm one's judgment.

UPDATE II: The notion advanced by Bush defenders that the Administration's warrantless surveillance on American citizens complied with FISA is so plainly wrong that not even the Administration is claiming this to be the case. Instead, the Administration is acknowledging that this surveillance was not authorized by FISA but is insisting that it has the power to eavesdrop on American citizens without a warrant even though this Congressional statute bars it from doing so.

The New York Times' complicity in Bush's illegal eavesdropping

The more I think about the revelation yesterday that the Bush Administration eavesdropped on the communications of American citizens in clear and deliberate violation of the Foreign Intelligence Security Act -- based on its expressly stated view that the President is not bound by the law in times of even undeclared war because the President is the law -- the more I think this will be the most lingering and significant story of the Bush Administration, and perhaps its undoing. It almost has to be, for the reasons I set forth in the post below.

But almost as staggering is the fact that The New York Times knew about these illegal acts on the part of the Administration for a full year and kept its mouth shut until yesterday because the Administration asked it to. There is absolutely no justification at all for the Times covering up these illegal acts on the part of the Government for a full year.

It is not, of course, uncommon for newspapers to learn about government secrets but refrain from publishing those secrets where their disclosure would: (a) serve no journalistic purpose and promote no public pood and (b) endanger national security. If, for instance, a newspaper learns about imminent troop movements in a time of war, almost every newspaper would refrain from publishing that information, as it should, because there is no value in publishing it and its dislcosure would endanger American soldiers.

But neither of those circumstances which justify concealment of information by a newspaper -- namely, the lack of a legitimate public interest or harm to national security -- even arguably applies here.

The significance of this story is not that the Bush Administration was eavesdropping on the communications of suspected terrorists -- of course it was doing that. The huge story is that it was doing so illegally by failing to first obtain judicial approval and/or complying with FISA procedures for when a warrant is unnecessary. And, worse, the Bush Administration engaged in these illegal acts not accidentally, but based on its extraordinary and plainly tyrannical view that it is not bound by Congressional restrictions when it acts with regard to the nation's national security.

It is not even theoretically possible that disclosure of the illegal nature of the eavesdropping could endanger national security such that the Times was warranted in helping the Administration to conceal this patent law- breaking. Everyone, presumably including terrorists, assumed the Administration has been eavesdropping on conversations of those whom it suspects of engaging in terrorism.

That the Government eavesdrop is not news because the Government is permitted to eavesdrop provided that it complies with the provisions of FISA. Just like the Government is not permitted to come to your house and break down your door and search through your house unless it has a warrant from a court allowing it to do so, so, too, is the Government barred from eavesdropping on such conversations unless it first obtains judicial approval or complies with FISA provisions for those circumstances in which it need not do so.

The Times would never publish a story simply reporting that the Government has been eavesdropping on suspected terrorists because to do so is simply to state the obvious. The newsworthy component of the story here is not that the Government was doing these things, but that it was doing them illegally and in violation of FISA because it believes it has the right to do so. What possible justification exists for the Times to sit on that story for a year, allowing the Government to deliberately engage in illegal behavior against American citizens while the Times says nothing?

Once the Times finally re-discovered its journalistic purpose and published this story yesterday, they apparently realized that they never had any excuse for waiting a year to do so. In response to inquiries from Salon's Tim Grieve as to why it finally published this story, the Times issued a statement from Executive Editor Bill Keller which said this:

"Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well known.

The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the N.S.A. has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority -- not the need for a robust anti-terror intelligence operation -- that prompted debate within the government, and that is the subject of the article."

No kidding. As a matter of basic logic, there was never a national security threat from disclosing this information because what is being disclosed is not that the Government is engaging in certain intelligence-gathering but that it is breaking the law to do so. Thus, the only "threat" arising from disclosure of this information would be to the political and legal interests of the criminals in the Administration breaking this law knowingly and deliberately. Notwithstanding the story sold by the Administration to the ever gullible Times, no conceivable threat to American national security could exist from disclosure.

Marvel at how easily our press is manipulated and intimidated by a Government invoking scary phrases like "damage to national security" in order to force the media to keep its mouth shut when it uncovers evidence of serious criminality on the part of our highest government officials. That we have an Executive Branch which actually claims that it is entitled to wield unchecked power is disturbing enough. That we have a media -- which was intended to be the Fourth Estate protecting us from exactly these sorts of Government excesses -- that is too stupid, lazy, and/or compliant to do anything about it, even when it finds out about it, makes it all that much worse. Much, much worse.

The complicity of the Times in the Administration's deliberately and proudly illegal behavior makes the Jayson Blair and Judy Miller fiascos look like child's play in the ever-growing pantheon of journalistic disgraces.

Bush's unchecked Executive power v. the Founding principles of the U.S.

Underlying all of the excesses and abuses of executive power claimed by the Bush Administration is a theory of absolute, unchecked power vested in the Presidency which literally could not be any more at odds with the central, founding principles of this country.

As this morning’s New York Times analysis put it in describing the rationale behind the Adminstration's violations of the Foreign Intelligence Security Act, pursuant to which it has been secretly spying on the commuincations of American citizens without judicial warrants:

A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.

From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority.

As the Times reports, Bush's claim to absolute executive power has its origins principally in one document:

a Sept. 25, 2001, memorandum [by the Justice Department’s John Yoo] that said no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."

The notion that one of the three branches of our Government can claim power unchecked by the other two branches is precisely what the Founders sought, first and foremost, to preclude. And the fear that a U.S. President would attempt to seize power unchecked by the law or by the other branches – i.e., that the Executive would seize the powers of the British King – was the driving force behind the clear and numerous constitutional limitations placed on Executive power. It is these very limitations which the Bush Administration is claiming that it has the power to disregard because the need for enhanced national security in time of war vests the President with unchecked power.

But that theory of the Executive unconstrained by law is completely repulsive to the founding principles of the country, as well as to the promises made by the Founders in order to extract consent from a monarchy-fearing public to the creation of executive power vested in a single individual. The notion that all of that can be just whimsically tossed aside whenever the nation experiences external threats is as contrary to the country’s founding principles as it is dangerous.

It cannot be said that the Founders were unaware of the potential for national emergencies and external threats. They engaged in a war with the British which was at least as much of an existential threat to the Republic as those posed by 9/11 and related threats of Islamic extremism. Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws.

Among recent Republican Administrations, this theory of the unchecked President is not new. Digby recalls Richard Nixon's endorsement of it, and the theory came to life in the Iran-Contra scandal, where the Reagan Administration unilaterally deemed it necessary to U.S. national security to arm the Nicaraguan contras and then asserted for itself the power to circumvent the law enacted by the Congress which prohibited exactly that.

But the situation we have now is far more egregious, and far more dangerous, because the Administration is not even bothering to pretend now (as the Reagan Administration at least did) that the Executive acts undertaken really did adhere to Congressional intent, or alternatively, to the extent that such acts violated Congressional mandates, the acts were simply the by-product of overzealous and rogue officials who broke the law without the knowledge or approval of President Reagan.

The Bush Administration’s position now is almost the opposite of that posture, in that the Administration is expressly claiming that the President does have the right to violate laws of Congress because his executive power is absolute and thus cannot be restricted by anything. And rather than applying this theory of unchecked executive power to a single case (as the Reagan Administration did in Iran-contra), the Bush Administration has arrogated unto itself this monarchical power as a general proposition, applicable to each and every issue which can be said to relate, however generally, to this undeclared "war" against terrorism.

This view of the Presidency – which now exists not just in odious theory but in real, live, breathing form vested in George Bush – is precisely what the monarchy-fearing Founders insisted should never occur and, with the enactment of the U.S. Constitution, would never occur.

This absolute power claimed and enthusiastically exercised by George Bush violates not just specific Constitutional limitations, but the core principles of the Constitution: that we are a nation of laws not men; that each branch shall be "co-equal" to the others and checked and limited by the other two; and that the people shall retain ultimate power by vesting in them the right to enact supreme laws through the Congress which shall bind all other citizens, including the President.

That the Bush Administration’s claim to unchecked and supra-legal Executive power is squarely inconsistent with basic constitutional principles is conclusively demonstrated by James Madison’s Federalist No. 48, which is devoted to the principle that liberty cannot be maintained unless each branch remains accountable and subordinate to the others:

It was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.

Similarly, Madison, in Federalist No. 51, defined the central objective for avoiding tyranny as ensuring that no branch be able to claim for itself powers which are absolute and unchecked by the other branches:

What expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . .

In particular, Madison emphasized in Federalist 51 that liberty could be preserved only if the laws enacted by the people through the Congress were supreme and universally binding:

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.

Hamilton made the same point in Federalist No. 73. where he emphasized:

"[t]he superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, . . . "

To the Founders, the defining characteristics of the tyrannical British King was that he possessed precisely those powers which the Constitution prohibits but which the Bush Administration is now claiming it can exercise. From Federalist 70:

In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred.

Based on the fear of such unchecked executive power, Federalist 69 emphasized that unlike the British King, who did possess the absolute power to nullify duly enacted laws , the sole power possessed by the President to negate a law enacted by the Congress -- including with regard to matters of national security and war -- is the President’s qualified (i.e., override-able) veto power:

Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. . . .

The one [the American President] would have a qualified negative upon the acts of the legislative body; the other [the British King] has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority.

An extremely potent demonstration that the Bush Administration’s claim to unchecked Executive Power is fundamentally inconsistent with the most basic constitutional safeguards comes from one of the unlikeliest corners – Antonin Scalia’s dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004):

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.

Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.

As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

Both the Bush Administration’s theory of its own unchecked power and its indiscriminate and aggressive use of that power to violate Congressional law contradicts every constitutional principle created to ensure that we do not live under unchecked Executive tyranny. If the President is allowed to get away with secretly decreeing that he can violate the law and then doing exactly that, then there really are no remaining checks on Executive power -- and we have, without hyperbole, arrived at the very definition of tyranny.

The country has, more or less with a quiet complacency, stood by while this Administration imprisoned American citizens with no due process, while the Administration sanctioned torture and then used it to extract "evidence" to justify those detentions, and while the Administration exploited the fear of terrorist acts to bestow onto itself unprecedented powers.

If the naked assertion of absolute power by the Bush Administration -- and the use of that power to eavesdrop on American citizens without any judicial review -- does not finally prompt the public regardless of partisan allegiance to take a stand against this undiluted claim to real tyrannical power, then it is impossible to imagine what would ever prompt such a stand.

UPDATE: The more one thinks about the fact that the New York Times was aware of this patently illegal behavior for a full year and concealed it from the public because the Administration told it keep quiet, the more disturbing that complicity becomes.

What exactly do Iraqi elections prove?

Pro-war bloggers aren't just engaging in dreadfully predictable and self-congratulatory chest-beating war dances over the Iraqi election yesterday. They are doing that, of course, with a crazed and smug giddiness characteristic of a cheerleading squad for a triumphant college football team. And they are even digging up all of those poetic paeans to Purple Fingers which were so solemnly paraded around the last time the Iraqis had elections, on January 30 -- the date many of them proclaimed had immediately become the Greatest and Most Significant Day Ever.

But beyond this gloating self-satisfaction, war bloggers have apparently decided that this election, and the reaction to it by war critics, proves once and for all that war critics realize now that they were wrong. Apparently, war critics didn't say enough about the elections yesterday, and this silence has not gone unnoticed! To the war bloggers, this proves that the war critics have lost the debate over the Iraq War and just can't face up to it, so they are pretending that the proof of their defeat -- this election -- simply doesn't exist.

This "idea" was first put forward yesterday by one pro-war blogger, Kevin the SoCal Pundit, who trumpeted the fact that "Liberal Blogs Choose Silence over Iraqi Elections." According to Kevin, this is because war critics want to see violence and death in the Middle East and so they can't stand when good things happen:

[A]ny sign of progress on peace in the Middle East plays poorly in the Leftosphere. . . .Meanwhile the Iraqi people, Coalition military and support forces as well as The White House have reason to gloat. The elections appear to be a smashing success. Regardless of who wins what in the end, FREEDOM and DEMOCRACY are the order of the day today. And screw the liberal blogs for not giving a damn.

This post unleashed an all-out orgy of pro-war taunting over this "silence." We were thus subjected to a run-down of non-Iraq issues which "liberal blogs" had the nerve to talk about yesterday instead and were then told how that proves that war critics only care about violence in Iraq ("Perhaps some sites are waiting for results. Or a really nasty explosion or something"). That was followed by a decree that war critics somehow "lost" yesterday ("BIG LOSERS of the day so far: Howard Dean, Jack Murtha, Nancy Pelosi, Harry Reid and the rest of the reactionary, fuddy-duddy leadership of the Democratic Party"), which then gave rise to an uncontrollable infection of run-of-the-mill gloating -- all based on this same, ostensibly revealing silence.

Left unsaid amidst all of this sloganeering and melodramatic genuflecting to purple ink is what, exactly, these elections are supposed to have proven in the greater debate over the Iraqi War. Aside from the emotional manipulation which these elections afford – nobody raised in the U.S. and instilled with an appreciation for democracy can help but feel some pleasure for Iraqis as they vote to choose their leaders – exactly what arguments advanced by war critics are supposed to be undermined by these elections, and what pro-war justifications are bolstered? The answer is none.

Pictures of smiling Iraqis with purple ink on their fingers is no more of an "argument" in favor of the war than pictures of the incinerated corpses of Iraqi civilians is an "argument" against the war. Both tactics are equally crude and slothful attempts to emotionally manipulate rather than do the work of making substantive arguments. Anyone with doubts about this should see the wildly manipulative post of pro-war hero Captain Ed where he stands tall at high noon and proclaims: "Look the people with purple-stained fingers in the eye and tell them that. I double-dog dare you."

Pro-war bloggers are almost always silent whenever the latest Iraqi police station is blown up or guests at another Iraqi wedding party are slaughtered by American bombs. Why is that silence less revealing than the relative silence of war critics about the elections? George Bush recently revealed that he believes that 30,000 Iraqi civilians have lost their lives as a result of this war -- 30,000 Iraqi civilians dead-- and I don’t recall reading much in pro-war precincts about that. Is it a persuasive argument to say to pro-war advocates in response to their celebrations: "Look at the Iraqi civilians with the loved ones incinerated by U.S. bombs and tell them that. I double-dog dare you."

As moving as it may be to watch a country vote for the first time, causing that to happen is simply not why we went to war, spending billions upon billions of dollars and losing thousands of American lives (and counting) in the process. The fact is that bringing democracy to a country imprisoned by tyranny is not even close to being a sufficient rationale which justifies invading that country and waging war. And the dispositive proof of that proposition is the cliched but nonetheless true point that there is an endless list of countries suffering under a tyrannical hand and nobody (other than perhaps Mark Steyn and Michael Ledeen) thinks we should invade them all and change their governments. Indeed, many of those non-democratic tyrannies, including hardened dictators in the Middle East, are our allies and will continue to be for the foreseeable future.

What will determine whether this war was worth fighting is whether it advances the interests of the United States. That was the argument that sold this war to most Americans and to its Congress, and that is the reason we fought this war. The war’s purpose was not to help Iraqis; that was to be an incidental benefit used to take some of the hard edges off our invasion of a country which did not attack us, and the fact that we were taking out a reprehensible dictator was something which could be used to resolve doubts in favor of regime change if the question of whether to wage this war was otherwise a close call.

But the rationale for the war was not to help Iraqis. It was to help Americans -- by reducing or eliminating threats to American citizens and American interests. These elections say absolutely nothing one way or the other about whether we are moving towards, or away from, the central goal of this war.

Democratic elections are not inherently helpful to American interests. Elections are what produced the intensely anti-American Hugo Chavez in Venezuela, not to mention the Chancellorship of Adolph Hitler. Iran itself has had parliamentary elections -- some legitimate and some not, and yet it remains the greatest Middle Eastern threat to American interests.

What matters is not whether there are elections, but the type of government which those elections produce. No matter what else can be said about this war, nobody will be able to reasonably claim that the waging of this war was a prudent decision if Iraq ends up being governed by a Shiite cleric theocracy which is, in turn, loyal to and controlled by the Shiite mullahs in Iran. And yet that is not just a possibility at this point, but one of the likeliest outcomes of our invasion. Iran’s influence in Iraq’s internal affairs is vast and growing, and an election which is certain to hand the Iran-loving religious Shiite parties great power is hardly an antidote to that severe danger. The opposite is true.

Moreover, the January 30 elections -- which identically caused war bloggers to sneer that war critics "decided to mark this historic day by hiding under their bedcovers" -- did not make Iraq safer or more stable. Quite the contrary. Since that magical day in January, Shiite-Sunni sectarian tensions have worsened to the brink of a full-scale civil war; Al Qaeda’s new Iraqi branch launched its deadliest and most complicated terrorist attack in Jordan; government-sponsored death squads have become the norm; and, worst of all, America’s real enemy in that region, Iran, has increased and consolidated power inside Iraq. These elections yesterday would be rightfully celebrated if the January 30 elections had brought the U.S. closer to its goals in Iraq, but few people can claim that to be the case.

These elections are not an argument in the pro-war contingent’s favor. At best, they are a neutral (albeit emotionally satisfying) event which affords the opportunity to use symbols and manipulation in lieu of substance in order to try to prove that this war is turning out to be a good idea after all. But the election does no such thing. It does not reflect one way or the other on whether our occupation of Iraq is helping or hurting U.S. interests. All of the pro-war celebrations don't change that fact. It just obscures it for a few days.

Since that is the only real issue that matters in the ongoing debate over this war, it should not be a surprise that the only people yelling about these elections are the ones who want to dance around, cynically exploiting the emotions of yesterday, all in pursuit of some sort misplaced and unwarranted sense of vindication. The U.S. is no closer to achieving its goals in this war today than it was last week or last month, and there are compelling arguments to be made that it is, in fact, further away from those goals than ever.

Propaganda about the Patriot Act

John at Powerline has a post up about the Patriot Act which can only be described as being full of falsehoods. The Patriot Act is one of those issues which, due to its complexity and legalistic nature, is susceptible to being propagandized, and deceivers like John have long been doing exactly that. The Patriot Act was borne of this sort of propaganda, beginning with its creepy, Orwellian name, followed by the virtual unanimity with which it was enacted by a Senate which did not even have time to read it.

The first falsehood spewed out by John is found in the first sentence of his post:

Senate Democrats say they will launch a filibuster to prevent the extension of the Patriot Act, which expires at the end of the year. . . . We've come a long way, obviously, since 2001, and the Democrats appear to be betting on the popularity of their antiwar position.

The idea here is, as usual, to make it appear that Democrats are trying to advance their standard subversive, pro-terrorist agenda, with their traitorous weapon of choice this time being their opposition to the Patriot Act.

The only problem with this statement is that it's false, because there is great discomfort with multiple provisions of the Patriot Act among substantial numbers of civil liberty-minded Republicans, several of whom have already pledged to support a filibuster. The very Washington Times article which John cites to makes this abundantly clear:

Four Republicans -- Sens. John E. Sununu of New Hampshire, Larry E. Craig of Idaho, Lisa Murkowski of Alaska and Chuck Hagel of Nebraska -- said yesterday that they will join Democrats in opposing the legislation, even helping block a final vote on its passage.

Well beyond these four GOP Senators, there is a contingent of the conservative wing of the Republican Party which is quite libertarian and they are very bothered by several of the more intrusive provisions of the Patriot Act. From hard-core conservative ideologue Bob Barr to long-time conservative activist Paul Weyrich, conservatives have been, along with Democrats like Feingold, in the forefront of opposing renewal (or favoring repeal) of certain provisions of the Patriot Act.

Here is Weyrich and American Conservative Union Chairman David Keene:

Increasingly, conservatives we talk to outside Washington express real concern about providing Federal law enforcement with more power in the name of national security. They fear that the "tools" the government seeks to protect us from our enemies could eventually be used to circumscribe our own liberties. Given the maneuvering over H.R. 3179 [the legislation for renewal of the Patriot Act], they have good reason for concern.

This should not come as a surprise. Although most conservatives have forgotten it ever since they took over control of the Federal Government, distrust of the Federal Government and a desire to limit its powers have long been central tenets of conservatism. Conservatives certainly seemed to remember these anti-federal-government principles when it was Janet Reno who running the Justice Department, but, to their eternal shame, they quickly discarded those "principles" when John Ashcroft assumed the reins, at which point the Federal Government couldn't have enough power.

There are, however, still some principled conservatives around who realize that conservatives won't always be running the Federal Government and who therefore still adhere to their principles concerning the limitations on federal police power (which just also happens to be one of the most central precepts on which our country was founded; indeed, a limited Federal Government was one of the Founder's most important promises made in order to extract the states' consent to the formation of the United States). The notion peddled by John that opposition to the Patriot Act is a Democratic anti-war phenomenon is just a deliberate and transparent falsehood.

John's next egregiously false claim comes in the second sentence of his post:

If they are successful, a wall between intelligence and law enforcement agencies will once again prevent them from sharing information about terrorist activities within the U.S.

This is rank deceit. The opponents of full-scale renewal of the Patriot Act have repeatedly stated as clearly as something can be stated that there are numerous provisions of the Patriot Act which are desirable and necessary, including the provisions enabling law enforcement agencies to share information.

Sen. Russ Feingold is the face of the Democratic opposition to the Patriot Act, as he -- to his everlasting credit -- was the only one of 100 U.S. Senators who withstood the intense pressure to vote for the Patriot Act while the World Trade Center was still laying in rubble in downtown Manhattan. This is what Feingold himself said about the Patriot Act this week when explaining his intent to filibuster:

Often proponents of the Patriot Act respond to critics by pointing to non-controversial provisions that I support, like those that helped to facilitate information sharing between law enforcement and intelligence agents as proof of why the Patriot Act is so valuable. I agree that the Patriot Act contains important provisions, and no one is arguing that they should be allowed to expire or even that they should be subject to a new sunset provision.

The filibuster isn't about eliminating the information-sharing provisions which John is falsely claiming will be repealed if the filibuster proponents prevail. Even Patriot Act opponents want those provisions, which is why they included them in the version of the bill which they favor.

Saying that these filibuster proponents want to eliminate these provisions, when the opposite is so plainly true, can't really be described as anything other than making false assertions for the purpose of distorting someone's viewpoint.

The provisions which are being targeted by those fighting against renewal of the Act include those authorizing the FBI to obtain quite personal and confidential records about any American citizen, whether they are suspected of terrorist activities or not, and without even having to obtain judicial approval, simply by asserting that the records are "sought for" a terrorist investigation. Also objected to is the provision which drastically expanded the power and scope of the odious National Security Letters which have been used to with startling frequency and in truly disturbing ways since the Act's enactment.

There is a real debate to be had about how much power the Federal Government should be entrusted with in order to investigate Americans and visitors to the U.S., as well as what the proper balance is between our need for heightened security against terrorism and our desire to preserve basic civil liberties. But proponents of the Patriot Act have never demonstrated any desire to have that debate, opting instead for propaganda, falsehoods and deliberate issue distortions of the type dripping out of John's post.

This is your brain on partisan auto-pilot

Bush defender Ann Althouse manages in one short paragraph to display severe confusion about basic principles of logic that is rather startling coming from a law professor an actual adult:

"He is struggling to make sure this is defined as a win whenever he gets out...... so he's trying to keep the definition of victory to be something he can meet."

[ALTHOUSE]: So says Mara Rudman, who was a deputy national security adviser under President Bill Clinton. She's quoted in a WaPo piece that analyzes Bush's recent Iraq speeches. I like the way the quote (unwittingly) implies a corollary: The Democrats are struggling to make sure that, whatever happens, it will count as a loss for the President.

This quote from Rudman implies no such thing, and the proposition which Althouse created out of whole cloth and then attributed to Rudman is not even remotely the "corollary" of Rudman's statement. (Althouse's use of "unwittingly" there is, of course, designed to make clear how much more clever than Rudman is Althouse, who is able to detect the underlying malignant motives of this silly little ex-Clinton national security official even as she tries haplessly to conceal them.)

Rudman's observation is really quite uncontroversial, and is undeniably true. The primary emphasis coming from the White House now is focused on being able to credibly depict the inevitable reduction of our troop presence and ultimate withdraw from Iraq as a victory rather than a defeat. As the Post article which contains the Rudman quote points out:

The vow to "settle for nothing less than complete victory" satisfies Bush's desire to project Churchillian resolve, a strategy in keeping with White House theory that public support for a war depends on whether Americans believe they will win. The "stand up, stand down" formulation, by contrast, is intended to signal that the United States will not remain forever enmeshed in a bloody overseas conflict fueled by sectarian enmity.

And there isn't anything wrong per se with that perception-based objective. It is exceedingly important that the U.S. not be perceived as running away from Iraq because it has become too violent, expensive, and unmanageable, even if that is, in reality, why we leave before our real goals (whatever those might be) are accomplished.

It is precisely this need to be percevied as withdrawing victors which accounts for the repetitive, zelaous Administration emphasis on the slogan "total victory," with so little focus on what that actually means in substance:

The 35-page "National Strategy for Victory in Iraq" released as Bush began his speaking tour outlined three tracks to victory: political, security and economic. On the security track, the document stated that the objective is "to develop the Iraqis' capacity" to wage a campaign "to defeat the terrorists and neutralize the insurgency" -- suggesting separate standards of victory against foreign Islamic radicals and homegrown Iraqi insurgents, without defining the difference between "defeat" and "neutralize."

Even worse, this desire to depict victory is what causes the Administration to essentially ignore the question of how we are possibly going to solve worsening problems in Iraq which are mutually exclusive with "victory" there -- little things, like an elected Shiite government which is sure to become a close ally of our primary Middle Eastern enemy, Iran, as well the growing Al Qaeda branch which is operating quite freely and effectively in that country.

The reality is that there are substantial problems in Iraq that we can do little to solve, beginning with Iranian influence over Iraq's internal affairs. As a result, between the two choices we have -- reducing our presence and admitting defeat, or reducing our presence and attempting to credibly claim victory -- Rudman was simply pointing out, not criticizing, that the Administration's focus now is on creating an apperance of an American victory by modestly re-defining our goals. Not only is she not criticizing the Administration for this, she expressly says that the Administration is doing exactly what it ought to do in this regard:

If I were in his shoes, I would be trying to do the same," said Mara Rudman, a deputy national security adviser under President Bill Clinton and now a Middle East scholar at the Center for American Progress.

But Althouse saw the words "Clinton" and "Iraq" in the same sentence, and her brain has apparently been programmed to rest comfortably in some sort of instinctive auto-pilot mode which causes it, when it sees those words together, to automatically spit out: "The Democrats are struggling to make sure that, whatever happens, it will count as a loss for the President."

Any serious person recognizes that our presence in Iraq presents some extremely formidable and difficult obstacles to overcome if we are to leave there with anything other than a leftover disaster. The "corollary" to that premise is that non-serious persons try to convert those complex challenges in Iraq into a League of Justice cartoon where Republicans valiantly fight for American justice and victory in Iraq while Democrats do what they can to undermine Bush's war effort in order to defeat him and America.

It is, I suppose, impressive that Althouse was able (unwittingly) to conclusively demonstrate into which category she falls with just one short post.

Never let the WMD dream die

Just as President Bush admitted for the first time what the world has well known for over two years now -- namely, that the WMD intelligence his Administration hyped in order to sell the war was "wrong," meaning inaccurate and false -- certain True Believers are still insisting that Saddam really did have WMDs and he simply "moved" them to Syria before the war. The always steadfast New York Sun beats this drum loudly today:

Saddam Hussein moved his chemical weapons to Syria six weeks before the war started, Israel's top general during Operation Iraqi Freedom says. . . .

The Israeli officer, Lieutenant General Moshe Yaalon, asserted that Saddam spirited his chemical weapons out of the country on the eve of the war. "He transferred the chemical agents from Iraq to Syria," General Yaalon told The New York Sun over dinner in New York on Tuesday night. "No one went to Syria to find it."

According to the Sun article, this now-retired Israeli General previously offered up this theory -- which has long been the last, best hope to which many war proponents have clung in order to salvage the WMD claims -- only as speculation, saying in 2004: "Perhaps they transferred them to another country, such as Syria." Now he is asserting it more definitively, but it's hard to believe he actually has obtained hard information enabling him to transform his speculation into fact, primarily because if such information existed, it would undoubtedly have been disclosed.

But even assuming that the Sun's "relocated WMD" theory is accurate, it would change very little. The term "WMDs" has joined terms such as "terrorist" and "torture" on the list of phrases that are so vague and ill-defined that they are wholly impoverished of meaning, and are now used almost exclusively to propagandize and manipulate, rather than illuminate or advance rational arguments.

Is every "chemical weapon" really a "weapon of mass destruction"? The U.S. has numerous conventional weapons that will kill far more people and do much greater damage than all sorts of weaponized chemicals can. The debate about WMDs has now implicitly though fully embraced the proposition that any chemical or biological weapon -- no matter its destructive properties -- is intrinsically a "weapon of mass destruction," such that the mere existence of any one of those items in Saddam's arsenal would vindicate the entire panoply of pre-war claims that fall under the heading "Saddam had WMDs."

But that notion is simply absurd. Nobody favored a war against Saddam because of a concern that he had a few run-of-the-mill chemicals. The truly motivating concern was, first and foremost, the prospect of his acquiring a nuclear capability, hence the frightening warnings from the Administration about not having the "smoking gun be in the form of a mushroom cloud." The existence of a few chemicals, even if it had been something other than an illusion, would hardly have been sufficient to warrant an invasion, nor would it likely have been sufficient to persuade the public to support the war. It was the prospect of nuclear weapons, and secondarily truly destructive biological and chemical agents, which caused people to see Saddam as enough of a threat to the U.S. to justify a war against him.

Not all "WMDs" are created equal, and not all "chemical and biological weapons" are accurately characterized as "WMDs." The post-invasion debate over WMDs has been conducted like some sort of silly reality game show: all you have to do is find one chemical in Saddam's arsenal buried somewhere in Iraq (or, and here's a twist, moved to Syria) and -- presto! -- the pro-war team wins because it will turn out that the pre-war WMD claims were right all along.

The New York Sun can find all the pro-war "sources" it wants to try to prove that there really were "WMDs" in Iraq. None of that will vindicate the claims made by the Administration which actually motivated Americans to support the war.

Allowing Bush to breach his Plame vows

Robert Novak said yesterday what has long been obvious: that President Bush knows who is responsible for leaking Plame's CIA employment, or at least could easily find out:

"I'm confident the president knows who the source is," Novak told a luncheon audience at the John Locke Foundation in Raleigh, N.C., on Tuesday, according to an account published yesterday in the Raleigh News & Observer. "I'd be amazed if he doesn't."

And Novak's recommendation to the media as a result of this "revelation" is equally obvious, and long overdue as well:

"So I say, don't bug me. Don't bug Bob Woodward. Bug the president as to whether he should reveal who the source is," Novak said.

There is an entire cottage industry that is now devoted to expert and sometimes-not-so-expert speculation as to the identity of the Plame culprits. For more than two full years now, citizens have been kept in the dark about who leaked this indisputably classified information to the press, while the Washington media, half of whom has always known, have pitifully pretended that they didn't know, in the process destroying the small amounts of credibility they had left.

None of this had to happen, and it could all be put to an end right now by one person -- George Bush. All along, he could have easily discovered, if in fact he didn't, who the leakers were by simply rounding up the relatively small group of suspects and asking each of them if they leaked. We don't know whether he did that or not, and if he did, he hasn't been pressured at all by our submissive media drones into disclosing what he knows, let alone doing anything about it.

That glaring failure is all the more inexcusable given that Bush long ago vowed to do everything he could to discover the identity of the leakers and then fire them. These statements compelled him long ago to take affirmative steps to find out who it is in his Administration who leaked this information. And he ought to be compelled to follow through on his promise to fire them.

Bush long ago claimed he wanted to know the identity of the leaker(s) because leaking classified information is, in his view, "a bad thing."

"If there's a leak out of my administration, I want to know who it is," Bush told reporters at an impromptu news conference during a fund-raising stop in Chicago, Illinois. "If the person has violated law, that person will be taken care of.

"I welcome the investigation. I am absolutely confident the Justice Department will do a good job.

"I want to know the truth," the president continued. "Leaks of classified information are bad things." He added that he did not know of "anybody in my administration who leaked classified information."

Bush also claims to have directed everyone in his Administration involved in the leak to cooperate with the investigation and come forward and admit their involvement:

Bush said he has told his administration to cooperate fully with the investigation and asked anyone with knowledge of the case to come forward.

And, Bush vowed to fire anyone responsible for the leak. Here’s his White House Press Secretary, Scott McClellan, announcing this vow on September 29, 2003:

McCLELLAN: The president has set high standards, the highest of standards for people in his administration. He's made it very clear to people in his administration that he expects them to adhere to the highest standards of conduct. If anyone in this administration was involved in it [the leaking of Plame's identity], they would no longer be in this administration. [...]

Q: You continue to talk about the severity of this and if anyone has any information they should go forward to the Justice Department. But can you tell us, since it's so severe, would someone or a group of persons, lose their job in the White House?

McCLELLAN: At a minimum.

Q: At a minimum?

McCLELLAN: At a minimum.

Regardless of whether he committed a crime when doing so, we already know – because he testified to it – that Karl Rove disclosed Valerie Plame’s CIA employment to Time’s Matt Cooper. Doesn’t Bush’s vow to fire anyone "involved in" the leaking compel that he fire Rove?

And it would have been extremely easy over the last 2 years for Bush to have found out that Lewis Libby also leaked this information. He simply could have asked him. Did Bush ever ask Libby about this? Did Bush know from any other sources that Libby was a leaker in the Plame matter? If he did know this, why was Libby permitted to stay employed for two years at the White House in the face of Bush’s vows to fire anyone involved in these leaks?

And even more so, don’t Bush’s claims that he is eager to find out who did the leaking compel him to call, for instance, Stephen Hadley into his office and simply ask him whether he leaked Plame's identity to Bob Woodward, and then tell Americans whether or not Hadley did this? These questions are particularly compelling in light of the fact that whoever is Woodward’s original source concealed this information from the Special Prosecutor for two years while the investigation proceeded – in obvious defiance of Bush’s supposed order to everyone in his Administration to come forward and share with the Prosecutor what they know. Wouldn’t Bush especially want to know the identity of the officials who defied his orders to cooperate with the Special Prosecutor and to come forward with any information they have?

The media has been inexcusably lax in not pressing the Administration for these answers. Regardless of one’s view of the relative importance of these leaks, Bush has publicly proclaimed on multiple occasions that he takes the investigation seriously and that he is committed to finding out who is responsible for the leaking. But he has not followed through on those commitments because he has been permitted to ignore them.

Prior the election, George Bush was able to mostly deflect damage from this scandal by claiming to be as outraged by it as anyone else and professing a desire to find out who the responsible parties are and hold them accountable. But the media has allowed, and is still allowing, him to simply breach those promises.

The true character of the European Left

My recent reference to Rep. Cynthia McKinney as a genuine “hater of America” sparked a dispute in my Comments section -- as well as on the far-left, oh-so-cleverly named Smirking Chimp site -- as to what constitutes “anti-Americanism.” Clearly, mere criticism of the American Government or even the U.S. generally is not sufficient to merit that term. Something further is required, which I defined this way:

If "anti-American" means anything, I'd say it means an inclination to blame America for every world problem, and to vigilantly search for America's guilt while downplaying, ignoring, or excusing the guilt of its enemies.

Whatever the proper definition of the term “anti-American” is, it exists in grotesque abundance throughout the European Left. It was difficult to read yesterday’s Associated Press article reporting on the so-called “outrage” among “Europeans” towards Arnold Schwarzengger’s refusal to grant clemency to mass murderer Tookie Williams without feeling a good amount of outrage of one's own.

It goes without saying that the self-righteousness and unwarranted pomposity oozes out of every paragraph. But far worse is the malignant and uncontrollable compulsion to exploit liberal principles of human rights and individual liberty as cynical weapons devoted to their Real Cause of attacking the U.S. whenever the opportunity presents itself:

The execution of convicted killer Stanley Tookie Williams sparked outrage Tuesday throughout Europe, which has a deep aversion to capital punishment sustained by the painful memory of state-organized murder during the Nazi era.

The disappointment was particularly strong in Austria, native country of Gov. Arnold Schwarzenegger, where many had hoped the former bodybuilder and film star would spare the 51-year-old Williams.

Leaders of Austria's opposition Green Party even called for Schwarzenegger to be stripped of his Austrian citizenship - a demand rejected by Chancellor.

And it isn’t that they merely oppose Tookie Williams’ execution and see it as some sort of profound and unique human rights violation. Some of them actually believe that the gentle, peace-loving mass murderer Williams is morally superior to Gov. Schwarzenneger as a result of this execution:

In Graz, Schwarzenegger's hometown, local Greens said they would file a petition to remove the California governor's name from the city's Arnold Schwarzenegger Stadium. A Christian political group suggested it be renamed for Williams.

"Mr. Williams had converted and, unlike Mr. Schwarzenegger, opposed every form of violence," said Richard Schadauer, chairman of the Association of Christianity and Social Democracy.

The moral perversion here is breathtaking. Convicted multiple murderer Tookie Williams is now the hero of the European Left in whose honor they want to re-name monuments. And it is Gov. Schwarzenegger who is the criminal and murderer who deserves punishment and public repudiation.

And this is where the odious anti-Americanism is so evident. Say what you will about the death penalty – reasonable people can certainly disagree about it, and it’s one of the issues to which I confess an irresolvable ambivalence, usually leaning against it. But even to ardent death penalty opponents, the execution of the unquestionably guilty mass murderer and violent gang founder Tookie Williams –- after a jury trial and multiple judicial appeals –- ranks very, very low on the list of the world’s human rights outrages and grave injustices.

The countries which the European Left makes a passionate cause of defending – from the Palestinian Authority to Iran and Syria, not to mention Cuba, China and multiple other historic Communist regimes –- routinely imprison and/or execute people without any due process, for reasons ranging from criticism of the Government to adultery and homosexuality. None of that sparks “outrage among Europeans,” because none of that provides an opportunity to depict the United States as the world’s real evil. As a result, the European Left is uninterested in it.

And therein lies the embodiment and definition of “anti-Americanism”: the parmaount desire to find fault and evil with the U.S. and thereby adopting that goal as the first and only real principle, from which everything else follows. That goal is then fulfilled by selectively and endlessly highlighting and exaggerating America’s faults and downplaying, ignoring and even defending far worse flaws in others. In its most virulent (and quite common) form, this extends to making common cause with the most abusive and genuinely evil regimes and movements around the world, whose only virtue –- the only one the European Left needs -- is that they are opposed by the U.S.

This is a deeply dishonest and manipulative syndrome, having nothing whatever to do with the principles to which its adherents claim fidelity. Indeed, their supposed “principles” (human rights, the sanctity of human life, individual liberty) are simply weapons, pretexts, used to promote the only real principle they have – that the U.S. is a uniquely corrupt and evil country. And the reason one knows that to be the case is because these same individuals systematically overlook and even excuse far more severe violations of their ostensible principles when perpetrated by the countries and governments with which they inexcusably sympathize (sympathy which itself can be explained by a desire to sit in opposition to any and every American interest).

Right under the noses of the European Left, European Muslim extremists – whom the European Left instinctively defends -- have been systematically executing scores of people for the last several years: innocent people, not mass murderers, who have been randomly slaughtered, without any due process or judicial appeals of any kind. They murder film makers and journalists and they blow up hotels, synagogues, and European mass transit systems. Where is the “outrage” over these incidents from the European Left, which (unlike the murderous United States) cares oh-so-much about principles of non-violence, human rights and the sanctity of life?

And the Middle Eastern countries with which the European Left has made common cause, beginning with the Palestinians and then extending to most other Arab countries in that region, routinely violate the principles which the European Left pretends to believe in, with scarcely a peep of protest from them. It is not Palestianian and Iranian executions of homosexuals or the Chinese imprisonment of dissidents which moves them to “outrage.” It is only the act of Arnold Schwarzenegger in refusing to overturn the decision of a jury upheld after multiple appeals to execute a mass murderer which does so, because that enables them to highlight America’s evil.

And that brings us to the worst part of the article – the part where, as usual, we hear that the views of the European Left are entitled to a presumption of rightness and moral wisdom because . . . . the Holocaust happened in Europe:

Six decades after World War II, opposition to the death penalty remains deeply entrenched in Germany and Austria, a stance resulting from remorse for the evils committed by these countries under Adolf Hitler and an attempt to prevent future state-sponsored killing.

This quite common theme – that the Europeans now possess some sort of enhanced historical and moral wisdom because the Holocaust happened on their continent, under their noses and/or those of their immediate ancestors – is really one of the more illogical and disgusting pieties used by the European Left and their allies to advance their agenda.

Somehow, Europeans have managed to transform the atrocities which they committed and which occurred in their countries from a badge of shame (which, arguably, it need not be any longer) into some sort of badge of moral superiority and entitlement to sit in judgment of others as the Universal Arbiters of Goodness (which it most certainly is not). While there is an argument to be made that things like the Holocaust (not to mention the two world wars spawned by European countries in Europe) should no longer be used to suggest that the Europeans have an inherent propensity towards violence and savagery, those historical events certainly cannot be used, as Europeans and their worshipers try to do, to prove the opposite – namely, that Europe is somehow now the central repository for moral wisdom and universal human rights such that they have some unique ability to decree what is and is not just.

And if, as this Associated Press article suggests, the European Left sees the Holocaust -- which happens to be notable for its systematic slaughter of innocent people -- as being even remotely equivalent to the execution of a mass murderer after abundant due process, then it only illustrates just how perverse it is to believe that those on the European Left are now the moral proprieters of the Holocaust and other European atrocities, entitled to wield those events as proof of their experience-based superior moral wisdom. The Holocaust did not happen to the European Left. At best, they are neutral observers of it, and in reality, are by-products of the societies and historical roots which produced it. Listening to the European Left try to use the 20th Century European atrocities to bolster their self-anointed status as human rights guardians is as nonsensical as it is offensive.

It is moments like these when the European Left gets exposed for the unprincipled, hollow, nakedly hypocritical world-view which drives it. They recruit and cynically exploit precepts of human rights, individual liberty, and even the Holocaust, all to serve their cause of attacking the United States. And they do grave harm to the principles which they claim to believe in by distorting them in service of an entirely different agenda.

I hope the leftist parties in Austria and around Europe succeed in re-naming their monuments after Tookie Williams. That way, everyone will be able to clearly see exactly the attributes which are exalted by those who deceitfully parade themselves around as the world's Guardians of Universal Human Rights.

More Iranian involvement in Iraq

I have posted a lot on growing Iranian involvement in (and control over) Iraq's internal affairs, and the obvious and severe dangers that poses to U.S. interests in the Middle East, so I will simply pass along with minimal comment this morning's New York Times article as yet more evidence of this growing problem:

Less than two days before nationwide elections, the Iraqi border police seized a tanker on Tuesday that had just crossed from Iran filled with thousands of forged ballots, an official at the Interior Ministry said.

The tanker was seized in the evening by agents with the American-trained border protection force at the Iraqi town of Badra, after crossing at Munthirya on the Iraqi border, the official said. According to the Iraqi official, the border police found several thousand partly completed ballots inside.

The official, who spoke on the condition of anonymity because he was not authorized to speak publicly, said the Iranian truck driver told the police under interrogation that at least three other trucks filled with ballots had crossed from Iran at different spots along the border. . . .

Agents of the Iranian government are believed to be supporting the two main Shiite political parties here - the Supreme Council for the Islamic Revolution in Iraq and the Dawa Party -with money and other assistance. Both parties support a strong role for Islam in the Iraqi state; however, compared with the Iranian government itself, which is a strict theocracy, the Iraqi version is relatively moderate.

In recent months, American officials in Baghdad and Washington, along with their British counterparts, have contended that sophisticated bombs have been smuggled across the border from Iran, and that some of them have been used against American and British soldiers. The bombs are thought to be far more sophisticated than most of the powerful but rather rudimentary ones used to attack American tanks and convoys here.

There are some people, primarily on the Left, who are discounting these reports (and others demonstrating Iranian mischief in Iraq) as American fabrications designed to fuel the flames against Iran. That's one of the prices the Administration has to pay for its alarmist and false pre-war rhetoric about Iraqi threats. But to anyone with an even casual knowledge of Iran's historical involvement with Iraqis Shiites, it should come as no surprise at all that the Iranians are seeking to exploit the power vacuum in Iraq in order to maximize their influence there. That's why it is so bizarre, and so infuriating, that we seem to have no plan, and no method, for impeding it. It looks more and more like democratic elections in Iraq will legitimately install pro-Iranian Shiites who intend to do Iran's bidding.

The Iranians owe us a big thank you

I have written several posts over the post few days regarding the growing influence of Iran among the dominant Shiite political forces in Iraq and the quite likely prospect that an elected Iraqi Shiite government will be a close ally of the Iranian ruling mullahs -- certainly closer to them to the U.S. This danger seems to have profound, perhaps even dispositive, implications for whether this war turns out to be a good idea, as Iran, a card-carrying Axis of Evil member, seems to be our most serious threat at the moment, at least in the Middle East.

If we end up creating a governmental system that produces an Iranian puppet government in Iraq -- and ironically, at this point, the only thing that seems capable of stopping us from doing exactly that is our own failure in stabilizing that country enough to allow anyone to govern it -- will anyone really be able to say with a straight face that this war has been worth it or, on balance, has advanced U.S. interests? It's quite hard to see how anyone could.

Two new stories today add fuel to this Iran fire. The first is from the Bush-protecting Washington Times, which cites a former Iraqi general, Gen. Muntazar Jasim al-Samarrai, who claims that "a senior Iranian intelligence officer was in charge of a network of detention centers [in Iraq] where suspected insurgents were routinely tortured and sometimes killed." The article says that the Iranian official, ominously known as "The Engineer,"worked in multiple Iraqi prisons and managed the Jadriya facility, which is the prison the U.S. raided last month and "found 166 prisoners, many emaciated and bearing obvious signs of torture."

The second, and even more disturbing and far-reaching, story, is from Knight Ridder, which reports that the Iranian Government is basically funding and controlling the Shiite militias which are running Iraq's Interior Ministry, which seems to be quickly turning into a vicious secret police that is "running death squads and operating a network of secret prisons":

The Iranian-backed militia the Badr Organization has taken over many of the Iraqi Interior Ministry's intelligence activities and infiltrated its elite commando units, U.S. and Iraqi officials said.

That's enabled the Shiite Muslim militia to use Interior Ministry vehicles and equipment - much of it bought with American money - to carry out revenge attacks against the minority Sunni Muslims, who persecuted the Shiites under Sunni dictator Saddam Hussein, current and former Ministry of Interior employees told Knight Ridder.

The Iranian-controlled Badr militias are not some marginalized fringe group. To the contrary, they are an integral component of the Supreme Council for Islamic Revolution in Iraq, the victorious party in January's Iraqi Purple Finger elections, comprised of the Shiite contingents likely to rule Iraq for the foreseeable future.

Put more simply, Iran is funding and controlling crucial parts of the Iraqi government. And the Badr contingent isn't even trying to deny it any longer:

Allawi receives money from America, from the CIA, but nobody talks about that. All they talk about is our funding from Iran," he said, raising his voice. "We are funded by some (Persian) Gulf countries and the Islamic Republic of Iran. We don't hide it."

Badr was formed and trained in Iran in cooperation with the Iranian government, and its members staged raids into Iraq during the war between the neighboring countries in the 1980s.

This presents a rather suffocating dilemma. The more the democratic processes advance, the more power these Shiite factions will obtain. And that means that the control exerted by our enemy Iran over sizeable portions of the Iraqi government will continue to increase, especially when and if we begin some sort of reduced presence in Iraq.

Did we think about this before we invaded? Does anyone have a solution to this problem now? Is anyone even talking about it? How are we going to prevent Iraqi Shiites from electing a government which forms a close alliance with Iran, and similarly, how are we going to prevent Iran from exerting substantial control over Iraq's internal affairs?

What an odd thing we did here. Our most serious enemy had at the top of its wish list the elimination of Saddam Hussein's hostile Sunni regime (which, by the way, waged bloody war against Iran for 8 years), and in Iran's wildest wet dreams, that regime would be replaced by Iranian-friendly Shiite clerics and militia figures which it has long controlled.

And we spent a huge amount of money and sacrificed thousands of lives -- still counting, in both areas -- trying to achieve exactly that. And if we are successful in achieving the goals which the Bush Administration says that we now have, it means that we will leave Iraq under Iran's influence as soon as possible.

I don't think that more lofty paeans to liberation and democracy and purple inked-fingers are going to compensate for that rather disastrous and dangerous result.

A democratic Iraq is not the same as a friendly Iraq

Credit is due to the White House for finally having the President deliver coherent, clear, and relatively candid speeches about what we are doing in Iraq, why we are doing it, and what challenges and problems we continue to face. Unlike the vague and insulting happy-face nonsense we have been fed for almost 3 years whenever the Administration spoke about Iraq, these latest speeches are more substantive, serious and respectful.

That doesn’t mean the rationale which is being provided is persuasive -- to me, it isn’t -- but it’s at least less propagandistic and more cognizant of a Government’s need to inform a nation’s citizens about the realities of a war if it wants the sustained support of those citizens.

The President delivered such a speech yesterday at the Philadelphia World Affairs Council, and laid out with a good amount of clarity and detail what the Administration believes are its plan and its rationale for the ongoing war. In doing so, he set forth one of the central flaws of our invasion of Iraq:

By helping Iraqis to build a democracy, we will gain an ally in the war on terror.

Bush provides other reasons why he believes that democracy in Iraq benefits the U.S., but as I’ve pointed out before, this rationale is just illogical. It is far from certain that a democratically elected government in Iraq will be our "ally in the war on terror" or an ally of ours in any other respect. Indeed, it is quite possible that such a government will be hostile to American interests, as the democratically elected government in Venezuela is.

Egypt, Saudi Arabia and Jordan are our allies in the war on terror, at least a good amount of the time, as is Pakistan. The first three are the opposites of democracy and the latter is led by a military dictator. The existence of a democratically elected government is hardly a guarantee that a country will be our ally, nor is the absence of such a government a guarantee that it will be our enemy.

It remains to be seen whether the chaos and civil strife in Iraq really can be sufficiently quelled such that a democratically elected government can function in Iraq, let alone weed out the thriving Al Qaeda presence which has taken root subsequent to and a result of our invasion. There is very good reason to doubt that this will happen, although one cannot say that it is impossible.

But achieving that extremely ambitious goal is only the first step, not the last step, towards accomplishing something beneficial in Iraq from the perspective of U.S. interests. If the Iraqi democratic process which we have expended so many lives and so much of our resources to create yields an Islamic theocracy that is a close ally of Iran, nobody will be able to reasonably claim that the war has made the U.S. more secure. Contrary to one of the President's principal rationales for this war, it is just not the case that a democratically-elected Iraq is an inherently pro-U.S. Iraq.

The Manchurian Terminator

Most significant political officials use speechwriters and other assorted aides for preparing public statements to be issued in their name. And they ought to. Writing well is neither a guarantee nor a requirement for possessing good judgment, and it’s probably best, at least in theory, if elected officials spend their time on the decision-making parts of their job rather than whittling away the late-night hours crafting pretty literary prose.

But to avoid the sensation that elected officials are just plastic puppets who have words inserted into their mouths because they are incapable of expressing coherent thoughts on their own, some effort should be made to comport those prepared speeches and statements to the actual personality and style of the official for whom they are being written.

Following is a (.pdf) excerpt of Arnold Schwarzenegger’s public statement explaining his decision to deny clemency to Stanely Williams. Could this sound any less like Arnold Schwarzenegger:

The basis of Williams’ clemency request is not innocence. Rather, the basis of the request is the "personal redemption Stanley Williams has experienced and the positive impact of the message he sends."4 But Williams’ claim of innocence remains a key factor to evaluating his claim of personal redemption. It is impossible to separate Williams’ claim of innocence from his claim of redemption.

Cumulatively, the evidence demonstrating Williams is guilty of these murders is strong and compelling. . . . Based on the cumulative weight of the evidence, there is no reason to second guess the jury’s decision of guilt or raise significant doubts or serious reservations about Williams’ convictions and death sentence. He murdered Albert Owens and Yen-I Yang, Yee-Chen Lin and Tsai-Shai Lin in cold blood in two separate incidents that were just weeks apart.

Is Williams’ redemption complete and sincere, or is it just a hollow promise? Stanley Williams insists he is innocent, and that he will not and should not apologize or otherwise atone for the murders of the four victims in this case. Without an apology and atonement for these senseless and brutal killings there can be no redemption. In this case, the one thing that would be the clearest indication of complete remorse and full redemption is the one thing Williams will not do.

Clemency decisions are always difficult, and this one is no exception. After reviewing and weighing the showing Williams has made in support of his clemency request, there is nothing that compels me to nullify the jury’s decision of guilt and sentence and the many court decisions during the last 24 years upholding the jury’s decision with a grant of clemency.

The whole statement is similarly sterile and legalistic, complete with footnotes containing ample case law citations.

Whether to issue clemency is one of the more personal and subjective decisions a Governor is forced to make as part of his public duties. And this specific case, for many reasons, provokes lots of passion on both sides. I have little doubt that Schwarzenegger engaged in at least some moral and philosophical thought processes in order to reach the decision he made. None of that is reflected in this statement, but it ought to be.

Part of Schwarzenegger’s original appeal was precisely that he does not speak this way. Like him or not, there is a colorful authenticity to him that most political figures lack, or at least conceal in public. People crave authenticity in political leaders. I think (perceived) authenticity is the first factor which accounts for the popularity of political figures such as John McCain, Howard Dean, and even George Bush. And it’s exactly the attribute which unlikable politicians, such as John Kerry, Bill Frist, and the 2000 version of Al Gore, so painfully lack.

This hallow and legalistic statement issued in Schwarzenegger's name is so unsatisfying because it does not convey the real thought process behind his decision to deny clemency. Clemency is not so much a legal determination as it is a philosophical and moral analysis. The public would benefit from an open and real discussion of what issues Schwarzenegger considered, and how he considered them, when reaching his decision. But this statement provides very little of that, instead feeding us abstract and legalistic rhetoric which was clearly not reflective of how this decision was reached, and is certainly not reflective of how Schwarzenegger would explain his own thinking.

These type of ghost-written statements -- particularly when they are so ill-fitting to the style of the official who is ostensibly issuing them, and when they are so devoid of life -- accomplish little other than to bolster the image of elected officials as artificial, disingenuous, and incapable and/or afraid of expressing a real or honest opinion.

John Kerry - The Gift that Keeps on Giving

There has not been a prominent elected official in our lifetime who possessed fewer political skills than John Kerry. It continues to amaze how politically inept he is. Joe Lieberman is the Republicans' favorite pet Democrat, but it ought to be John Kerry.

Here is his latest present to the Republican Party, delivered beautifully gift-wrapped during his appearance last weekend on CBS’ Face the Nation:

Sen. KERRY: . . . . But I think what we need to do is recognize what we all agree on, which is you've got to begin to set benchmarks for accomplishment. You've got to begin to transfer authority to the Iraqis. And there is no reason, Bob, that young American soldiers need to be going into the homes of Iraqis in the dead of night, terrorizing kids and children, you know, women, breaking sort of the customs of the--of--the historical customs, religious customs. Whether you like it or not...

SCHIEFFER: Yeah.

Sen. KERRY: ...Iraqis should be doing that. And after all of these two and a half years, with all of the talk of 210,000 people trained, there just is no excuse for not transferring more of that authority.

There is nothing even arguably wrong with the substance of this statement. Like all Kerry statements, the ideas it expresses are actually quite pedestrian and unnotable. Kerry here is saying nothing more than what even pro-war proponents are saying – that the work being done by American soldiers in Iraq is work that ought to be done by Iraqi soldiers instead.

And Kerry’s rationale for this view – that part of what American soldiers have to do is highly aggressive police work which alienates the mostly Sunni population which is subjected to it and therefore would be better performed by Iraqi soldiers -- is really quite uncontroversial.

But nobody has John Kerry’s aptitude for taking a totally innocuous and mundane idea and expressing it so ineptly that it comes off looking sinister and/or stupid. And so now his statement -- where he carelessly used the always-volatile word "terrorizing" to describe what American soldiers are doing in Iraq -- is the centerpiece of an undeniably potent (and undeniably manipulative) Republican television ad, accompanied by the standard GOP attack machine. And, of course, Kerry's controversial history of accusing U.S. soldiers of committing atrocities in Vietnam only makes this poorly crafted statement all the more ill-advised.

It is still unbelievable that the Democrats nominated such a stilted and lifeless figure to be their standard-bearer. But at least the virtue of a stilted political candidate is usually that, almost by definition, they are excessively careful and therefore make very few mistakes. In that regard, such figures are analogous to a football team which relies on a good defense and an up-the-middle ground attack -- tedious, boring, unimaginative, but at least unlikely to make costly errors.

But somehow, Kerry is one of those very rare breeds who is at once overwhelmingly risk-averse and yet still manages to make one hideous error after the next. As a politician, he is completely hapless.

But he is also very impressed with himself, and for that reason, still obviously harbors dreams of Presidential glory. As a result, he keeps sticking his face in front of any camera he can find, envisioning himself to be the leading statesman of the Democratic Party. But if he really wants to help the Democrats, the best thing he could do is keep his mouth shut. Nothing constructive or helpful ever comes out when he opens it.

At the very least, losing presidential candidates ought to wait a decent amount of time after their defeat before trying to be their party's spokesman again. Kerry has the aura of a rejected loser. Americans heard him over and over throughout 2004, especially on Iraq, and rejected him as a Presidential candidate. He really is the last person whom the Democrats ought to be using to be their public face.

Family Values & Chris Wallace (updated)

It's one thing to have strong political convictions and an emotional attachment to George Bush. But it's quite another when those convictions and attachments cause you to publicly attack your own 87 year-old father and ridicule him in front of the world as being a senile lunatic:

"Fox News Sunday" anchorman Chris Wallace says father Mike Wallace has "lost it" - after the legendary CBS newsman told the Boston Globe last week that the fact George Bush had been elected president shows America is "[expletive]-up."

"He's lost it. The man has lost it. What can I say," the younger Wallace lamented to WRKO Boston radio host Howie Carr on Friday.

"He's 87-years old and things have set in," the Fox anchor continued. "I mean, we're going to have a competence hearing pretty soon." Wallace Jr. quickly dispelled any notion that he was joking. When Carr suggested that his comments were likely to be covered by NewsMax, he responded: "You know what? Fine. Go ahead. Call them. That's fine. I'll stand by that."

Apparently, he wasn't content to "stand by that," since he then went further - even when doing so seemed impossible:

Returning to the topic of his father's competence, Wallace Jr. explained: "He's checked out. I don't understand it," beyond the fact that Wallace Sr. has "problems with the war."

He "checked out"? There are lots of people who are willing to defend George Bush from any accusation from any quarter. Is Chris Wallace really so devoted to the Bush Administration that he is willing to castigate his own father in this extremely personal and ugly way -- seemingly disclosing private medical information about his father's mental health -- just to discredit his father's criticisms of George Bush? Apparently so.

And, oh - just for good measure: Howard Dean is Tokyo Rose:

Asked about DNC chair Howard Dean's recent prediction that the U.S. would lose the war in Iraq, Wallace told Carr:

"We are in a war. We do have 150,000-plus American soldiers over there. I mean, it's Tokyo Rose, for God sakes, going on radio saying we can't win the war."

One thing you have to give Chris Wallace. He is a supremely objective journalist who never lets any of his political views or ideological leanings be known.

UPDATE: Pam Spaulding's post on this subject reminds me that Chris Wallace may feel a particular emotional closeness with George Bush because both of them stood for a long time, and really continue to stand, in the suffocating shadows of their fathers, as both Chris and George W.'s lives and careers followed behind their fathers' accomplishments.

Generally speaking, there is a highly disturbing, counter-productive and quite un-meritocractic trend in America towards returning to some sort of monarchic value system where political power and positions of prominence are passed along through quasi-aristocratic family inheritance. Over and over, we see political figures on both sides of the ideological spectrum, as well as non-political elites, who have risen to prominence by virtue of being the child or spouse of some well-known and prominent person. I think this process ends up rewarding stunted and weak personalities who never experience the quite indispensable adulthood ritual of forging one's own path separate and apart from one's own father.

But leaving all of that to the side for another day, there is an undeniable similarity between Chris Wallace and George Bush vis-a-vis their fathers, and it's not at all unlikely that this is what accounts for Chris Wallace's rather reprehensible willingness to smear his own elderly father all in order to defend his fellow nepotism beneficiary, George Bush. Something needs to explain extraordinary behavior like that, and this theory is as good as any.

Sending Eugene McCarthy off to hell (updated)

A little informal survey of the right side of the blogosphere yesterday, the day after the death of anti-war Senator Eugene McCarthy, revealed the emergence of two camps: those who felt constrained to respectfully note that McCarthy seemed to possess genuinely held (and wrong-headed) anti-war convictions, and those who had no compunction about expressing what they really feel about McCarthy.

Here are a few highly representative comments from Protein Wisdom, which, notably, tends to attract a more restrained and reasonable element as compared to other neoconservative gathering places:
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May Eugene McCarthy, seditious scum and all around worthless son of a bitch roast and rot in the darkest, hottest corner of hell forever and a day (emphasis in original).

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McCarthy was the first eruption of the disease that is consuming the Democratic Party of today.

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Eugene McCarthy helped enslave more people than Lincoln freed, he helped extend the life of communism another 20 years and he was complicite (sic) in the killing of almost as many people as Hitler.

But his heart was in the right place. Burning in hell would only begin his deserved punishment.

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There is a substantial (and, by all appearances, growing) portion of the American population which has genuinely come to believe that anyone opposed to an American war is -- by virtue of that opposition and it alone, and regardless of the reasons for that opposition -- a morally depraved, subversive traitor. The kind of comments excerpted above are precisely the sentiments routinely applied to Jack Murtha, Howard Dean, Richard Clarke, and anyone else whose career demonstrates a dedication to their country and adherence to quite mainstream principles but who comes to question the wisdom of the war. They are instantaneously and widely decreed to be cowardly terrorist sympathizers who deserve unlimited punishment.

The anonymity which the blogosphere affords to so many is somewhat analogous to alcohol – it causes people to lose their inhibitions and thus to say things which they wouldn’t say in its absence but which nonetheless reflect their true thoughts. And, to extend the comparison a little further, the comments section of many blogs are like raucous neighborhood bars, repositories for unconstrained and therefore truthful discussions. Comments like the ones excerpted above from Protein Wisdom were far from uncommon yesterday, because the underlying views they convey are becoming increasingly pervasive.

UPDATE: Jeff Goldstein, the proprietor and host of Protein Wisdom, gallantly leaps to the defense of his commenters in the Comments section to this post:

For what it's worth, I think McCarthy was a principled guy -- or better, I believe he believed himself to be a principled guy, those his principles seemed to pull him all over the place. As such, while I disagreed with much of his politics, I don't hold him in the kind of ill regard I hold those whose anti-war stance I take to be more opportunistic than heartfelt. . . .

Some of my commenters (several of whom fought in Vietnam) are still remarkably angry at McCarthy and his ilk. Divisive times, those.

I love how Jeff justifies and excuses his commenters who equate Eugene McCarthy with Adolph Hitler and publicly wish -- the day after McCarthy dies -- that he burn in hell forever. We just have to understand that they are passionate about that era and are speaking from some hard-core convictions.

By contrast, for Jeff, anyone who (understands how intelligence works and) says that George Bush misled the nation with regard to Iraqi WMDs is way over the line of decency and can't possibly be saying that with any sincerity at all. (Such) individuals who express this view are just opportunistic traitors who -- unlike Jeff's commenters -- are unprecedently corrupting American political dialogue and harming the country's interests with their rancid, ugly rhetoric.

It's good that Jeff holds both sides to the same standards rather than reflectively defending even the most facially reprehensible statements just because those responsible for them reside on his side of the ideological spectrum. (Revisions to Update in parenthesis).

An Iraqi Hugo Chavez

Henry Kissinger, who was in favor of the invasion of Iraq, has a basically pro-Bush Op-Ed in the San Diego Union-Tribune outlining his views of how we should and should not get out of Iraq. Beginning with the essentially true premise that Al Qaeda and other Islamic terrorists groups gain strength when they are perceived to have exploited and exposed the weaknesses of their enemies (the U.S.), Kissinger defines the circumstances in which the U.S. can "lose" in Iraq as follows:

It [modern Islamic extremism] is an ideological outpouring comparable to the early days of Islam by which Islam's radical wing seeks to sweep away secularism, pluralistic values and Western institutions wherever Muslims live.

Its dynamism is fueled by the conviction that the designated victims are on the decline and lacking the will to resist. Any event that seems to confirm these convictions compounds the revolutionary dynamism. If a fundamentalist regime is installed in Baghdad or in any