Sunday, January 08, 2006

Several matters

There are a couple of posts I wanted to finish today but won’t be able to until tomorrow. Until then, here a few interesting things of note:

(1) The AP poll reporting that 56% of Americans already believe that the Bush Administration should be required to obtain warrants before eavesdropping on communications, even where the communications involve "suspected terrorists," is extremely significant. The underlying polling data is here (pdf).

Some Bush defenders have objected to the formulation of the poll question on the ground that it specifies that it is "the Bush Administration" exercising these warrantless eavesdropping powers, and is therefore skewed to generate more opposition to the eavesdropping. They believe the poll should simply ask whether the U.S. Government generically should have such powers. Leaving aside the irony that Bush defenders object to the inclusion of the words "Bush Administration" because it is likely to inflame opposition (rather than support) for whatever it is that is being asked about, the inclusion of that term actually makes the poll much more meaningful.

After all, it is the Bush Administration - not some generic "executive" - which is asking Americans to entrust to it secret, illegal eavesdropping powers to be conducted without judicial oversight. While Americans might be willing to entrust some other Administration run by other people with such powers, this poll demonstrates that a majority is unwilling to trust this Administration with those powers.

Bush defenders may be right that there would be different results if the question were posed with some faceless President (or some other President) in mind rather than with Bush, but that undermines their position rather significantly, since the question which is actually at hand is whether Americans trust this particular Administration with secret, lawless eavesdropping powers. The poll shows that Americans do not.

Bush followers also exert the standard objections to the partisan breakdown of respondents (every poll they dislike is inherently flawed and biased), but there are three things worthy of note about this poll regardless of whether its results are perfect:

(a) A majority of Americans has already figured out -- on their own and with almost no prominent political officials strongly making the case -- that all of the scary talk about terrorists and all of the inspiring cowboy imagery of George Bush’s cocksure rule-breaking in order to save us does not justify or render tolerable Bush's violations of the law. The mere invocation of terrorism no longer scares most Americans into blindly endorsing anything that George Bush does, and certainly does not impel them to tolerate illegal conduct by the President. Thus:

(b) This substantial anti-Bush sentiment on the NSA scandal should instill Bush opponents -- Democrats and principled conservatives alike -- with the resolve to start aggressively attacking the Administration on these law-breaking issues. It is safe for Democrats to clearly articulate exactly what this Administration is claiming with regard to its powers of law-breaking, and to speak clearly and declaratively about the profound danger posed by George Bush’s belief that he has the right to break the law – not just eavesdropping laws, but laws generally. That case has not really been made, and yet 56% of Americans already object to warrantless eavesdropping even if it involves eavesdropping on "suspected terrorists."

Imagine what that number could be if Democrats and other political officials were speaking clearly, rather than in half-hearted and cautious legalisms, about George Bush’s explicitly claimed right to violate the law.

(c) The substantial opposition to warrantless eavesdropping exists even though there has been no real evidence yet that the Administration abused its eavesdropping power. Evidence of abuse, if it exists, would obviously catapult this issue into a whole new realm, but it is not necessary to have such evidence, because it is a profound crisis and a danger unto itself to have a President who breaks the law and then, when caught, says that he has the right to do so and vows to our faces that he will continue to break the law.

(2) The real issue here is not whether the Administration can eavesdrop without warrants (which is what the poll asked), but whether the Administration has the right to break the law if it thinks that doing so will help in the fight against terrorism. That is really the issue here, and to make clear that this is so, Bush opponents should simply start explaining to the public exactly what Bush followers are saying in defense of the President - because what they are arguing is exactly that: that Bush has the right to violate the law.

Along those lines, this week’s Weekly Standard is publishing an extremely important essay by long-time social conservative hero Harvey Mansfield, a Professor of Government at Harvard. The article is entitled "The President and the Law" and sets forth with perfect clarity the view of Bush defenders -- as previously expressed by, among others, Dick Cheney – that as a result of the "war" we are fighting against terrorists, the President really is above the law; he is the law; and the Constitution gives him the right to ignore both Congress and the courts. Bush opponents must make clear to Americans that this is the theory on which the Bush Administration is based.

(Independently, Americans also ought to know, and the Senate needs to find out, whether and to what extent Sam Alito agrees with these views of Executive power and the rule of law. Maybe Joe Biden could give Alito a homework assignment of reading Mansfield's article and be prepared to discuss it at the hearings).

Does Mansfield’s description of the Constitution and the powers of the President sound anything like the pre-Bush United States?

Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force. . . .

To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger. . .

Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli's terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. . . .

In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. . . .

With one person in charge we can have both secrecy and responsibility. Here we have the reason that American society, in imitation of American government, makes so much use of one-man rule. . . .

Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.

So, to recap: The President is "larger" than the law. The "rule of law is not enough to run a Government." We must remember that a monarchy is "effective" and therefore, in times of "war" (like now), we must embrace "one-man rule." In sum, in emergencies like the one we have now and will have for the indefinite future, the "law does not apply."

That George Bush has the right to break the law is not a fringe crackpot theory. It lies at the heart of the Bush Administration’s conduct and is the only theory which can coherently explain its actions. This view is being expressly and unabashedly advocated in the most influential pro-Bush magazine. It is endorsed by public intellectuals like Mansfield, by highly influential federal judges like Richard Posner, and by former Attorney Generals like William Barr. Dick Cheney has made no bones about the fact that this is the Administration’s view, and of course, the Yoo Memorandum (with its quite explicit warning that neither Congress nor the judiciary "can place any limits on the President's determinations" relating to terrorism) long ago made clear that this "one-man rule" theory of Executive power lies at the heart of the Bush Administration.

Every Democrat and every Bush opponent should be pointing this out at every possible opportunity. George Bush violated eavesdropping laws and says he will continue because he claims the right to break the law. Debates over specific terrorism-related "laws" or eavesdropping powers or anything else don’t matter because we have an Administration which claims that George Bush -- regardless of the outcomes of those debates -- has the power to violate those laws when he sees fit. Anyone who doubts that this is so should just read Mansfield’s article, or listen to Dick Cheney.

(3) It is impossible to say anything about Ariel Sharon without making large numbers of people angry with you, but this post from the Heretik conveys my view of what is most notable about Sharon now that his public life has ended. Regardless of what he was or did, the ability to change one’s central convictions or at least to accept that one’s long-entrenched approach needs to be transformed is an extremely virtuous, and extremely rare, character trait. The most seemingly intractable conflicts can be resolved only by such transformations.

38 comments:

  1. Anonymous10:13 AM

    That Mansfield article is reprehensible. I both thank you and curse you for sending me to read it.

    The next time Chuck Schumer goes on television, he should just read that. Seriously.

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  2. Anonymous10:19 AM

    This is your most important and frightening post yet on the subject. Defenders of Bush can no longer claim they are not advocating a Monarchy- explicit talking points/marching orders have been issued and the game plan of the neo-cons should soon become clear to the rest of America if they are listening-I hope they both get it and are willing to do something about it

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  3. Anonymous10:50 AM

    I am encouraged by that poll, since as you point out, it's that way even though Democrats have not even come out and said that Bush is breaking the law. What are they waiting for. Is this enough cover? Is it safe now to say it?

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  4. Anonymous11:31 AM

    Shorter Mansfield:
    We have to destroy our democracy in order to save it.

    Or maybe I'm missing his point altogether - we have no interest in saving democracy at all, democracy having outlived its usefulness here. The goal is only to secure the power of the nation-state.

    Am I getting closer?

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  5. Anonymous11:43 AM

    It's sure cheeky for Cheney to assert that if the government had had these warrantless wiretapping powers they might have prevented the disaster on 9/11/01.

    Cheeky, because the GOP was so successful after the attacks in instilling the idea that they were inevitable. Therefore the question of whether our fearless leaders were asleep at the wheel never came up.

    I remember for example news stories toying with the question of whether Gore would have been as aggressive as Bush in responding to the attacks. We were supposed to be grateful that it was Bush in charge. But the question of whether Gore, with his much greater experience with counter-terrorism, might have tried harder and more skillfully and perhaps succeeded in preventing the attacks never arose until much later with the publication of Richard Clarke's Against All Enemies.

    Earlier on, Cheney never would have made a suggestion like the one he's been making recently, because any such assertion would have disturbed the underlying assumption that the attacks were inevitable.

    And of course it was Cheney himself who was supposed to be conducting a government-review of domestic security against terrorism; but the committee never met, the review never occurred, and indeed, Richard Clarke was even denied access to Bush and Cheney. He warned, he pleaded...but all this fell on Condi Rice's deaf ears, according to Clarke, who, naturally, was vilified for telling the truth, just as the Times is being vilified now. At's always the same. Attack the messenger.

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  6. So Mansfield provides the rationale for why tapping CBS to scoop and nullify the draft-dodging president story really was a matter of national security. It all makes so much sense now.

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  7. Anonymous1:15 PM

    Having read Mansfield’s article, I’m still left with questions about who he and by extension, those who believe like him, think the enemy is. His description of the ‘enemy’ matches, quite closely, statements made by many on the right in describing Glenn and others, including probably you and me, who believe that Bush has acted criminally, and should be treated as such. And so, if we are the ‘enemy’, then, at least according to the logic used in that article, Bush has the right, maybe even the responsibility, to engage in ‘extralegal’ activities to insure that our efforts are quashed. It’s frightening, really . . .

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  8. Anonymous1:51 PM

    Glenn,

    I just started reading your blog; I saw your posts on Digby. Great writing; you are now a regular stop on my blog reading.

    What concerns me in all of this is if another attack occurs, all of this logic will go out the window in terms of the eavedropping. Americans, in general, are an easily swayed, gullible, paranoid group and they will give up just about anything to be saved from the boogyman.

    Trust me, even now this eavesdropping issue is not resonating with the rubes because "what is wrong with eavesdropping on terrorists?". They cannot extrapolate this in terms of what it means to them personally and in terms of the Bill of Rights.

    I would also not put it past this administration to "allow" another attack to happen to make these issues go away. 911 was the best thing that ever happened to Bush; he would have been one and out badly if it would not have happened. The fact that Americans can re-elect this clown after all that has happened (pre-911 intelligence, Tora Bora, Iraq, alienation of allies, the lieing, Plamegate, nat. debt, bumbling public embarassment, etc.) tells you everything you need to know. This must all be a sick joke.

    Oh yeah, it would be nice if we had an opposition party to point all of this out. The mealy-mouthed rhetoric of the Dem. "leaders" while getting face-piped by the pugs makes me want to puke. I am a Dem by default, but I surely am not proud of it.

    Chris

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  9. This Mansfield person is disturbingly confused about the separation of powers. The founding fathers were concerned about this very eventuality, which is why they distributed the warmaking authority between the executive and the legislative branches. The Fourth Amendment distributes domestic surveillance authority among the executive, judicial, and legislative branches. This was no accident, the founding fathers spread the executive's "extra-legal" powers among the branches expressly to ensure that the executive does not abuse its "extra-legal" powers. Perhaps Mansfield should take a remedial government class to refresh his memory about such things. He could probably get a discount.

    And for the record, Mansfield states that Bill Clinton admitted to breaking a law. Bill Clinton did no such thing, he argued vehemently that he did not break the law. There is really no comparison between Clinton's position (that he did NOT break the law) and Bush's position (that he did break the law and has the power to break the law to do what he claims to be in the interest of national security).

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  10. Chris,

    You underestimate severely the level of disgust people have with Bush. He has gotten everything he has asked for in the way of national security. The only thing that they have going for them is that Al Qaida has not made another spectacular attack against us domestically. If Bush lets another spectacular attack through, that will be it for him.

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  11. As a "Bush defender" I would like to point out that the NYT article entitled "Bush Lets U.S. Spy on Callers Without Courts" encourages readers to conclude that this is a first in domestic surveillance, and beyond that it also implies that it is an illegal and unnecessary extension of prerogative power (because we are not at war?). The NYT article has set the stage for others to skew public opinion of the administration.

    The comment by "brambling" provides a great example of the skewed public opinion in citing Cheney's response to administration critics that are using use the NYT article as a platform to build upon. Brambling goes even deeper into uncharted territory in citing Gore "news stories" ("with his much greater experience with counter-terrorism, might have tried harder and more skillfully") suggesting here that unlike Bush, Gore would have been able stop the 9/11 attacks.

    As to the poll, I agree that the wording of the questions posed to respondents would effect the polls outcome. For example, how do you suppose people would respond if the question was: "Should laws designed to protect individual US citizens rights to privacy be applied to domestic surveillance of known terrorist agents posing as US residents while communicating with terrorist groups overseas?".

    By the way, another poll taken just after the NYT story was published claims that 64% of Americans are in favor of the NSA surveillance, and that "only 26 percent believe President Bush is the first to authorize a program like the one currently in the news".

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  12. Anonymous3:08 PM

    There needs to be a poll testing the level of understanding the American people have when opining about separation of powers, checks and balances, the Constitution, and the Rule of Law.

    No need to point out that torture and extra legal activity was one of the major complaints Bush had with Saddam Hussein. Hussein could use Bush's lawbreaking to justify ALL of his excesses for the sake of Iraqi national security.

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  13. Anonymous3:20 PM

    Ploeg,

    The general American public wouldn't know the details of the Constitution if it hit them in the head.

    The "level of disgust" you speak of I think is highest with those that wouldn't vote pug anyway. The mushy middle feels a little safe now and they are starting to engage their brains again.

    I think you are dead wrong about the reaction of the public if another attack happens. Chimp will be back at 80% an hour afterwards. And round and round we go.

    The Fly -

    How would you suggest safeguarding against the use of eavesdropping for political gain?

    I know dear leader and his morally grounded helpers would never think of such a thing.

    But, what if the evil Dems actually win back the Presidency? Would you still have the same opinion?

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  14. Anonymous3:35 PM

    What I really don't get about all the "Bush is speudo-king as long as we have a war on terra" mental gymnastics is: Don't these Bush supporters think there will ever be another Dem president any time soon? Maybe they really thnk this can't happen and therefore need not worry about "Queen Hillary". Can't wait to hear all the pretzeled logic that will backtrack all of this when we have a Dem "King".

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  15. Anonymous3:42 PM

    Fly - I appreciate your comments, but am interested in whether you really believe that the fact the NYT’s article has encouraged efforts by others to “skew public opinion of the administration” is a bad thing. I’ve always viewed engaging in public debate as one of the principal activities that keeps a democracy vibrant and responsive to its citizens. This administration’s actions are and should be subject to analysis and debate by the citizens it presumably serves. You and I might not substantively agree on whether the administration is doing the right thing, but surely having the debate isn’t bad, is it?

    Your polling question also doesn’t make much sense. Do you really believe that the only US citizens being spied upon in violation of FISA provisions are “known terrorist agents posing as US residents”? If the hundreds if not thousands of people that have been illegally spied upon are such agents, then maybe our government should be doing more than just eavesdropping - how about locking some of them up. I’m guessing, though, that probably more than a few aren’t the dastardly villains you try to portray them as, but in fact are US citizens who are legally entitled to some protection from warrantless eavesdropping, and whose legal rights are being intentionally violated by this administration.

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  16. By the way: Steve Gilliard posted that Weekly Standard article you sent him, and Bellatrys over in the comments section rips it to shreds.

    Take it away, Bellatrys!

    ---------


    Except that the king of England *couldn't* do that. The Declaration of Independence is an appeal to Parliament's better nature by paraphrasing one of the most important and famous Acts of Parliament, the Act of Settlement of 1689, which lays down why King James II after being helicoptered out of the country to France, was no longer allowed (or any of his family nor his coreligionists, when religion and political party were the same) to *be* king - the arrogance of starting foreign wars without Parlimentary oversight, of demanding funds the same, of applying laws inconsistently and with favoritism to his own party supporters, of tampering with local Parliamentary elections, of arresting enemies of his side on suspicion, and charging obscene amounts of bail, and delaying their trials, and in general and specific, messing around with the whole tradition of laws and rights of citizens going back to Magna Carta. (Extraordinary rendition was banned earlier, in 1679, by Charles II.)

    They [our Founding Fathers] were in fact saying "look, by our own shared history, we are being treated in ways that the highest law of the land has decided for almost a century is unacceptable for British citizens, the last time a king did this, you, Parliament, sent him packing. We deserve the same rights, dammit, we're not second-class citizens!" (Except that this was a loophole and a legal fiction itself, allowing Parliament to weasel out of responsibility, since George III was (even when sane) a figurehead with the real power in the hands of Pitt and Fox and all.)

    Much of this same language is enshrined not only in the Declaration, but in the earlier state constitutions before being made the law of the whole country in the Bill of Rights. The only massively significant changes we made to the body of English Common Law were 1) mandating the Freedom of Religion, 2) enshrining a different sort of inequality, that based on race.

    Georgie is thus behaving in ways that got one King of England decapitated, and his grandson exiled, along with his entire party banned from politics thereafter in the 1600s. He's moving into Roman Emperor territory, or something unprecedented, as even the most dictatorial Emperors pretended to operate with the sanction of the Senate, even the Louies were subject in theory to French law and limits, whether or not anyone was able or willing to enforce it.

    I think it's called "warlordism," in point of fact.
    bellatrys | Homepage | 01.08.06 - 10:46 am | #

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  17. Let me first thank our host for setting forth some of the popular opinions out there backed up with references for readers to consider.

    The comment by "bcinaz" makes a great point in that the level of understanding of all the various machinations of our government varies widely across the country, and even the supreme court itself has often been divided on constitutional issues.

    I am not a lawyer, nor am I an expert on the US Constitution. All I am trying to do is process all of the information out there into an opinion that makes sense to me, so at least I don't feel like I am among the lost or under informed.

    Chris asks "How would you suggest safeguarding against the use of eavesdropping for political gain?"

    That's a great question, and reminds me of how I felt after watching the 60 minutes program on Echelon under President Clinton (aired in 2000). Honestly, my reaction was much the same as it was over the NYT story. I was more surprised by the fact that they would make such a surveillance program public, rather than the fact that the program itself exists.

    The idea of using such a program for political gain doesn't really register with me, but you are right that it is possible. How do we safeguard against it?

    Well, feel free to correct me if I'm mistaken, but past examples of domestic political "spying" seem to have involved the FBI, but not the NSA.

    As for the Dems, I don't associate either political party with being either "morally grounded" or "evil". It depends on the people that end up getting elected.

    Personally, I admired President Clinton's personality and viewed him as a generally competent leader, that is until the Monica Lewinsky episode.

    And in the case of President Bush, he is facing some very difficult issues, perhaps much more so than other recent presidents. I would say overall he seems authentic and appears to be doing his best to do what he thinks is necessary.

    JimLanc, your comment actually makes my point. The issue of first obtaining a court order seems to be a moot point because, as our host points out, FISA authorizes limited surveillance (72 hours?) without first obtaining a warrant.

    Thus, we actually have no way of knowing in advance who is being targeted and why, and why should we? The "data mining" is done first by machines not people, similar to advertisers using Internet "cookies".

    The problem of privacy seems to arise only when humans misuse the raw data collected by machines. In such a case, how could one conclude that the surveillance program is wrongfully focusing on innocent citizens if there is no misuse of the raw data?

    Even on the rare occasion when it inadvertently does focus on the innocent citizen, how would one go about reaching the conclusion that the raw data is being misused by the Bush administration?

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  18. Anonymous5:04 PM

    This is Carl Schmitt all over again . . .

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  19. Anonymous5:37 PM

    Fly, all of the concerns in your last post were discussed, negotiated, and finally put into law, by having Congress pass, and the president sign FISA. It sets out, quite clearly, what’s permissible and what is not permissible, in attempting to address all the different concerns that you raise. And that’s the way the system is supposed to work. If Bush felt that somehow, current circumstances are cause for reevaluating these issues, then he should have gone back to Congress, and sought a change to FISA. Again, that’s how the system works. It’s awkward at times, but that’s the way we have decided we’re going to deal with problems that our country is facing. And what causes me great concern is that, as Glenn has clearly exposited in previous postings, Bush simply has decided he is not required to follow that course, but rather has chosen to bypass this system and act outside the law. And that’s extremely troubling to me, because, unlike you, I simply don’t trust Bush.

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  20. But CRIMINCALS, being extra-legal, need to be faced with extra-legal force. . . .

    Made Mansfield's next argument for him.

    The bill of rights only protects criminals anyway, so who needs it?

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  21. Anonymous6:53 PM

    FLY: First let me commend you for commenting here and expressing a genuine interest in grappling with the issue of Bush's warrantless surveillance, in contravention of FISA. I voted for Bush in '04, and I am now deeply horrified at the power he has assumed, and which is theoretically unlimited. Which is to say, even if he has not committed any abuses, and even if all that he has done would have been approved by the FISA court had he been subject to their judicial review, he is nevertheless acting lawlessly and according to a theory that puts him, literally, above the law; indeed, it makes him the law.

    FISA is intended to apply exactly in times like these. It is legislation born of negotiation between the Legislative and Executive branch, and was duly enacted by our Congress. But Bush says it does not bind to him. Then along comes Harvey Mansfield writing in a premiere conservative publication, The Weekly Standard, and he declares that George Bush is a prince, who should -- nay, is obligated -- to act outside the law.

    One thing about Mansfield's argument is that it is at least honest (well, not about history and the Founders, but about the fact that Bush is breaking the law), unlike the Powerline lawyers or Hugh Hewitt's propaganda on the subject. Mansfield concedes -- celebrates, actually -- that Bush is behaving illegally. I am a lawyer, and I've familiarized myself with FISA, as well as with controlling case law. Therefore, I am in a position to know that Glenn is 95% correct* in his legal arguments, and that the Powerline trio and Hugh Hewittt are purposely misinforming the public. Their credentials are quite stellar, and so I am certain that their blog "arguments" defending Bush and claiming his actions are legal, are meant to calm honest non-lawyers who support Bush, people like you. These men are hardly fools, so they are not making mere mistakes in their legal analyses. They know that politically it may not be possible to hold Bush to account, especially if they can keep the base satisfied that all is well. So, they are not interested in genuine legal discussions, which could not help Bush.

    I didn't pull the Bush lever to elect a prince. Did you?

    *I disagree w/ Glenn about how Justice Jackson's concurring opinion in Youngstown would apply to Bush's warrantless surveillance in violation of FISA, but that disagreement would almost certainly not impact the bottom line, namely, that Bush is breaking the law.

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  22. Anonymous7:05 PM

    Brambling goes even deeper into uncharted territory in citing Gore "news stories"

    Actually, I was citing the LACK of news stories, or rather the lack of any kind of balance in them. I remember a number of stories after 9/11 which implied that we should be thankful after all that the Supreme Court had taken matters into its own hands, because clearly we were better off in wartime with Bush (who didn't serve in Vietnam, even though took the pro-war side) than Gore (who did serve, in spite of his policy misgivings). Gore, it was implied, wouldn't have been able to react with the same macho vigor.

    Straightforward journalists would have naturally speculated in the same stories speculation on the natural twin to that question: how Gore would have acted before the attacks? Instead, all of them relied on an unquestioned assumption, that the attacks were somehow inevitable and could not have been prevented. It seems that they must have been asked to shelve such speculation, doubtless in the name of national solidarity. Otherwise, there would have been a few chinks here and there, some spontaneous discussion right from the start of how so much could have gone wrong with our defenses at once.

    And no, you're right, we can't know whether Gore, or anyone else, would have been able to prevent this disaster or not. But we can be pretty much certain that had he received the kind of repeated warnings from Clarke, Tenet and others that Bush received, he would have made it a top priority. We know, because the Clinton administration went into high gear when they received similar warnings, and were able to thwart several plans, including millenium attacks planned for the Seattle Space Needle, the Holland Tunnel, the Lincoln Tunnel, and the L.A. Airport. Would they have been able to prevent the 9/11 hijackings? We can't know. But their track record wasn't too bad.

    Also, Gore was well informed on this subject...he was a co-chair of the bi-partisan commission that studied aviation security and which issued a number of recommendations, all of which the Bush people ignored, probably on the principle of refusing any Clinton-tainted advice. Instead, Bush asked Cheney to undertake a review of the whole situation, but the committee never met.

    We also know what Richard Clarke has told us. He was attacked by the usual smear machine as partisan, but in fact three of the four administrations he worked for were Republican. He was in a unique position to do a comparison study. According to his book, Against All Enemies, he was frustrated by the Bush teams' nonchalance in ignoring real threats, and unwillingness to hold high level meetings on the subject. He was in particular taken aback on the day of the hijackings, when he heard Cheney talking about invading Iraq, which really had nothing to do with what had just occurred in New York and Washington. Clarke figured after 9/11 that the Administration would finally undertake some common sense preventative measures, but they didn't, not even then. They're all hat.

    It really does take chutzpah for Cheney to speculate, now that discussion of what went wrong, which finally occurred months later, has died down, that if they'd been able to listen in to more Americans' conversations, they might have prevented the hijackings. The ability to eavesdrop without a warrant was hardly the problem. Maybe if, like our prior executives, they'd had some system for responding to warnings, they'd have been able to prevent the attacks. The attacks were not, after all, inevitable. It all depended on many things going just right for the hijackers. Again, we can never know what would have happened if we'd had leaders more responsive to warnings about terrorists, hurricanes, etc. But what irony that so many Americans, at least until recently, have believed the hype that these guys have some special competence at keeping us safe.

    I realize that we are hardly going to have a meeting of the minds here, "Fly," as we are starting out too far apart. And we're a bit off topic, although we got there because of Cheney's remarks trying to link the government's need to eavesdrop without a warrant to the 9/11 attacks. There really is no end to the advantage they try to take of 9/11 for their own purposes. We're supposed to react like Pavlov's dogs - link Iraq and Al Queda and maybe we'll go for it. Link eavesdropping and 9/11 and maybe we'll go for it again.

    I'm glad you're here by the way. This blog manages to attract a more civilized discussion than most. Kudos to the host.

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  23. Anonymous7:11 PM

    Mansfield, like Yoo, appears to have either never read or completely forgotten about the Federalist Papers. Publius refuted all of those arguments over 210 years ago. And refuted them for all time.

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  24. From what I have read, as I understand the Constitution in times of war under Article II the President as Commander In Chief of the nations military, has complete authority to take whatever measures he deems necessary to protect the nation, including warrant less electronic surveillance.

    It seems to be well settled by previous Supreme Court decisions that the President's authority is specifically spelled out in the Constitution and cannot be circumvented by a new statute such as FISA.

    FISA of course is the "law of the land" but as I stated above the framers obviously did not intend for new laws to supercede the Presidents authority under the Constitution, particularly when the nation is at war.

    Is it reasonable for one to conclude that during the heat of battle, congressional committees would form hour by hour to make decisions on what authority the President might have to authorize individual battle plans?

    The comment made by burnspbesq makes a great point, if you want to understand the intent of the Constitution, study the life and times of the Founding Fathers themselves. Thomas Jefferson, for example.

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  25. Anonymous10:43 PM

    Fly,

    This would be all fine and dandy if there was actually a declared "war" going on. Last time I checked, Congress had to declare. The political cowards that are the Dem Congressional Leadership passed on that little bit of responsibility because they are too busy sticking their fingers in the air.

    And, the fact that this is a "war" is debatable. Terrorism is a tool that has no boundaries or structured state support. You might as well have a "war against 767's flying into buildings". This is just a bunch of BS that Bush uses to keep the rubes scared.

    I am surprised that you wouldn't consider that somebody would use eavesdropping for political gain. You are either naive or not being honest.

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  26. Anonymous10:47 PM

    Fly writes: From what I have read, as I understand the Constitution in times of war under Article II the President as Commander In Chief of the nations military, has complete authority to take whatever measures he deems necessary to protect the nation, including warrant less electronic surveillance.

    I understand why you might think that, but it is utterly false. Please read the past 2-3 weeks of posts here, along w/ comments, and especially look at discussion of the Youngstown steel mill seizure case. The Supreme Court issued Harry Truman -- during the Korean war when Truman had invoked national security -- a resounding "no." Even tho it meant he might not be able to meet the needs of the United States military during a war.

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  27. Actually, I think you may be misunderstanding the Youngstown Steel ruling which, as I understand it, is about President Truman attempting to avert a labor strike by seizing private property. Clearly unconstitutional.

    The administrations argument here is that the NSA, a government agency that has been gathering military intelligence for 60 years, is currently being used against a foreign enemy, i.e. terrorists. I would hope that you understand that the President does have constitutional authority over the nations military assets as Commander In Chief.

    Federalist Papers No. 74

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  28. Anonymous11:48 PM

    Actually, I think you may be misunderstanding the Youngstown Steel ruling which, as I understand it, is about President Truman attempting to avert a labor strike by seizing private property. Clearly unconstitutional.

    With all due respect, it is you who does not understand Youngstown. There is no reason why property interests should be above liberty and privacy interests vis-a-vis a president's claimed domestic wartime authority. That is why formidable lawyers everywhere are parsing Youngstown and concluding that Bush stands on very thin ground, legally. See Orin Kerr at The Volohk Conspiracy -- no anti-Bush shill, he.

    Again, please do read the last 3 weeks worth of posts and comments here. Until you do, you simply do not sufficiently grasp the legal argument.

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  29. I agree with so much of what you have to say, and have said of late, about Bush and his belief that he has the right, in a time of war, to ignore the law. From talking with those around me, liberal and conservative, most understand that there may be times when the edge of the law is not clearly defined and they will tolerate, or at least give the President the benefit of the doubt, some "aggressive" exercise of the executive function - in a time of war. The issue, here, as I see it, is that most people (at least those that took the AP poll) recognize that we aren't really in a time of war. And, if we are, we certainly aren't acting like it. The mood in the country, the lack of a real enemy (how do you fight an idea), the lack of a Declaration of War and the President's own actions (can you say 365 days of vacation) do not comport with his statements that he only has these extra powers as the commander in chief because we are a country at war. That is not to say that the problem is just that the President has not done an adequate job of convincing us we are at war - as numerous people have pointed out the only thing this President and his Administration is good at is using fear and 9/11 to scare the shit out of us - it is that we know, intuitively, that we are not at war and that President is only using 9/11, and the alleged War on Terror, to justify his attempt to secure political power. That is really all that is going on here. We know the President's claim that "The President's NSA Program" is not justified by real, legitimate, genuine, bona fide national security interests (if it was someone by now would have been able to adequately answer Atrios' question how revelation of the program has in any way hurt national security) and that is only really a political program for political purposes. Why? Because FISA already provides for warrantless searches in exigent circumstances. The fact that Bush wanted to avoid judicial review by the rubber stamp FISA court is ominous.

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  30. Anonymous11:57 AM

    Very striking. T.C.Mits, 'the common man in the street', has a more informed view of checks and balances than the "professor from Harvard".

    Honestly, I think they just get stupider the longer they spend at Harvard.

    ye olde seriale catowner

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  31. I wonder if George Bush also has a Top Secret memorandum written by Gonzales/Yoo claiming the right to "fix" elections for National Security purposes, too?

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  32. Anonymous12:34 PM

    Wow, Glenn, great post.

    The Mansfield article made my jaw drop. The Bushites really do want a king, they are tired of democracy because complete power is their "due," to use Cheney's phrase. They happened to be in the WH when the U.S. was attacked, so they win a kind of political lottery that allows them to suspend democracy.

    I think most Americans would choke if they hear someone saying that a monarch is effective and that maybe the founders were too rash in not realizing the value of Machiavelli's notion of the prince.

    I cannot wait to see if conservatives reference this piece (without all the language of king worship).

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  33. Anonymous12:42 PM

    Who is Harvey Mansfield?

    He is one of the most prominent Straussian political theorists. And I use that term purely descriptively, not pejoratively (I don't happen to be one of these people who believes that the Bush administration can be explained as some sort of Straussian conspiracy).

    He is an expert on, among other things, Tocqueville and Machiavelli, and has also written much on the American founding.

    Like many Straussians, he is known as an excellent (if tough) teacher.

    He's also been something of an entrepreneur on the intellectual right, both at Harvard and in the larger world.

    His doctoral students have included Alan Keyes and William Kristol.

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  34. Anonymous4:02 PM

    Mansfield: "Enemies . . . oppose our law and want to replace it with theirs."

    Granting for the moment that this is the case, should not our response be to keep a firm hold on our own law, instead of flinging it out the window?

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  35. Anonymous1:44 AM

    "Enemies . . . oppose our law and want to replace it with theirs."

    Mansfield is right, in a way. Bush is an enemy of America. He opposes our law and wants to replace it with his own law, which says "I am King."

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  36. Glenn,

    I call your attention to a curious precedent when handling these particular dilemmas [ 71 U.S. 2 ], it is appropriate for the States to act. Congress has failed to subdue this President's unlawful rebellion: [ Click ]

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  37. If that doesn't convince you, beware! Don't take the bait on these White House ruses. They're doing an excellent job at changing the subject to "something else" over issues related to Iran, Iraq, WMD.

    Don't take the bait: [ Click ]

    For reference, look at the non-sense they pulled over Iraq: [ Click ]

    They're doing it again -- but this time across many different issues. This has one goal: To delay an impeachment vote, and protect the RNC for 9 months. Are you going to put up with this non-sense for nine months?

    If you want this to end, call your state legislators and get an impeachment proclamation passed. This will force the Congress to vote -- up or down on impeachment. Then we'll know, whether this Congress is for or against the rule of law.

    The states have the power to force this issue: [ Click ]

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