By Anonymous Liberal
____________________
In its article covering Friday's censure hearing, the New York Times reports:
Several Republicans argued that whatever the legal status of the spying program, it did not deserve punishment because, unlike Nixon, Mr. Bush had acted in good faith.
"This is apples and oranges," Senator Lindsey Graham, Republican of South Carolina, told Mr. Dean. "Anybody who believes that Richard Nixon was relying on some inherent-authority argument is recreating history."
Oh really. Here's a passage from the same 1969 TIME Magazine article Glenn highlighted yesterday:
If anything, the Nixon Administration has been less than apologetic about the practice. Last month, in a memorandum filed during the Chicago trial of eight men charged with conspiring to incite acts of violence during the Democratic National Convention, the Justice Department claimed the inherent right to bug or wiretap-without court orders-any time it felt that the "national security" was in jeopardy.
As authority for this broad power, the Government cited the President's oath to "preserve, protect and defend the Constitution" from domestic subversion as well as foreign enemies. Contending that every President since Franklin Roosevelt had permitted such wiretaps, the Government went on to imply that they were even more important now because of the growing violence and rioting in the nation's cities and on its campuses.
Not only did Nixon rely on an inherent authority argument, but he had an infinitely stronger case because Congress had not yet passed FISA. Nice try, though, Senator Graham.
I also want to take a moment to address the emerging "good faith" defense of the President, which is being advanced by Republicans like Senators Graham and Specter who are clearly skeptical of the NSA program's legality. The argument seems to be that while Bush may have acted illegally, he did so based on a good faith belief that his actions were legal, and therefore he does not deserve harsh criticism or Congressional sanction.
I can see why Republicans like Graham and Specter have gravitated toward this argument. It allows them to express their genuine skepticism about the legality of the program without having to criticize the President for authorizing it.
But there's a major problem. Everything the administration has done for the past four and a half years indicates that it does NOT have a good faith belief in its own legal arguments. If Bush administration officials had any confidence whatsoever in their legal theories, they could at any point seek judicial blessing of the NSA program. All they would have to do is try to introduce evidence obtained via warrantless surveillance in court, either in a criminal prosecution or in an application for a FISA warrant. Either move would force the court to address the legality of the NSA program. In the latter context, the administration would have the benefit of being able to present its case ex parte and in secret.
But they are unwilling to do this, and for one simple reason: they are pretty certain they will lose. This paragraph from a U.S. News & World Report story last week is particularly revealing:
White House lawyers, in particular, Vice President Cheney's counsel David Addington (who is now Cheney's chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials.
So they were willing to deceive judges and to drop entire prosecutions rather than test their legal theories in court. If that's not good faith, what is? The article goes on to make the obvious point:
[John] Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."
But that's not the only evidence that the administration doesn't have much confidence in its own legal theories. The administration has worked feverishly to scuttle any further investigation into its activities and to challenge the standing of litigants (like the ACLU) who have sought to have the legality of the NSA program adjudicated in court.
And, perhaps most glaringly of all, there's the fact that the administration's primary legal argument was apparently conceived years after the program was first authorized. It's pretty hard to have a good faith belief in the merits of an argument you haven't even thought up yet. The administration is so confident in the merits of its legal theories that it won't even release the relevant OLC legal opinions, despite repeated requests.
No, despite what "several Republicans" argue, this administration does not and has never had a good faith belief that its legal theories will prevail in court.
But, you may protest, perhaps Bush did have a good faith believe that his actions would help prevent terrorism, even if he knew they were probably illegal. Isn't this a mitigating factor? Sure, if it's true. And for all I know it is. But there are two points we must not lose sight of.
First, because this surveillance is taking place in secret and without judicial review, we have no way of knowing who is actually being spied upon and why. We must simply take the administration's word. But history has shown that a president's word isn't worth a whole lot in this area. Surveillance authority was abused not only by the Nixon administration, but by his Democratic predecessors. The whole point of FISA was so we wouldn't have to take the president's word anymore. Even if you trust Bush to use this power only on terrorists and never on anyone else, can you really say the same about all future presidents?
Second, even if Bush's motives are as pure as the driven snow, it doesn't justify knowingly violating the law, at least outside of very extreme and short-term emergency scenarios. The viability of our system of constitutional government depends on the willingness of our leaders, particularly the president, to take seriously the concepts of separation of powers and checks and balances embodied in our Constitution. Subverting these concepts is dangerous. As John Dean said at Friday's hearing:
I must add that never before have I felt the slightest reason to fear our government. Nor do I frighten easily. But I do fear the Bush/Cheney government (and the precedents they are creating) because this administration is caught up in the rectitude of its own self-righteousness, and for all practical purposes this presidency has remained largely unchecked by its constitutional coequals.
Amen to that.
Graham was desperately trying to differentiate between Watergate and the NSA spying, saying Watergate was clearly outside legitimate national security interests, whereas the NSA spying is not.
ReplyDeleteBut in so doing, he glosses over the most important point. If the administration's theory of these "inherent powers" is correct, the president's discretion in matters of national security is unreviewable and unconstrainable.
Under such a theory, it couldn't matter less whether the violation alleged had a good faith basis or not.
If someone could magically bring Nixon back from the dead, and he then went on to win the 2008 election, how comfortable would the Senate be to give him the powers that they are giving to Bush. Good people with good intentions should not be setting precedents for bad people with bad intentions
ReplyDeleteit appears that Senator Obama (!) is also using a version of the "good faith" argument:
ReplyDelete"The question is whether the president understood the law and knowingly flaunted it, or whether he and his aides, in good faith, interpreted their authority more broadly than I and others believe the law allows."
from mdbiscan's diary at dailykos - mdbiscan posted a letter he received from Senator Obama's office.
We already know what Barak Obama is. He is Hillary Clinton. He will never take a controversial stance. Ever. And he will do everything possible to distance himself from the "fringe Left" so that he will look moderate.
ReplyDeleteHe doesn't care about pissing off the "base" because he knows, at the end of the day, all Democrats and liberals will vote for him over some Republican no matter how angry they are at him.
He doesn't believe in a single principle other than The Career of Barak Obama.
As I said, he is Hillary Clinton. In every single respect. The sooner you accept that, the less disappointment he will bring you.
I love this blog; it's presents complex ideas with clarity and logic. But it astounds me that none of you have admitted to reading the post script to the Constitution. It's there, although written with crayon in tiny, childlike letters:
ReplyDelete"P.S. IOKIYAR"
Excellent analysis that completely exposes the underlying dishonesty of the “good faith” arguments, which they themselves don’t believe.
ReplyDeleteBut why does Lindsey Graham want to express skepticism about the legality of the program without having to criticize the president? Politics. This stance creates the impression that the Senate is actually doing its job by checking the executive branch, but what it’s really doing is giving cover for administration lawbreaking. This way, the program will come out unscathed, looking like its passed some sort of investigative scrutiny, when in fact no one in the Congress still has a clue as to what it’s about.
Ultimately, the administration has to fall back on one single defense: 9/11.
9/11 and the “war on terror” justifies anything and everything the president does. Take a look at the new memo and video from the GOP which encapsulates what John Dean called, the rectitude of its own self-righteousness
The video is based on the ultimate defense of this administration: fear. It starts with explosions, invokes 9/11 and terrorism, and suggests that while the President is working to keep us safe, those who bring up these silly arguments about obeying laws are making us more vulnerable to terrorists. Here’s what it says:
On September 11th Terrorists Declared War On Our Country.. Today TheTerrorists Still Fight That War The President Is Working To Defeat The Terrorists Aggressively Pursuing International Communications Of Suspected Al Qaeda Members To And From America
Censure? Impeachment? Is This The Democrats’ Plan?
The President Is Taking The Necessary Steps To Keep America Safe Who Do You Stand With?
Do you stand for keeping America safe or with Russ Feingold?
Now, Nixon tried a version of this as well, and it would be interesting to dig up quotes from those years like Glenn did yesterday. But since we were at war then too, that defense should have applied to Nixon as well. “Love America or Leave it” was the bumper sticker back then.
So, let’s ask, did those who questioned Nixon actions undermine our country? Did it undermine our troops who were at war? Was it “anti-American” to expose what Nixon did? Well, Nixon and his cronies sure thought so, and those who have emerged to control the Bush White House continue to think so as well. That’s the problem.
But what is different now from back then is that there were still Republicans who took our basic principles seriously.
As A. L. put it, “The viability of our system of constitutional government depends on the willingness of our leaders, particularly the president, to take seriously the concepts of separation of powers and checks and balances embodied in our Constitution.”
But those concepts are no longer taken seriously by the either the White House or its allies in Congress who have sacrificed them on the alter of “permanent power.” And this pursuit of permanent power, like 9/11, justifies everything and anything.
I was walking behind two people the other day when one asked the other, “whatever happened to “law and order” Republicans?”
The question was met with silence.
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ReplyDeleteWell, at least the administration never fails to dissapoint.
ReplyDeleteI said:
"At every turn I find that the administration is answered by the Founders."
They said:
He's acting in good faith so it doesn't deserve reprimand
The Founders said:
"[I]t is a truth which experience of all ages has attested, that the people are commonly most in danger, when the means of injuring their rights are in the possesion of those of whom they entertain the least suspicion." - Alexander Hamilton, Federalist #25
Americans don't really care all that much about the "rule of law.
ReplyDeleteOnly a tiny fringe of those who pay attention to politics actually believes president Bush has "broken the law."
Your observation is thus based on a false premise.
The polls I have seen show that the country is about 50-50 on whether Bush has broken the law. Fifty percent of Americans is hardly "a tiny fringe."
ReplyDeleteWell, if 50% is hardly a tiny fringe, why do you seem to dismiss them with your statement that Americans don't really care all that much about the "rule of law.”
Why don’t you say “about half of Americans” don’t care about the rule of law. Why do you seem to include almost all of us in that generalization?
Isn’t that precisely difference between hard-core Bush supporters and the rest of us? I don’t get it.
Amen. Why trust in democracy and the rule of law when it means you might lose?
ReplyDeleteIt was the same with Iraq. The neocon theory behind the Iraq invasion dates from the mid-nineties (forget oil and empire for the moment) and arose from the fact that, without the Soviets to oppose us, the United States should use its great power for good: to upset the stagnant status quo, to bring democracy and stability to the region, and to secure Israel and U.S. interests there.
These are not bad goals in and of themselves. It is strategic thinking, bold, forward-looking, even visionary. So why not just present their argument openly to the American people, vet it in the vaunted marketplace of ideas? Two minor problems. One, invading a sovereign nation for such purposes is … illegal. And two, the American people would never get behind having their sons and daughters spill their blood half a world away in service to some neocon political science experiment.
In essence, they’d be pretty certain to lose in the court of public opinion. More saleable “good faith” justifications would have to be found. In early 2001, even if they had the motive and the means, they lacked the opportunity. September 11 provided the opportunity.
The polls I have seen show that the country is about 50-50 on whether Bush has broken the law.
ReplyDeleteThe polls you've seen don't reflect reality. Do you actually believe half the country thinks president Bush has broken the law? If this was the case the politicians would be falling all over themselves to jump on the censure bandwagon. Instead, most are keeping away as if the issue was plague-ridden. Politicians know the real mood of the nation, and they act accordingly.
The Feingold censure movement, as the NY Times said yesterday in its headline, was "met with an empty echo." That says more about the public mood than the polls you mention, don't you think?
But history has shown that a president's word isn't worth a whole lot in this area. Surveillance authority was abused not only by the Nixon administration, but by his Democratic predecessors. The whole point of FISA was so we wouldn't have to take the president's word anymore.
ReplyDeletePart of the narrative we're working on here includes the argument that this is not a partisan issue. It's a constiutional issue, part of core American values about government checks and balances.
I think it's important to point out that this is not something republicans do. It's something every president will do, if permitted to. And such surveillance will inevitably be abused. It will inevitably be used for political purposes, as with Kennedy, Johnson, Hoover for nearly two generations and Nixon.
I find it more than a little incomprehensible that there are no Republicans concerned about this. The only possible explanation is that they are very confident that they will not lose either House in 06, nor the presidency in 08.
When viewed in the context of a program of spying on Americans, you have to wonder whether the two are related. Surveilling and data mining Congressional challengers, especially potential incoming freshman, would be a very powerful tool in producing oppo research.
Yes, half the country thinks Bush has broken the law, but far less than that demand meaningful consequences……. I think, that the rule of law plays an inferior role in the United States.
ReplyDeleteYou are totally discounting the political calculations of those who believe that the president has broken the law, but that impeachment is not politically feasible at this time – and that includes Glenn Greenwald.
You demand absolute purity from your politicians (and others), and you are not going to get it. That does not mean, however, that they don’t believe in the rule of the law.
The fact that this is not the case demonstrates, I think, that the rule of law plays an inferior role in the United States.
ReplyDeleteI find it more than a little incomprehensible that there are no Republicans concerned about this.
Not so long ago (December 1998), Republicans were passionate about the rule of law.
Mr. HANSEN.
The question before us today is whether we, too, will turn away from our long heritage of the rule of law, the love of truth, and instead place our faith in the brutal role of power, the fickle winds of appetite and the manipulation of public opinion.
Correct me if I'm wrong, but didn't the Bush administration: (a) ask for changes to the FISA law as part of the PATRIOT Act; (b) secure those changes from Congress; and (c) praise the changes as adequate?
ReplyDeleteFurther, didn't the Bush administration: (d) ask for language in the AUMF that would permit use of "force" domestically; (e) lose that argument; and (f) acknowledge that they'd lost the argument?
I can almost imagine an "acting in good faith" defense if Bush had never brought up any of this stuff with Congress. Ignorance of the law could, possibly, have served as a defense--gotten him off with a warning, at least. But once he'd acknowledged the constraints on his powers by requesting their expansion, any "good faith" defense for breaking the law subsequently went out the window.
Insert any number of examples from The Real World here.
One could say that the 50% who believe Bush broke the law also simply shrug their shoulders and say, "so what?" Or, "they all do it!" Or,"what can anyone do about it?" Or, "he broke the law, but what does that have to do with me?"
ReplyDeleteI believe the polls which show at least 50% believe Bush broke the law, but so many people in this country feel alienated from the government, from the possibility that anything they feel or do or say can affect the course of events or can influence those we have elected to serve us. Most people anywhere are more concerned with the daily exigencies of their lives, their families, their jobs, paying their bills, etc. They may place concern with the doings of Washington far down on their list of priorities to think about or act on, even if, when asked, they do have opinions about it.
Further, they may feel alone in their opinions, they may feel no connection with other citizens who may feel similarly. The propaganda which streams from our television screens via Fox and CNN and (perhaps to a lesser, but not negligible extent), the other broadcast networks relentlessly tells us how virtuous (sic) and heroic (sic) and well-intended (sic sic sic) and effective (fucking sic) Bush's policies and intentions and actions are, so they may feel a discordance between their own feelings and that which they see presented around them. In short, the citizenry is atomized, effectively neutered as a political force, as they have been made to feel they have one and only one function to serve politically, and that is to go very occasionally and cast a vote for one of two choices, each of which is but a dim simulacrum of the other.
The general attitude of the citizenry may be seen as resigned cynicism or hopelessness, and can be encapsulated in the old bromide, "You can't fight City Hall."
Excellent post, by the way, AL.
And, as for my views on the "good faith" defense: NO PRESIDENT, NO ADMINISTRATION, SHOULD EVER BE ALLOWED TO ACT SIMPLY ON "GOOD FAITH." BY DEFINITION, PEOPLE WHO HAVE EXPENDED TIME AND MONEY TO OBTAIN POLITICAL POWER ARE TO BE SUSPECTED AT ALL TIMES OF ACTING IN THEIR OWN INTEREST AND FOR THEIR OWN AGENDA. GUILTY UNTIL PROVEN INNOCENT.
(This does not mean I reflexively view all elected public servants as brutes and criminals who act only to enrich themselves and their cronies, at the expense of the electorate, (although many are no more than this), but that, in cases where decisions of moment must be made, where crucial acts of government must serve to protect or further the interests of the people, those decisions and acts MUST ALWAYS be subject to close scrutiny by the people and oversight by Congress. It is NEVER sufficient for any public servant or administration to say, "Just trust us.")
It's sad about Obama. I knew it when a few Dems finally got the courage to challenge the Ohio vote and Obama stated that Bush had definitely won, but that it was important people not be disenfranchised. Something like that. Very brave.
ReplyDeleteYes, half the country thinks Bush has broken the law, but far less than that demand meaningful consequences.
ReplyDeletedavid shaughnessy: I think there is an element of truth to your assertion that people in the U.S. are not as devoted to following rules as some other Western nations. I think there is a strong strain of pragmatism underlying American culture, and a comparitively greater willingness to toss aside or work around tradition, ideology, or rules to embrace a solution that works.
Having said that, though, I see America's reaction to be far more substantially related to the issue's treatment by the corporate media than to people's purported indifference to the actual underlying issues.
By and large, the corporate media have been treating this as a sideshow with predominantly partisan implications, instead of a fundamental re-working of the nation's Constitutional structure. For example, most of the newspaper coverage I've seen of Feingold's censure resolution have focused at least as much attention speculating on Feingold's motivations for introducing the bill as they have on the bill's merits. (This is a classic and extremely effective framing device the MSM uses extensively to derail honest debate about progressive initiatives.)
As Glenn has pointed out, it's amazing that half the American public has managed to see through the 'national security' and 'partisan politics' angles and conclude that laws have been broken. I think people aren't speaking out about because they think that most of the rest of the country -- or at least the powers that be whose opinion counts --doesn't think this is an important issue, and they can do little as individuals to change that, as Robert1014 expresses very eloquently.
the so-called sanctity of the rule of law is primarily rhetorical. Purity has nothing to do with it; it is demonstrating that something matters by actions not just words.
ReplyDeleteDoes Bush deserved to be impeached? Yes, of course. Does Glenn Greenwald support impeachment? No. Does that mean that he doesn’t believe in the rule of law? And that all his posts are just rhetorical not followed up by the necessary “action” of his calling for impeachment?
Of course not. Glenn has made a political calculation that at this time impeachment is not feasible and not politically wise, that doesn’t mean that he is a hypocrite or dishonestly not following up his words with action.
Some politicians have made that same political calculation with regard to censure, but that does not mean that they do not believe that Bush doesn’t deserve to be censured, or that they don’t believe in the rule of law. But that’s your conclusion – and you attribute that to the entire population.
In the real world, David, we have to make such political decisions and work the politicians we have, not the ones we wished we did. This is very similar to the argument you made when you were insisting that Glenn stop working with politicians of both major parties. It’s all or nothing with you.
If you are right that Americans fundamentally don’t care about the rule of law, then Glenn should just shut down this blog – because his entire purpose is to convince others that Bush has broken the laws and violated the Constitution. If Americans aren’t going to concerned about that, then there’s no point in pursuing this issue. Glenn, however, is betting that if they really understand what’s at stake, that actions will be taken.
I’m sorry you’ve given up.
Zack said: So, let’s ask, did those who questioned Nixon actions undermine our country? Did it undermine our troops who were at war? Was it “anti-American” to expose what Nixon did? Well, Nixon and his cronies sure thought so, and those who have emerged to control the Bush White House continue to think so as well. That’s the problem.
ReplyDeletePlease keep in mind that :...those who have emerged to control the Bush House ...were also in the Nixon White House. Chaney and Rumsfeld never left Washington.
Undercover Blue said: These are not bad goals in and of themselves. It is strategic thinking, bold, forward-looking, even visionary. So why not just present their argument openly to the American people, vet it in the vaunted marketplace of ideas? Two minor problems. One, invading a sovereign nation for such purposes is … illegal. And two, the American people would never get behind having their sons and daughters spill their blood half a world away in service to some neocon political science experiment.
The "War" in Iraq has fully accomplished Neocon priorities. The defense industrial complex is recording record profits, Haliburton has been save from bankrupcy, and Big Oil is also benefitting from record profits.
War profiteering was and remains at the heart of the Bush administration's foreign policy. Average Americans and certainly the country of Iraq and its people were and remain expendable as "collateral damage" to the cause of corporate profits.
While a discussion about polls how people generally feel about the rule of law is interesting but I feel that it takes away from the central issue: this administration did disregard existing law, for whatever reason, and then, after the fact, offered its justification and rationale. Fine, let it offer up all it wants - it still disregarded the law and there should be some sort of reprimand for that behavior.
ReplyDeleteIf we are not a nation of laws and upholding those laws, then what are we?
Outstanding rebuttal to the "good faith" charade being sold by Graham and Specter.
ReplyDeleteI think this episode with Bush, like the Clinton episode, indicate that, to the American populace generally, the rule of law is more a suggestion than a rule.
ReplyDeleteClinton was never convicted of breaking any law. He was exonerated completely in the Whitewater affair. When he was questioned under oath about sex with Monica, he was handed a legal definition which did not include oral sex. He did not commit perjury, because he answered the question accurately, given that definition. Of course, the definition was designed to entrap him, because the bastards knew what had happened, and were trying to trick him into something that would play to the public as if it were perjury, in other words, something sorta like perjury - since they couldn't find a real crime after looking under every rock and pebble. Basically, although it runs against the GOP myth, Clinton ran a clean operation - witness the lack of indictments against members of his administration - again, not for lack of his enemies searching for any way possible to take them down.
In any case, it's ridiculous to equate the two - a man acting like most men who have affairs - secretive - and a president breaking laws meant to protect the citizens from tyranny. I get tired of the two of them being equated. Clinton isn't perfect, but he had far more integrity. He was a policy wonk. He stayed up late at night looking for solutions. He was highly qualified for the job. He didn't get bored at meetings about economics. He wasn't some non-horse-riding pretend cowboy tending to some fake ranch.
The American public didn't go along with impeachment not because they didn't care about presidents following the law, but because they understood that it was really a witchhunt, and it WAS about the sex, not the lies, the whole thing was basically designed to humiliate him, distract him, and reduce his effectiveness in office if not get rid of him altogether.
The American public now is not altogether convinced about Bush breaking the law because, except for news junkies like us on our computers all the time, they aren't hearing that he did. The mirror has been deliberately fogged up, as usual, so you have to be dogged to get at the truth. At least Feingold is telling the truth, and if his colleagues would join him, the public would be convinced.
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ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteWhat does it mean to say that one "believes in the rule of law"? Doesn't it mean that when the rule of law is violated there will be consequences? If not, and since it evidently does not, my made point is made: the so-called sanctity of the rule of law is primarily rhetorical. Purity has nothing to do with it; it is demonstrating that something matters by actions not just words.
ReplyDeleteTo Zack's excellent points, with which I agree almost entirely, let me add this:
Many people (I'm not saying you're among them, David) take positions and advocate political measures which have no chance whatsoever of ever becoming anything real, because by doing so, they can feel elevated and superior and pure. They know that what they advocate will never manifest into any consequences and will always just be confined to the irrelevant world of lofty fantasy, but they advocate it despite that fact - really because of that fact - because their goal isn't to facilitate any change but just to feel pure and hear themselves advocate lofty ideals.
One could easily say that those people are the ones who really don't care about any consequences ensuing from their principles. Many people who scream and yell about impeachment, knowing that it won't happen, are demonstrating, by doing so, that they don't care if anything happens in the real world as a result of their beliefs. They are only interested in remaining about the fray, avoiding dirty hands, and proving to themselves that they are the purest.
I can't imagine anyone who would claim that censure is no big deal, that it's inconsequential. It has happened only once in our entire history. Presidents who were threatened with it fought vigorously against it. The one President who was censured had his party reverse it years later. It would be momentous and humiliating for the Congress to formally condemn the President for breaking the law. It would be an indescribably potent blow for the values to which you proclaim adherence.
And under no stretch of the imagination would it preclude impeachment. To the contrary, it is the only thing that could bring impeachment out of the world of pipe dream fantasy and into the world of remote reality. Only if Americans realize the gravity of what is taking place - and surely the second censure in the history of our Republic would underscore that like few other things would - can impeachment be something besides a pipe dream of a few people.
I've pointed out before that many people who just give up and insist that this whole thing is hopeless and that we will inevitably lose are doing that because it relieves them of the responsibility for doing anything else, for fighting - it gives them a built-in excuse for losing ("it's not my fault - the media is too unfair, or the other side cheats too much, or my fellow citizens are too apathetic and indifferent" - so THEY are always going to win and we will always lose, so there's no point in trying").
To me, the opposite side of that coin are people who pursue lofty goals that they know have no chance of ever succeeding, and don't really care if they succeed or not. That, too, is often a device for relieving oneself of responsibility for actually changing or accomplishing anything.
Nobody who has affected any change has done so with an unwillingness to sacrifice a little purity, to get a little dirty. If one cares about consequences, a refusal to do so is not a virtue.
David,
ReplyDeleteToday, when most Americans think of the rule of law, they are thinking of the laws that are used to keep violent criminals and terrorists behind bars. They are not thinking about the laws that protect them from the government usurping their rights and curtailing their liberties.
Thus when they think about the rule of law in the former sense, they think in terms of giving the government whatever additional power is needed to keep Americans safe and secure from physical violence.
Whenever they think of the rule of law in the latter sense, they are more likely to envision trial attorneys and/or the ACLU attorney fighting to protect the rights of the criminals and terrorists they are so afraid of. They never think of the ACLU fighting to protect their rights. After all, who needs rights if you are not a criminal?
That's why you hear people say things like "I don't have to worry about the NSA spying on me -- I am not a criminal and I have nothing to hide even if they were listening in." Not seeming to realize that the simple act of listening without a warrant is a violation of the same rule of law that protects them from terrorists.
I can only explain this by recognizing that the rule of law is just not as sacrosanct in the United States as I had imagined it to be. I have no agenda; I am merely making an observation about the American character
ReplyDeleteNot long ago, David, you were admonishing Glenn to start some sort of internet-powered third party because he had “really tapped into something.”
Now you seem to be saying that there’s nothing to “tap into” because of a fundamental flaw in the American character. Which is it?
Now I understand and share your dismay over the lack of support for censure, but this is just one round in a long fight, and Feingolds’ actions have served to further this cause. I never expected it to pass, but it is slowly changing people’s minds and causing them to ask questions. That’s the first step.
Yes, it’s depressing where we are, but if we accept your generalization about Americans and the opposition there’s no point in continuing the battle.
The explanation, I suggest, is that this is because Americans by and large are not purists, when it comes to the rule of law or otherwise.
Now I’ll agree that applies to the cult of Bush, but that’s not a majority of Americans by any means.
No, I suggest that the opposition politicians have been so frightened by the Rovian machine regarding their patriotism and being weak on national security/the “war on terror,” that they are cautious to the point of being spineless. Look at the GOP ads I linked to – that’s what causes the opposition to act the way it does – not because they don’t believe in the rule of law.
There are still many Americans who are confused on this issue and that is precisely the goal of some Bush supporters. They want to make this a complicated issue that only Constitutional lawyers can understand.
What Glenn does is cut through the legal B.S. and explain this in common-sense terms that non-lawyers can understand. Yes, we have a long way to go, but at some point, there will be a different political calculation in the mix – I think we’re getting there.
If they believed in their own arguments, Jose Padilla would be on trial on terrorism charges in New York, not for minor charges in Fla. See the Luttig Rage( remember when he realized he and his circuit were used?)
ReplyDeleteYes it is all about bad faith: not caring whether what they do is legal, right moral helpful or competent- all they care about is political power-theirs.
Zack said: "Does Bush deserved to be impeached? Yes, of course. Does Glenn Greenwald support impeachment? No. Does that mean that he doesn’t believe in the rule of law? And that all his posts are just rhetorical not followed up by the necessary “action” of his calling for impeachment?"
ReplyDeleteI may be mistaken, but I believe Glen does support impeachment...however, given that an impeachment vote will NOT occur, he supports censure as the most practical, likely action which will be taken.
If I am mistaken, and Glenn has pronounced that he simply does not support impeachment, I will appreciate being corrected.
Also, to David Shaughnessy's observation about the apparent willingness of those 50% of Americans who believe Bush broke the law to give him a pass, and to his inference taken from that that Americans have only a rhetorical concern with "rule of law," well...of course...to a point.
I've already gone over some of the reasons why I suspect many who see Bush as a lawbreaker do not rise up against him, or call for his ouster, but David's inference is also valid to explain some of this inaction. Yes, Americans all give lip service to supporting "law and order," but we all have our own ideas as to what that means, and what emphasis to give to which laws, and how much latitude we're willing to give lawbreakers, especially considering WHO the lawbreakers are and what laws they've broken.
To many, Bush's actions may seem inconsequential, or the ramifications are so abstract they don't see the damage being done to our very form or government. A President committing adultery, while a much more minor infraction, is more concrete, much more an event they can imagine (or have experienced) in their own lives. Yes, I know Clinton was (rightly) impeached for having perjured himself, but many Americans don't grasp that or consider it: to most, Clinton was in trouble only for the act of having committed sexual indiscretions.
Even aside from the many Americans who are Christian, and who abhor such behavior on purely moral grounds, people understand viscerally how inappropriate and destructive adultery is, and how unseemly for our President. They supported his punishment purely because his act was in such bad taste. (Of course, we must remember, MOST Americans didn't support Clinton's impeachment, and his support among the citizenry was much higher during his travails than Bush's is now. This brings us to another reason for the seeming lack of public outrage: what outrage exists has not been reported by the Quisling media, and, the outrage that might be inflamed if the public were adequately informed has never sparked precisely because Congress and the media act in collusion to minimize Bush's wrongdoing, and therefore the sense of any violations having taken place, even where they're perceived, is muted.)
To the contrary, while 50% of Americans may agree with the view that Bush has broken the law, how many of them consider it really a MAJOR act of lawbreaking? Yeah, he tapped some phones of terrorists without getting a warrant...on its face, that's illegal...but, does that seem so urgent, so real, as a chief executive who has enjoyed fellatio in his office?
The attitude of "I haven't done anything wrong, so I've nothing to worry about" really does exert powerful influence on many citizens, and they fail to see that "doing something wrong" is provisional, and may be changed by whoever is in power at any given time. Certainly, Bush (or any President) deserves to be punished for breaking the law, absent any other considerations, but to many Americans, pragmatists that they are, they don't see any real harm unless they can imagine the consequences to them, directly. If they see themselves as innocent of wrongdoing, they can't imagine how warrantless wiretapping can harm them, really. Well, who's to say what conversations will seem suspicious to the authorities? After all, we've seen the government open investigations on people merely for exercising their right to protest, to speak out against the government. We've seen writers who have indicted this government in their work end on the "no fly" lists, turned away from airports as persons deemd potentially dangerous.
So, I belabor the issue, perhaps, but I think there are many reasons why even Americans who believe Bush broke the law haven't been more ready to agitate for Bush's impeachment or censure: fear, apathy, resignation, a sense that the law broken isn't significant, cynicism, hopelessness, greater priority given to personal concerns, etc.
David S asked: How else do you possibly explain the political calculations being made?
ReplyDeleteThe NSA Scandal is ongoing. We lack the benefit of resolution and hindsight. In the meantime, to say that American's have little to no regard for the rule of law, is I believe not only a broad generalization that cannot be proven but also a favored tactic used by politicians of both parties. To wit: When in doubt, blame the average American.
It is essential that we keep a degree of perspective as we watch the "political calculations" that surround this scandal unfold:
1. BushCo did not want the story to break in the NYT and went so far as to call Pinch and Heller into the WH to attempt to stop its publication.
2. As FDL has pointed out this morning, the annointed spokesmen for the WH charged with asserting "partisanship" at yesterday's hearings on centure were from two of the remaining three "red" states where Bush's approval rating barely tops 50%, Alabama (Sessions) and Utah (Hatch).
3. BushCo's legal footing for the NSA program is being undercut at every turn by challenges in other areas as regards this tenuous theory of "unitary executive"; i.e. Hamdan decision, Gitmo detainee cases in the pipeline, and civil suits challenging this program directly. More importantly, like the Gitmo cases, this program has put the administration in a box. They cannot prosecute any cases involving evidence obtained through warrantless wiretapping because the threshold question in each case would be the legal validity of the evidence itself.
4. That portion of the "loony left" that does not trust this administration now comprises a signicant majority of the country. It Bush asserts it, the reaction among the populace is skeptism. Rhetoric is all Bush/Rove have left.
Bottom line: Bush's "political calculations" are extremely limited.
On the issue of whether 'many' or 'most' or 'few' Americans actually think the President broke the law, I think there are a number of otherwise unmeasurable factors that complicate both examination and polling on this issue:
ReplyDeleteFirst, there's FISA itself, which likely the majority of Americans hadn't heard of before this scandal broke, and even those who did likely didn't fully appreciate its potential importance to their lives. Saying the President ignored or otherwise broke a little-known law isn't likely to excite public outcry, especially when the extent of the law-breaking and its potential consequences are unknown. It would likely take mass deportations of American citizens *other* than those of Middle Eastern ethnicity before they fully appreciate the magnitude of the damage here.
Second, the media has (whether due to laziness, ignorance, editorial decision, or self-interested calculation) been slow in drawing a coherent narrative concerning the consequences of the Administration's law-breaking. It would be simple enough to emphasize the law-breaking in and of itself, but again, without appropriate context, the public is likely to simply consider it an oversight and of little consequence to them personally.
Third, the Administration and its fellow travellers have at their disposal and a virtual army of pundits, media outlets, and othersie de facto spokespersons to saturate public debate with its arguments, excuses, and 'frames'. The lingering fears generated by 9/11 have and continue to be exploited with shameless skill, effectively derailing actual debate on the merits of either the law or the NSA program before its even started.
Fourth, there is an inherent cynicism held by the public towards politics and politicians, an almost automatic presumption that they are either corrupt or morally challenged. The recent crop of scandals hitting the Republicans only reinforces this viewpoint; the fact both of President Bush's elections still have a lingering aura of legal doubt to them doesn't help matters.
Fifth, the Administration itself has so undermined its own creditability, both at home and abroad, that at this point only the most blinkered partisan will unquestioningly accept its claims on any issue, though it must be granted this is similarly difficult to guage. Its latest claim that the program was conceived and operates "in good faith" and is targeted only against "bad people" offers no reassurance to anyone who has actually been paying attention to its activities for the last six years.
Finally, Senator Feingold's Censure Resolution is similarly arcane and little understood by the public thanks in large measure to history and the lack of similar measures enacted in the past. To date, only Andrew Jackson was actually Censured by the Congress, a point rarely (if ever) brought up in our schools. Its rarity and the fact it doesn't really sanction the President in any fashion (and thus is less 'sexy' than actual Impeachment) makes it difficult for the public to become excited over or see the point to it.
In short, while we here argue over the Rule of Law and whether Censure or Impeachment are either practical or desirable, the public likely doesn't understand the potential consequences of the Administration's ignoring FISA, knows the Administration is a corrupt basket of incompetent snakes anyway, thinks all politicians are automatically suspect, can't or won't think past the misleading but entertaining spin put out by the RWNM, and feel (with much justification) completely alienated and ineffectual with respect to the government and its activities. The only two remedies offered thus far have been Censure (which is little more than a mild scolding) and Impeachment (which has long been judged to be infeasible here).
Small wonder there's little public outcry or interest. Far easier to let the politicians to hash it out (and pray their own lives aren't unduly complicated by things).
Can any of the six points I've made above be quantitatively measured or codified? I welcome any discussion here.
There are several actions at work to get at the question of the President's NSA spying rpogram. I suggest that they are all worth supporting, even though we might prefer one tactic over another.
ReplyDelete1) The censure motion: Feingold's censure will ultimately fail, but he will gain politically. Most everyday people who support censure, I suggest, are simply fed up with being made fools of by this administration. They know they've been lied to, deceived, and manipulated. They are confused about what is the reason for this, but given the fact that few can live with the anxiety of this confusion, they feel that anything that appears as a clarifying moment will help dispel the confusion. Feingold's simple call for censure dispels that mist.
2) The Schumer/Specter bills: Whatever the implications are for their efficacy in the particulars, they should be supported and modified where possible to make them stronger. In the short run, they could make the administration back off from its misuse of this program; on the other hand, if the administration continues the abuses, then this legislation provides avenues for redress.
3) Court cases alleging abuses by NSA surveillance (via the telecommunications companies) making their way through the judicial system: These should be supported where possible, especially those that directly challenge the administartion's assertions to executive privilege.
A fourth tactic I have suggested is the following:
4) Assertion of the right of the Budgetary committees to exercise oversight of how taxpayer dollars are being used: There is suspicion--based on FBI sources and technological experts--that the NSA programs simply do not and cannot do what the NSA says they can. In other words, it's a boondoggle that costs billions but produces meager if any results. Congress should take this issue seriously and exercise its constituional duty of assuring that taxpayer dollars are spent wisely and prudently.
In undermining the administration's attempt to usurp power that it should not have, all tactics should be considered a viable tool for undermining the executive's illegal and unconstitutional power grab.
Glenn,
ReplyDeleteShould all this go in the direction we want (impeachment), do you think Bush deserves criminal prosecution and prison time after removal from office? Is it even possible?
David,
ReplyDeleteI thing what has happened is that the Republicans have successfully implemented the trope that "every thing is political." There are no substantive issues. All the issues that are raised by Democrats are raised for political rather than substantive reasons. So if you ask a Republican about warrantless wiretapping in a poll, he answers along the political lines he identifies with.
The beltway Democrats haven't helped in this regard, because many of their decisions on issues seems to be politically rather than substantively motivated. The unwillingness to get involved with the FISA issue, and the unhappiness from people like Schumer that it distracted from the ports issue (which in the end wasn't terribly substantive, except, of course for the fact that the administration broke the law).
You should recall that Republicans joinging Democrats during the Watergate hearings was a key turning point. With no Republican support, at all, Republican voters will continue to believe that laws weren't broken, or, if they were, they were broken in a narrow, technical sense that is being exploited by Feingold for political reasons.
Since this very narrative is the one I saw Blitzer using yesterday, there is still a lot of work to be done to get the central story here to be "The president is breaking the law." Once that has happened (and it may), then we'll see what Americans think about the rule of law.
robert1014 said: "The attitude of "I haven't done anything wrong, so I've nothing to worry about" really does exert powerful influence on many citizens, and they fail to see that "doing something wrong" is provisional, and may be changed by whoever is in power at any given time ... pragmatists that they are, they don't see any real harm unless they can imagine the consequences to them, directly. "
ReplyDeleteI have heard the "nothing to worry about" argument direct from the mouths of Bush fans at work.
Here's a good example of "doing something wrong" being in the eye of who is in power, something to prick the imagination. Yesterday I caught a snippet of an NPR feature on Saddam's oppression tactics. They cited Saddam's people keeping records on every high school student. One student's "crime" was disapproving of the war with Iran. Not doing anything even, just disapproving.
Glenn writes: Nobody who has affected any change has done so with an unwillingness to sacrifice a little purity, to get a little dirty. If one cares about consequences, a refusal to do so is not a virtue.
ReplyDeleteMuch as I detest that sentiment -- and I deeply do -- I also know it is true. Our Founders had to form a federal government whose Constitution explicitly permitted chattel slavery, and the continued importation of slaves for several decades. Despite the avidly abolitionist sentiment of some of them, and the fact that slavery is grossly incompatible with the principles of the nation they were forming, it was simply the case that many states would not have entered the union had this compromise not been reached.
But that was not without hideous short- and long-term cost.
Do the Democrats still believe that Bush is so popular that they dare not challenge his authority when "terrorism" is involved? Do they think they will be accused of being "soft on terrorism" if they do so?
ReplyDeleteAre they correct? I doubt it, but I would like to know what others think.
GREAT CRIMES DEMAND EVEN LARGER CRIMES TO MAINTAIN AN ILLUSION OF NORMALCY.
ReplyDeleteChimpy was not put in place we a stolen election in 2000 to be a "nice guy" or perform the "will of the people."
Nothing really hard about this...
Jay Ackroyd said...
ReplyDeletePart of the narrative we're working on here includes the argument that this is not a partisan issue. It's a constiutional issue, part of core American values about government checks and balances.
I think it's important to point out that this is not something republicans do. It's something every president will do, if permitted to.
Sen. Feingold pointed that out the other day. The Republicans are so short sighted they have no earthly idea what this will mean for them in the long run.
But then again, if this were a Democrat president arguing these powers, he would have been impeached long ago.
Americans don't really care all that much about the "rule of law
ReplyDeleteGIVE ME A BREAK!!!!
And what real choices do we have -- offical polls acknowledge that chimpy is increasingly unpopular. These polls are from the same lying liars that told us that chimpy was going to win 2004 by a landslide...
WFT are you talking about -- the majority does not support this administration and polls by indicate they would support impeachment if chimpy is breaking the law.
WHAT ELSE DO YOU WANT? It will not be easy to change such a corrupt sytemt, but refusing to acknowledge the majority wants change certainly won't help.
Americans don't really care all that much about the "rule of law."
ReplyDeleteuuuuuuuuuummmmmmmmm, well I am sure FDL has all the answers -- they think they know EVERYTHING!
Not sure they made much progress talking down to Kansas like they were going to be our savior...
Intolerant people that ooze arrogance are not going to be part of the solution, but they can play savior on the Web and TV.
David S:
ReplyDeleteYou refer to Clinton as a felon. Clinton was ACQUITTED of perjury charges. He was never convicted of any felony.
Two perjury allegations never made it through the Republican-controlled House to the impeachment stage, and on the one remaining perjury charge Clinton was acquitted, 55 to 45 (67 guilty votes needed).
What I was giving was some of the reasoning underlying his exoneration on that charge. In order to rise to the level of perjury, some conditions have to be met and they were not. Here is more detail:
From Wikipedia: Allegations of perjury
The issue was greatly confused by an unusual definition for sexual contact which excluded oral sex. This definition was ordered by the Independent Counsel's Office during the initial questioning which led to the perjury allegations...During the deposition, Clinton was asked "have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court."
His answer was accurate according to that definition. What he would have said had he been given a more normally understood definition of "sex," we don't know. But this was the definition he was given and, technically, he would have been lying had he answered it in the affirmative.
Of course this sounds convoluted, that was the idea, to give Clinton a convoluted definition so they could later make him out to be a liar.
In any case the two situations are very different which is why I think trying to compare them and drawing conclusions about the public's view of lawbreaking is a mistake.
His enemies succeeded in humiliating Clinton and getting some of the public disgusted with him - but the majority, even among those who didn't like the affair, understood that he was on the job and doing it to the best of his considerable ability. Most of my friends were just exasperated with him for not keeping his pants zipped up, given the political situation.
Surely you must see that Clinton had enemies who wanted to bring him down and that, unable to find real malfeasance - you know, violating the public trust, raiding the treasury, high crimes and misdemeanors - they started in on his Achilles heel. Ann Coulter is quoted in Wikipedia as saying to Michael Isikoff: "We were terrified that Jones would settle. It was contrary to our purpose of bringing down the president."
Many presidents have had affairs. Bush Sr., Kennedy, Roosevelt, many of them. None were hounded like this. As he himself said, "They spent $40 million to find out I was a sinner, and I could have told them that myself."
Clinton was known to be a womanizer before the election, and some people didn't vote for him because of it, but he was elected nonetheless. I was disappointed in some of Clinton's policies and pleased with others. His private life, in my view, was nobody's business but his wife's. Men at the top are hit on, rock stars, politicians, etc., and some fend it off, and some don't.
Bush has committed various potentially impeachable offenses far more serious than lying or not lying about consensual sex, and has not been held to task by this overly friendly Congress. According to the Times last week, he set a date of March 10 to invade Iraq whether or not inspectors found WMD, and then continued to claim he was trying to avoid war and it was up to Saddam Hussein. He even suggested in a meeting with Tony Blair painting a U.S. surveillance plane with United Nations colors to provoke Iraqis to fire to provide an excuse for war. Thousands of people have died because Bush misled us into war. Nobody was harmed by the Clinton affair except for his family, and they were a thousand times more harmed from all the publicity than they would have been without it.
I don't know why I'm bothering because people's views of all this are pretty much fixed. I just don't think the comparison is fair. I know too many people who have had affairs, and lied about them, to put that in the same category as misleading a country into war, breaking the Geneva Conventions on humane treatment or prisoners, or constantly breaking a law regulating government eavesdropping, and thereby shredding the Fourth Amendment. We'll have to agree to disagree.
To those concerned about media non-coverage of these events, you might wish to visit this site
ReplyDeleteSen. Feingold pointed that out the other day. The Republicans are so short sighted they have no earthly idea what this will mean for them in the long run.
ReplyDeleteBut then again, if this were a Democrat president arguing these powers, he would have been impeached long ago.
The only possible plan I can see their having is never, ever losing power. They've got their puppet in the wings, George Allen. The temptation to use this program to gather personal information in Congressional elections will be very hard for Rove to resist.
It does not seem at all unreasonable to me that this program is part of a plan to retain power indefinitely.
Well, there's believing in the rule of law, and believing -- literally -- in the primacy of the rule of law.
ReplyDeleteMaking allowances for political considerations would necessarily call into question the primacy issue. We can debate how wise that might be, but it doesn't change the fact of primacy.
I'd also like to point out that perhaps it shouldn't be the default position of sophisticated political pragmatists that censure advances the likelihood of impeachment. As long as we're giving due consideration to the "realities" of political dynamics, we'll have to recognize the distinct possibility that censure is an endgame, and that the new hurdle becomes the claim that "We've already dealt with that. Let it go."
Is there any further doubt that this is the administration of "The End Justifying the Means"?
ReplyDeleteAL:
ReplyDeleteBut there's a major problem. Everything the administration has done for the past four and a half years indicates that it does NOT have a good faith believe in its own legal arguments. If Bush administration officials had any confidence whatsoever in their legal theories, they could at any point seek judicial blessing of the NSA program. All they would have to do is try to introduce evidence obtained via warrantless surveillance in court, either in a criminal prosecution or in an application for a FISA warrant.
1) Your argument does not make any sense at all. Going ahead with the program after notifying both Congress and the FISA court reeks of confidence in their legal position. If the WH thinks they are involved in criminal wrongdoing, exactly why would they regularly brief Congress and perform changes in the program at the request of the head FISA judge? The only reason you might seek a court opinion is because you were not sure of your legal position.
2) Exactly why would the President blow the cover of one of the most secret intelligence gathering programs by arguing it in public court? That is insane. Indeed, it appears that Justice made a calculation to forego evidence gained in the warrantless intelligence gathering which may have been admissible under the Truong decision simply to avoid disclosing the program in open court.
3) The FISA court could not rule on the issue of whether the warrantless NSA program is legal. Thsi court is only authorized to issue warrants. The only request the President can make of the FISA court is to issue a warrant. If they did so, then the intelligence gathering would then no longer be warrantless and the issue is moot. FISA and every other federal court are not authorized to give advisory opinions to the executive on whether their warrantless intelligence gathering is legal.
Actually, to continue to harp onthe Clinton issue, let me put it another way. Here's the difference.
ReplyDeleteBush has committed what Senator Feingold says is "right in the strike zone of what the Founding Fathers talked about when they talked about high crimes and misdemeanors."
Clinton on the other hand had enemies who wanted to drive him out of office from Day One. These people could uncover no real crimes, but instead took a personal peccadillo and tried to amplify it into an impeachable offense. They did not succeed, but they did succeed in humiliating him and his family by blaring forth things that were part true, part lies, and had nothing to do with the public interest.
I don't know why I'm still writing about this. It just bugs me because even though the truth about all this eventually came out, it was the lies that stuck.
If anyone is interested, please see the Hunting of the President by Joe Conason and Gene Lyons. Also see David Brock's apology to Clinton in Esquire, 1998, in which he admitted to simply making up the details about the Paula Jones incident in his original American Spectator "Troopergate" article that set all this in motion - he did it to further the anti-Clinton "Arkansas Project" which was funded by Richard Mellon Scaife. It's nice that Brock had an attack of conscience, and too bad that more people don't know about it - of course, he was subjected to the ritual smear campaign after coming clean.
I know it all sounds very conspiratorial. That's because it was.
Thanks to AL for an insightful post. Now to the "rule of law" debate ongoing.
ReplyDeleteThere is a huge population that doesn't care one bit about "the rule of law" for reasons already mentioned by Robert1014. I would submit one only need look at the percentage of Americans who don't vote to see that's true.
Those who don't vote aren't a majority but they would represent a huge force if ever mobilized. The million dollar question is how does one mobilize those who don't care enough to vote. I'm not educated enough to be able to quote the phrase or credit the speaker but I have read and do believe the price of our freedom is vigilence.
Georgelo: On why eleigible voters don't vote, see this article. It's a time-worn question that ranks up there with why likely voters won't vote for an atheist.
ReplyDeleteInteresting reading here this morning. Most commenters seem incredulous that the Committee had a problem with whether the President acted in good faith. “What? He’s a Republican, you dolts! Good faith – fah!” One of the advantages of the internet is that one may return to the posts of another day and re-read them in the light of what actually has occurred. [The “cornsilks” who blow in the pundit’s wind haven’t the patience to even review their own last comment, much less anything else.]
ReplyDeleteIf one were to return to Mr. Greenwald’s touted presentation, one will see how the issue of good faith was dealt with. “The Bush Administration is Republican and what are Republicans?” Thus was the issue of good faith covered.
Once one steps outside the cocoon into the real world, that argument that was met with huzzahs in the cocoon is met with a somewhat different reception. In the real world Democrats and Republicans are pretty much the same on good faith. And by the way, where is the Democrats good faith in bringing this action?
“Why, we’re trying to prevent another Nixon! And here is a penitent soul from that era to prove it.” Of course, he is flogging a book, is a convicted felon and no one really remembers just what role he played in the Watergate affair, but the NAME! They will remember the name! Great theater. However, eventually things got down to what evidence did he have that Bush had a venal motive for his actions. He had none.
Readers should discern a pattern here. This is not rocket science. Where Democrats would convict Bush, the rest of the country is very likely to convict the Democrats! The chastened liberal press cannot be relied upon to carry the Democrats water. Without that key element...
Thank God that most Democrats were smart enough to read this one correctly. It will go down as a folly of the far left [just one of many, move along, nothing to see] and the Democrats will look elsewhere for their campaign-defining material.
Meantime, more ad hominem from the faithful [with Diary on Kos].
Exactly why would the President blow the cover of one of the most secret intelligence gathering programs by arguing it in public court?
ReplyDeleteBart, the FISA court is secret and the presiding judge already knew about the program. Indeed, when the presiding judge found out about the warrantless NSA surveillance, she told the administration not to use any evidence from warrantless surveillance to apply for FISA warrants, reasoning that such evidence was "tainted" by the illegality of the program.
If the Bush administration truly believed in the merits of its legal theories, it would challenged the presiding judge's decision in the FISA Court of Review. After all, if the program is legal, there's no reason to exclude evidence obtained via this surveillance. This proceeding would also have been ex parte and secret.
They haven't done this, and the reason could not be clearer. They have absolutely zero confidence that their legal theories will convince any federal judges.
The program is in the open now, and the administration is still actively trying to scuttle any legal adjudication of its merits. They have no confidence at all in their legal theories.
Fool me Once
ReplyDeleteNo WMDs. No Osama bin-Laden. No Help for New Orleans After Katrina. NSA Domestic Spying.
How Many More Lies Can You Take?
And how long do Bush and the Republicans think they can make fools of us?
Not to beat a dead horse, the one case cited publically as successful use of non-FISA surveillance ended in a now-disputed plea bargain. Iyman Faris, the confessed Brooklyn Bridge saboteur, was told to sign and accept twenty years or he'd be declared an "illegal" combatant and essentially disappeared. So the non-FISA warantless wiretaps which apparently caught him have not been tested in court.
ReplyDeleteAfter an exchange with John Schmidt to which Glenn was a party, it seems clear this comes down to very, very, very simple matters.
ReplyDeleteDefenders: The FISA statute infringes on a president's constitutional power to wage war
Opponents: The determination of constitutionality is a *judicial* function, so the president's actions violate separation of powers.
Defenders: Attorney General Levi said that "'Congress could not encroach on the President's constitutional power'" to surveil foreign terrorists.
Opponents: Which no one disputes, However, to determine who is and who is not a foreign terrorist requires a certain amount of due process. So, again, the president is encroaching on judicial authority by making a unilateral decision.
Proponents: No one has alleged a specific crime by the Administration.
Opponents: Intelligence agencies face fines and imprisonment for speaking without permission and Congressional investigations have been impeded. It is not reasonable to expect specific allegations to surface. However, Russell Tice (who has faced job loss and defamation) has asked to testify to Congress about what he believes are specific crimes and other intelligence agents have urged investigation, both of which actions are completely unprecedented.
I think I have represented the two sides of the debate fairly and in all the detail they deserve. I also don't think there is any doubt which side a person committed to defending the Constitution would choose.
A lot of comments on this thread are great, but I would suggest that people focus on three key issues: (1) separation of powers, (2) exigency, namely what sorts of conditions would be required for an Executive to assume functions normally conducted by another branch of government, and (3) due process, especially the issue of who does the review. Everything else, with one exception, is a distraction.
The exception is this: why should Americans trust a guy who we know lies, tortures, misuses intelligence, retaliates against political opponents, and starts unnecessary wars? But for Bush's defenders, that's an article of faith, not really under debate.
--js
AL, you do the most amazing research--really impressive. Also, great article.
ReplyDeleteI think if John Dean hadn't been there yesterday, Graham might have succeeded in making the case that Watergate was different because it didn't involve security matters, but that was a rather dramatic exchange when John Dean explained about Ellsberg's psychiatrist's office break-in being the thing Nixon was most concerned about covering up, a fact that most who were watching, like me and Lindsay Graham himself, probably didn't know.
How inconvenient for Lindsey Graham, who had obviously prepared a good deal of his attack based on that same issue to have someone there who actually knew the facts, for a change.
Also, I picked up the NY Times this morning and when I first glanced at it, I thought half the world had disappeared in a nuclear attack or something, because it has the largest story with the biggest text on the front page that I have ever seen in my life.
But when I started reading, it was a huge blow-up of a conversation to 911 from someone said to have been in the World Trade Center. I don't think that would come through in online versions, but the text of the conversation itself was blown up to cover literally half the front page.
I was extremely offended.
What's the point? Why does the NY Water Carrier now deviate from long standing policies and blow up a front page story like that? I doubt the attack on Pearl Harbor got that much space and that large a text.
Do they
l) What to point out that the response was inadequate?
2) Want people to hate Muslims?
3) Want people to sign off on the establishment of a police state and the formation of a secret police force our of fear something similar could happen again?
4) Stir up peoples' emotions? To what end? For what purpose?
What exactly? This is something that happened over four years ago. It's not new news. What are we being prepared for, with the aid of the Water Carrier?
So I wonder if there is any research which addresses the issue of what criminal responsibility for war crimes can newspapers which deliberately help an Administration enter a war in which over 100,000 people have been killed knowing that the public is being lied into the war, and they are the ones who are doing the lying, with all their cozy Woodwardish relationships which their top brass knows represent simply the PR arm of government?
Can a newspaper be tried for war crimes if it is proven that they withheld vital information and distorted other information, and they had a "reasonable expectation" of knowing that they were printing lies, and those sins of omission caused a hundred thousand people to die?
If not, why not?
Finally, since they want to take the whole front page blowing up a phone call from someone inside one of the Towers, wouldn't a good follow up story be "What really happened?" and "Who was really responsible"?
I don't think too many people still think that politicians like Specter are going to be bringing them the truth about such matters when they are "officially" investigated by the very government who should be the subject of the investigation.
Would anyone trust Lindsey Graham to head up such an investigation?
(original misplaced)
ReplyDeleteIt's a shame that this hearing was so poorly attended. Even if you disagree with Feingold's notion of censure, the hearing was useful in airing various options as to what Congress should do regarding Bush's warrantless domestic spying. Here are a few notes.
The hearing started with Cornyn's swift kick to Dean's gonads. Texas classy. After which he graciously left the room.
Having no other argument Specter stuck with his theory of "lack of bad faith". This was rather weak, when I'm caught driving 50 in the 35 mph zone, it's kind irrelevant whether I did it in bad faith or not. The administration was caught in clear violation of US statues (spying on Americans w/o warrants), bad faith or not, they are criminally liable.
Also for the first time Specter clearly stated that his intention is to legalize an existing program. That's ex post facto legislating that happens to be explicitly prohibited by the Constitution.
Being in the state of war was cited profusely by GOP-ers to justify Bush's actions. The fact, however, is that this country has been in the state of war permanently since early 40s, Nazi Germany first, cold war later, Panama, Afghanistan, Iraq, now terror wars with no end in sight. So why pass any laws to regulate anything?
It was interesting to watch Graham's chaotic thinking aloud. After much struggle he finally arrived at an interesting conclusion - spy on foreigners as much as you want, no need for courts, but for Americans he wants to have a judge overseeing things. He doesn't seem to realize that this is precisely what present FISA is all about, what Bush totally ignored and what Feingold so justly wants to have him censured for.
There is a notion that censuring weakens the presidency and that this is not good for the country. This is unquestionably true, especially now when our international standing is in the dumps thanks to Bush administration. An international pariah with censured president is not a very nice prospect.
However this needs to balanced with the need to reign in a grossly overreaching executive, to restore a system of checks and balances. I'm leaning to the later as a better solution for the country in the long run.
Go listen to it yourself (CSPAN), well worth your time, imho.
Anonymous Liberal said...
ReplyDeleteBart, the FISA court is secret and the presiding judge already knew about the program. Indeed, when the presiding judge found out about the warrantless NSA surveillance, she told the administration not to use any evidence from warrantless surveillance to apply for FISA warrants, reasoning that such evidence was "tainted" by the illegality of the program.
The WH was not seeking FISA warrants for intelligence gathering conducted by the NSA. However, once this program had identified a target, the Justice Department went to FISA for search warrants to gather evidence for criminal evidence against the target.
The chief judge had doubts as to whether evidence received during warrantless intelligence gathering could be used as the basis for granting a warrant to gather criminal evidence.
The constitutional issue of whether Congress had the power to limit or eliminate the President's Article II authority to conduct warrantless intelligence gathering was never before the FISA court.
As I pointed out before, it appears that Justice wanted to avoid the entire evidentiary fight to preserve the operational security of the NSA Program.
In their answers to the Dem Senators' questions, Justice maintained that they had the right to admit evidence into criminal trials which was gathered by warrantless intelligence gathering. This is based on the holding in the Truong case. So, Justice does not believe that they could not have won this legal battle over warrants with the FISA court. Rather, they had to have another reason for not litigating this evidentiary issue.
Such an issue could have been litigated in the FISA court, but it would not have stopped there. The defense attorneys for the targets in public criminal court (or the Court in camera) would have examined the FISA warrants to determine if they had probable cause to perform the searches against their clients. That brings the issue into the public court system.
Better to have a chain of evidence completely unrelated to the NSA Program so the secrecy of the program would not be compromised by the criminal justice process.
Furthermore, the fact that Justice was willing to forego evidence to try the targets criminally in order to preserve the secrecy of the program is yet more evidence of how critical the intelligence community considered this program.
jao:
ReplyDeleteMister President, tell it to the judge.
Exactly which judges do you have left?
The courts of appeal, the FISA court of review and now the FISA judges brought before the Senate all recognized that President had this power and the FISA court of review and judges before the Senate all stated in dicta or testimony that FISA or a congressional statute would not infringe upon the President's "necessary and proper" or plenary Article II power.
Maybe you ought to listen to the judges because your position has no legal precedent supporting it.
Perhaps this is little off-topic, but it's a question that comes up repeatedly for me as I read the comments of Bush apologists on various blogs:
ReplyDeleteWhy are questions of "is this proper?" "is this the kind of country you want to live in?" "how do you feel about the prospect of actors with whom you disagree using the powers you now so eagerly defend at some point in the future?"
Instead, we typically get (and this blog and this thread are examples) one of two standard argumentative positions: "here are the arcane, technical reasons why this administration is going to be able to slip out of the noose in this case" (bart) or "we won, we'll always win, Democrats (the only other possible viewpoint that exists) are so stupid they can't get out of their own way."(notherbob2)
Do you people really feel great about defending this avalanche of crap on no principle whatseover than "we can get away with it, so get over it"?
I have been hesitant to express my views on this blog because,quite frankly, I have been intimitated by the fabulous expertise,insight,and intelligence on the views of the various bloggers.
ReplyDeleteI cannot thank Glen Greenwild and all of you bloggers who have given me important information ,and again ,the all important insight into the NSA spying story,and the American People"s reaction to it(are you a psychologist robert1014?).
As far as my views on the lack of support of censure by the democrates in the senate...
They are ,by nature, a "deliberative body"...this probably can be explained why most of them have not come out as quickly as we would like them to,and again,they were probably somewhat suprised by Feingold.I think, right now,they are waiting for the "process" to play out;the hearing was just held-it has to come out of commitee-then to the floor of the senate.And as much as we can justly critisize Senator Spector for any number of reasons(like refusing to put Gonzalez under oath),he has allowed Senator Feingold to pursue this matter.
In the end,no the censure resolution will not pass,BUT... my sense impressions tell me that we will be ,overall suprised by how many of the Democrats in the Senate will support this resolution when it comes to floor,most likely in May.We will probably have further suprises within the democrats as to who supports it and who doesn't;chief among those to watch is of course Hillary.Remember, she was involved in the Watergate hearings,as a Senate aide, I believe.She absolutely knows what is going on in this current matter; needless to say,I think that this is going to be a defining moment in her political career,as it will be for so many of the democrats...I can tell you right now, that if she,along with Joe Biden,does not vote for censure,and if either becomes the democratic nominee for president in 2008..I WILL STAY HOME AND NOT VOTE,that is how "principled" I will be on this matter.After the vote,I will email those senators that, I will not support them(with my money )because they did not support censure.Instead I will support the ACLU and Senator Feingold's Progressive Patriots Fund.
So far my unoffical tally on voting for censure based on inferences of what they have said publically..
Feingold
Boxer
Harkin
Lahey(listen to what he said at the hearing and how angry he was)
Durbin(who on Faux News w Chris Wallace said that there was a coverup on the part of the Intell Committee)
Kohl(who actually was at the hearing on friday,but did not speak)
Biden(who at one hearing stated how can you trust this president)
Lautenberg and Menendez(who are my senators and whose offices I called,and staffers said are"seriously considering it").
Again,the acid test will come when it comes to the floor of the senate,take it from there...
Also,as a caveat,as has been previously stated, the complicity of the media--- the muted,and sometimes non reporting of the issue.Hopefully more people will be watching Keith Olbermann,as I think his viewership has gone up.
Along this line,I am truly suprised that Faux News is actually going to have Senator Feingold on Chris Wallace this Sunday April 2.Hopefully,he can,and probably will,make an impression on all the kool aid drinkers.
Bart said: As I pointed out before, it appears that Justice wanted to avoid the entire evidentiary fight to preserve the operational security of the NSA Program.
ReplyDeleteThis is purely precatory language. Bart and other Bush apologists simply wish or hope the program is a) important, b) productive against the "terrarists", and c) of some use for national security purposes. Shorter version of this theory: Trust Bush to do the right thing. Any takers?
It's really very simple: If the President had a viable case, his lawyers would not be afraid to say so in real court before a real judge.
ReplyDeleteYes, and BushCo is playing beat the clock. That's their only alternative and it may succeed as to Bush (out in 08) as the legal process is cumbersome and lengthly. This same strategy has been employed in Iraq and Gitmo. The question is: Will it further long-term goals for the Republican Party; i.e. toward a permanent majority? Bush is the Republicans own worst nightmare.
The "protect the secrecy" of the program at all costs is a convenient fiction. An adversary already knows everything they need to know: your electronic communications are likely to be monitored with the assistance of the telecom companies and the owners of the big switches for electronic traffic.
ReplyDeleteSecrecy here is important because of the legal issues and the embarrassment factor. Most of these considerations are now moot.
I am not advocating disclosing the program in detail. I am suggesting that this administration uses the security card as a get-out-of-trouble card.
RothBard said...
ReplyDeleteI not only defend the legal basis of the NSA Program, I think the program itself is critical for war fighting and have posted about a dozen times on this blog that I would support it even if the well known FBI file abuser Hillary Clinton was President.
I trust the Elephants on the intelligence committees to keep a leash on Hillary. What is funny is that I trust the Donkeys on these committees to do the same with Bush far more than Dems themselves do.
From Bart at 5:29PM:
ReplyDelete"Exactly which judges do you have left?"
How about the Supreme Court of the United States?
The irrelevant dicta and Senate testimony (neither conclusive on the issue) aside, as you seem fixiated upon the notion that FISA is an infringement upon Article II, making it a Constitutional question, wouldn't that be the appropriate forum to settle the issue?
Could it be the Administration is aware of how tenuous its legal justifications are and are desperate now to keep this *out* of the Courts?
Again, I don't expect any serious response to either of these points; there simply isn't one to be had.
Glenn Greenwald said...
ReplyDeleteNobody who has affected any change has done so with an unwillingness to sacrifice a little purity, to get a little dirty. If one cares about consequences, a refusal to do so is not a virtue.
It all depends on the definitions of purity and dirty then I suppose. At what point is purity defined as dirty and dirty defined as filthy? In my opinion we are no longer talking about getting a little dirty here. We are talking about, as you have alluded to many times, the potential destruction of our very system of government.
With regard to the President's lawlessness and the protection of the Constitution and our system of government - if Feingold's censure resolution is a loser, either politically or "realistically", we are then left with what? Jao keeps hammering this point. He finds it acceptable or "realistic" that we choose between two atrocious bills, neither of which is truly acceptable for obvious reasons. So we should then say "ok we realistically have no chance here (whether it be censure or impeachment or whatever) so we better keep fighting by sitting on our hands and accepting the destruction of what we fundamentally believe in?" Perhaps it is not that severe yet but if we give into this now in the hopes that our options are better later I think we are kidding ourselves. This is it and there may be no later.
If "playing the game" after a certain point will obviously only lead to unacceptable consequences or resulting conditions then what is the point of engaging in that game and furthering or quickening the destruction? At what point does one draw a line in the sand and say no more - never? Making deals with the devil because one perceives it to be the only option or the "lesser of two evils" does no one any good in the long run. Are there times for compromise? Of course but if that compromise entails a choice between death by firing squad or death from starvation the end result is the same and obviously unacceptable.
Hell, history shows us that there have been plenty of historical figures (Gandhi, MLK JR, some of our Founding Fathers, etc.) who refused to play the game when the results of doing so would lead to unacceptable consequences.
I think it is obvious that you disagree but, with regard to our two party system and their underlying principles, It is my belief that we have left "dirty" behind and are now being asked to choose between filthy and down right skanky.
The entrenched Democratic establishments showed their cards yesterday. They will never put up a fight if they perceive even the faintest whiff of potentially losing. It has become their calling card. It is cowardly. They are running from every fight regardless of their principles or convictions. When you do this enough you wake up one day to the realization that you have no principles. They keep telling us they are waiting until the "time is right", until they have a guaranteed winner. I have news for them and all that believe this farce - if a principled stand is not taken at some point there never will be a "right time." At some point the principled stand dictates the primacy of the issue not the other way around.
So have I quit? Have I given up? Am I looking for a "device for relieving myself of responsibility for actually changing or accomplishing anything"? No but I am not going to play the current game either as I see none of the options I am left with as viable. I am no one special. I am by no means an ideological purest but everyone has to draw a line in the sand at some point. I have made my choice. I can live with it and my conscience.
I appreciate your response bart...and our obvious differences of opinion regarding the war aside, I wonder on what basis you're willing to put so much trust in individuals to perform responsibly. I'm not willing to assign the subjective reading of and/or necessity for the Bill of Rights to any politician, much less Hillary Clinton. I think it's Constitutional suicide to completely rule out the existence and importance of self-interest in such an assignment.
ReplyDeleteIs it your opinion that the fears of the Founding Fathers and the evidence of history regarding the potential for misuse of power are overblown?
Or do you contend that war creates a situation where the need for curbing individual rights coincidentally and precisely tracks the trustworthiness of those in power?
If not, where is the line drawn for you between abrogation of rights and a need for security? And are you willing to let anyone who comes along determine where that line is drawn?
yankeependragon said...
ReplyDeleteFrom Bart at 5:29PM: "Exactly which judges do you have left?"
How about the Supreme Court of the United States?
A much more liberal Burger Court denied cert on all of the courts of appeals decisions to which I have cited.
Stevens was a member of the Court which denied cert. He was considered a "conservative" on that court so I would not depend on him as a vote.
Roberts and Alito defer to the executive branch. Indeed, Roberts wrote the courts of appeal opinion against Hamdan.
Scalia is a textualist like me who will ask you to point out the provision of Article I gives Congress the power to limit the President's Article II powers. Scalia also has a kid serving in the Army who has served in Iraq and will be favorable to providing the President every war fighting tool he needs.
Both Scalia and Thomas have consistently written in several decisions that Congress has exceeded its constitutional authority. They will be very skeptical of the FISA power grab.
Kennedy will probably side with the other conservatives with this one since nearly everyone in Congress is supporting the program. He will ask what the problem is.
The leftwingnuts on the Court - Ginsberg, Breyer and Souter will probably be the only dissenters.
However, all of this is speculation. Congress will ratify this program before the elections and the case will become moot.
RothBard said...
ReplyDeleteI appreciate your response bart...and our obvious differences of opinion regarding the war aside, I wonder on what basis you're willing to put so much trust in individuals to perform responsibly. I'm not willing to assign the subjective reading of and/or necessity for the Bill of Rights to any politician, much less Hillary Clinton. I think it's Constitutional suicide to completely rule out the existence and importance of self-interest in such an assignment.
I place my trust in partisan self interest. If the Dems in congressional oversight found anything close to a Watergate level criminality, do you really have any doubt that they would not be shouting from the rafters to regain power? I surely do not have any doubt in that regard.
The fact that Feingold has to rely on the felon Dean as his star witness in lieu of any evidence of actual abuse of power says all that needs to be said about how frivolous his censure resolution is.
Is it your opinion that the fears of the Founding Fathers and the evidence of history regarding the potential for misuse of power are overblown?
Not at all. That is why I support enhanced congressional oversight. The founders expected Congress to conduct oversight, not the courts, which they mistakenly believed would be the weakest branch limited to adjudicating cases.
Or do you contend that war creates a situation where the need for curbing individual rights coincidentally and precisely tracks the trustworthiness of those in power?
No. If you have been reading my posts, I utterly reject the argument that constitutional rights or powers change during wartime. The President's Article II powers are the same in peace and in war.
bart said
ReplyDeleteI place my trust in partisan self interest.
Thanks again for your response bart.
I have no doubt whatsoever that the folks who wrote our various founding documents had no such trust and that you'll never be able to point to any documentation that proves otherwise.
That you can entrust such serious issues to the vagaries of an ever-changing political process is frankly appalling.
You may choose to think that this sort of "check and balance" serves you and your interests, but even if it actually does serve the interests of like-minded partisan sycophants, what of all of us who claim no such affiliation?
Further, to assert that "partisan self-interest" is all the oversight that's required suggests the 7th grade civics point of view that politicians always serve the "public interest." For a sentient American to actually believe that Republicans and Democrats have more enmity than they have a mutual desire to hang onto the power they have amassed at their constiutency's expense renders me speechless.
In spite of your ability to cite interesting legal minutiae, it's not possible for me to have a discussion with someone capable of such stunning cognitive dissonance.
Bart at 9:57PM read the tea-leaves and declared the Supreme Court would by 6 to 3 find for this program, presumably declaring it falling under Article II.
ReplyDeleteThis of course doesn't take into account exactly what manner of case would be brought to the Court, presumes 'Congress' continues to be in favor of it, presumes additional details are not forthcoming concerning the program or its targets, and that none of the Justices (I'm thinking specifically of Scalia and Roberts) aren't called to recuse themselves. As Bart pointed out, if this is brought up as an Article II issue and put into context in this phantom War on Terror, Roberts has already shown a bias or at least a predisposition with the Hamden case and Scalia would be hard pressed to show objectivity given his son's deployment overseas.
There's also Bart's less than respectful titling of the presumed dissenters as 'leftwingnuts', but that's on his professional and personal conscience (provided he has one).
In any event, my original point was simply to answer an earlier question Bart perhaps rhetorically posed. We'll have to see how things develop.
Incidentally Bart, you never did answer my question from yesterday, to whit if we are in a 'total war' (your term) *why* aren't isn't this Administration fighting it as such?
ReplyDeleteFrom Bart at 10:04PM:
ReplyDelete"The fact that Feingold has to rely on the felon Dean as his star witness in lieu of any evidence of actual abuse of power says all that needs to be said about how frivolous his censure resolution is."
A few points to consider.
First, its Senator Feingold.
Second, the censure is for the President breaking the law by circumventing FISA. Whatever abuses have taken place will only surface in time and through either investigation or discovery.
Third, you're right, it is frivolous in that it amounts to nothing more than the President being verbally scolded by a co-equal branch of government.
Bart continues:
"That is why I support enhanced congressional oversight."
Your previous comments - specifically your seeming satisfaction a small, select group of members from both Houses have recieved off-the-record, informal briefings on the program under discussion rather than formal ones given under oath - would seemed to contradict this sentiment. Keep in mind the Democrats are not in any leadership position at the moment in either House, and the current Republican leadership has proven both ethically and philosophically challenged as far as oversight goes.
In other words, pardon the rest of us for a bit of skeptism here.
I concur with bart, the chances that the present Supreme Court will be willing to squarely face Bush's administration claims of unlimited powers (either in war or peace) are low. The best that can be hoped for is some tangential rebuke but even that is highly doubtful. So it looks Cheney and Co will get their carte blanche after all. Even if Specter get his bill (which isn't that bad after all) adopted nothing will change the fundamental nature of the new balance of power.
ReplyDeleteI only hope people would realize what that means: massive mechanized surveillance programs, agents rummaging through your financial, medical data, purchasing, travel, reading, etc habits, secret black bag jobs, black listing of citizens both formal and informal (jobs, travel, etc), clandestine physical/psychological/social neutralization of some people in the USA (programs similar to what FBI tried to do to MLK have been alleged to exists), even eliminations wouldn't be unthinkable.
All approved and executed by "professional" people in the FBI, CIA, DOD, DHS, DOJ.
All totally secret with absolutely no recourse for targeted citizens or meaningful judicial or congressional overview.
Welcome to new age.
More info on our good friend, Harold Arlan DePalma, Esq., aka Bart
ReplyDeleteApril Fools!
Yeah, but assuming that Specter passes, as it hopefully will, mootness may render all this academic. Same with that bastard DeWine.
ReplyDeletePlus getting there won't that easy, they refused to hear Padilla after all, letting Luttig to keep him imprisoned, didn't they?
ReplyDeleteThis with Padilla being a much stronger case - American citizen imprisoned for 3 years on Bush's orders on American soil in a military brig nonetheless - than anything involving NSA that surfaced so far.
yankeependragon said...
ReplyDeleteBart at 9:57PM read the tea-leaves and declared the Supreme Court would by 6 to 3 find for this program, presumably declaring it falling under Article II.
There's also Bart's less than respectful titling of the presumed dissenters as 'leftwingnuts', but that's on his professional and personal conscience (provided he has one).
No, this has nothing to do with how these justices might rule on this particular issue. Indeed, some of them may vote for the Article II power given the long prior precedent.
My contempt for these Justices stems from how they cavalierly rewrite the Constitution to suite their personal whims. I found Breyers new book of how he applies the law to be appalling.
Incidentally Bart, you never did answer my question from yesterday, to whit if we are in a 'total war' (your term) *why* aren't isn't this Administration fighting it as such?
How is he not? Our troops are deployed around the world in combat. Assuming that you are a Dem, your party's official position is that the military is overextended.
JaO said...
ReplyDeleteBoth Roberts and Alito firmly embrace Justice Jackson's Youngstown framework, which is a roadmap to holding against Bush's claim. You pretend that Youngstown framework doesn't let Congress or the courts impinge on the Commander-in-chief powers. Here, once again, is what Roberts had to say at his confirmation hearing:
Senator LEAHY: Do you agree that Congress can make rules that may impinge upon the President's command functions?
Judge ROBERTS. Certainly, Senator. The point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The President is the Commander in Chief, and that meant something to the Founders. On the other hand, as you just quoted, Congress has the authority to issue regulations governing the Armed Forces, another express provision in the Constitution. Those two can conflict if by making regulations for the Armed Forces, Congress does something that interferes with, in the President's view, his command authority, and in some cases those disputes will be resolved in Court, as they were in the Youngstown case.
I don't disagree with a single thing Chief Justice Roberts said in that answer. He correctly identified a provision of Article I which gave Congress power over a particular area of the military. My challenge to you folks relying upon the Youngstown test is to find a provision of Article I which grants Congress the power to direct or conduct intelligence gathering. If you do, then CJ Roberts might give you his vote.
Another hint: Scalia, Thomas, Roberts and Alito would hand you your "textualist" head if you tried to tell them -- as you claimed earlier in this thread -- that the Necessary and Proper Clause somehow grants powers to the President. Of course, the N&P Clause applies to Congress.
I believe it was Judge Kornblum who used that term before the Senate. I posted that I believe he was using that term to mean plenary powers because, as you correctly point out, the N&P Clause concerns congressional legislation.
Overall, if Bush's Article II claim were squarely presented to SCOTUS, he likely would lose 8-1 or 9-0.
If we get to that point, I will wager a C-Note that you are wrong. Easy money.
I don't want to quibble too much, but they already had a chance to hear that case and refused to do so; specifically on June 13, 2005 after brief consideration they sent it back to lesser courts. Here's his case.
ReplyDeleteDavid:
ReplyDeleteBart said: My challenge to you folks relying upon the Youngstown test is to find a provision of Article I which grants Congress the power to direct or conduct intelligence gathering . . .
Why, Bart, you "forgot" the rest of the sentence, the most important part of the question.
. . . by warantless electronic eavesdropping on American citiizens on American soil in flat violation of an express Congressional criminal prohibition.
I didn't forget it. Rather, that statement is irrelevant.
1) There is no evidence whatsoever for the claim that the NSA is targeting US citizens who are not also al Qeada agents or supporters.
2) You can keep raising FISA all the live long day but until you can show me a a provision of Article I which grants Congress the power to direct or conduct intelligence gathering, the statute is unconstitutional and illegal when applied to the President's Article II power to gather intelligence. The only governmental body which acted illegally in this matter is the 1978 congress.
JaO said...
ReplyDeletebart; I don't disagree with a single thing Chief Justice Roberts said in that answer. He correctly identified a provision of Article I which gave Congress power over a particular area of the military.
No, Roberts identified a general provision that gives Congress the power to regulate the entire military, in fact the entire government.
Roberts said no such thing in his statement.
Furthermore, I challenge you to find me a single court decision which holds that the Article I provision to regulate the conduct of the military reaches the conduct of intelligence gathering or any aspect of military command outside of the UCMJ. I have already run computer search and found none. Good luck.
For extra credit, look at the FISA legislative history and find me a single member of Congress who claims that FISA was enacted under this provision.
Of course, you can name no specific provision in the Constitution that says the executive can collect foreign intelligence within the United States in the first place.
Deciding who to direct intelligence gathering against is a military command decision given to the CiC. There is no general military command provision in Article I.
For this reason, several courts of appeal have recognized this power as originating in Article II and not a single case has cited any similar power under Article I.
Roberts definitely suggested was that the authoritative place to resolve such separation-of-powers issues is in the courts. And no court, at any level, has ruled on whether FISA's specific restrictions on the executive are constitutional.
That is true and it is also irrelevant.
I pity the attorney who brings such a case as he or she will have absolutely no text and no precedent to rely upon apart from the easily distinguished Youngstown case.
Meanwhile, all the FISA judges to comment on the matter either admit specifically that FISA or generally that a congressional statute cannot abridge the President's Article II power to gather intelligence.
You keep parroting "tell it to the judge," but every judge which has commented on the matter supports the President's interpretation.
bart:
ReplyDeleteI'm not a lawyer, so bear with me. And I apologize if my questions have already been asked and answered.
Is it your position that the Youngstown case cannot apply to the wiretapping issue, because in that decision, the Court decided that the president overstepped his authority as CiC not simply because he violated a Congressional statute, but because he had no recognizable authority to seize property in the first place, despite his role as CiC.
In other words, Youngstown never directly addressed the issue of whether the president's recognized responsibilities as CiC can be regulated by Congress. Am I right?
Hypothetically, if we were not at war, would you consider the NSA wiretapping program illegal?
I figured I'd leave Bart's various formulations concerning the NSA scandal's legal dimensions to other better suited to argue them. Instead, on a related note, Bart stated at 3:24PM concerning my challenge to his 'total war' assertion:
ReplyDelete"How is he not? Our troops are deployed around the world in combat."
The definition of "Total War" per the Wikipedia website defines this as:
"Total war is a 20th century term to describe a war in which countries or nations use all of their resources to destroy another organized country's or nation's ability to engage in war."
http://en.wikipedia.org/wiki/Total_War
So, based on this definition, are we as a country actually engaged in a 'total war' with...well, whoever?
Our domestic economy is still geared towards peacetime, taxes are being cut like mad, and a mere 130,000 or so regular line troops have been deployed to Iraq and another 20,000 remain in Afghanistan (together constituting only about 1/3 of the available manpower of all four services).
Its worth further noting that neither major deployment proving particularly effective in stabilizing their theaters of operation; Afghanistan is collapsing just as surely as Iraq. Read the following if you want a feel for what's happening there:
http://www.thebulletin.org/article.php?art_ofn=ma06chayes
That all said, our current operations in either T-o-O fall far short of actual war-fighting, or country-building for that matter. If we're waging 'total war' against presumably Islam (how else do you battle 'Islamofascism' but by engaging the source material itself?), why aren't we utilizing the necessary tactics to ensure it *never* again threatens us as Bart's chain of reasoning demands?
*Carpetbombing Baghdad, Mecca, Tehran and all points between.
*Outlawing the Qur'an and forced conversion of all Muslims (Sunni, Shi'a and Krud) to something more 'tractable'.
*Tearing all Holy Sites down to the bedrock.
*The permanent removal of all Imans, Ayatolas, and teachers from the scene.
Need I go on?
Bart, you claim to be a veteran who has seen actual combat. Surely you of all people can appreciate the idiocy of such a position and this phantom 'war' President Bush has declared?
Or do you seriously believe you can actually defeat an ideology by sheer (and fundamentally mis-applied) military force? I'd put that on the level of trying to kill an idea by shooting it with a Glock.
I suspect I'll be waiting to hear an answer to this for a long, long time.
adan said...
ReplyDeleteIs it your position that the Youngstown case cannot apply to the wiretapping issue, because in that decision, the Court decided that the president overstepped his authority as CiC not simply because he violated a Congressional statute, but because he had no recognizable authority to seize property in the first place, despite his role as CiC.
Not quite. While I believe that a majority in the Youngstown case did find that Truman overstepped his authority as CiC in attempting to seize the steel mills, the part of that opinion on which Glenn and most of the folks here are relying is the balancing test offered by Justice Jackson in his concurrence. That test deals with situations where both Congress and the President both have constitutional power over a subject matter area.
The folks here have misinterpreted the Jackson concurrence to mean that Congress may enact a statute which limits any Article II power of the President even if Article I does not give Congress any concurrent power over that subject matter area.
Thus, I have challenged Glenn & Co. to identify a provision of Article I which gives Congress the power to direct and conduct intelligence gathering like the Presidentt has under Article II as CiC. Absent such an Article I power, the Jackson balancing test simply does not come into play and the President's Article II power is plenary and is not shared with Congress.
They have been unable to do so.
Hypothetically, if we were not at war, would you consider the NSA wiretapping program illegal?
No, the President does not have any special wartime powers. His powers exist during peace and war.
The job of CiC does not disappear if we are not at war any more than the jobs of the rest of the military. Part of that job is to keep track of possible foreign enemies through intelligence gathering.
yankeependragon said...
ReplyDeleteBart: "How is he not [a total war]? Our troops are deployed around the world in combat."
The definition of "Total War" per the Wikipedia website defines this as:
"Total war is a 20th century term to describe a war in which countries or nations use all of their resources to destroy another organized country's or nation's ability to engage in war."
http://en.wikipedia.org/wiki/Total_War
Our domestic economy is still geared towards peacetime, taxes are being cut like mad, and a mere 130,000 or so regular line troops have been deployed to Iraq and another 20,000 remain in Afghanistan (together constituting only about 1/3 of the available manpower of all four services).
Our troops are rotating in and out of combat regularly, just like they did in WWII. You never deploy your entire force unless there is no choice because just being on the front even without major combat attrits units from a variety of causes.
Furthermore, we have troops deployed in dozens of countries around the world, not just in Iraq and Afghanistan.
As for our economy, no nation can spend all of its GDP on warfare. Therefore, some lesser amount is spent. The fact that we are fantastically wealthy enables us to spend about 4-5% of our GDP and still
spend more on the military that the rest of the world combined and far more than our Islamic fascist foes.
That all said, our current operations in either T-o-O fall far short of actual war-fighting, or country-building for that matter.
Tell it to the over 50,000 enemy dead since we entered the ME after 9/11. al Qaeda is decimated and hasn't been able to muster an international attack from the ME for years. (London and Madrid were local homegrown cells).
If we're waging 'total war' against presumably Islam (how else do you battle 'Islamofascism' but by engaging the source material itself?), why aren't we utilizing the necessary tactics to ensure it *never* again threatens us as Bart's chain of reasoning demands?
*Carpetbombing Baghdad, Mecca, Tehran and all points between.
*Outlawing the Qur'an and forced conversion of all Muslims (Sunni, Shi'a and Krud) to something more 'tractable'.
*Tearing all Holy Sites down to the bedrock.
*The permanent removal of all Imans, Ayatolas, and teachers from the scene.
Need I go on?
No, you have made yourself look silly enough by claiming that we have to murder the hundreds of millions of adherents of the second largest religion in the world because we are at war with a group of fascists within that religion.
Bart, you claim to be a veteran who has seen actual combat. Surely you of all people can appreciate the idiocy of such a position and this phantom 'war' President Bush has declared?
Phantom war! My friend, our troops are fighting battles every week in Iraq and Afghanistan, not just sitting on their hands. You really need to read the dozens of military blogs which report the nitty gritty battles of the war which the Dem press over here willfully ignores. You might want to start with Michael Yon's blog and go from there.
Or do you seriously believe you can actually defeat an ideology by sheer (and fundamentally mis-applied) military force?
Absolutely not. The military can only keep the problem manageable and at bay.
Finally defeating the ideology will require regime change all over the ME to a more representative system. Fascism thrives in economic depression and lack of freedom. It is time to drag the societies of the ME into the 19th Century.
The al Qaeda fascists recognize this. That is why they fought against the elections so bitterly even to the point of attacking their own Iraqi Sunni supporters.
JaO said...
ReplyDeletebart: I pity the attorney who brings such a case as he or she will have absolutely no text and no precedent to rely upon apart from the easily distinguished Youngstown case.
But of course, the attorney you mention would have the advantage of the plain text of the statute and Constitution, as well as an 8-1 precedent from Hamdi.
1) You cannot use the plain text of FISA to prove that Congress had the authority to limit the President's Article II powers. You need an Article I power for that.
2) The 8-1 precedent in Hamdi ruling FOR the government is close to what you would get for the government if the NSA program was ruled upon. The only "defeats" for the government in the Hamdi decision was that the Court retained jurisdiction to review these cases and said that the military had to provide a bare bones hearing on the issue of whether Hamdi was an enemy combatant. Hamdi lost on every other request.
You folks read far too much into the comment in Hamdi that the President's powers are not without limit. That is simply a truism. However, in the arena of wartime detentions, the Court gave the President nearly total authority.
It is very unlikely that they will do less with the NSA Program, especially after the AUMF.
bart said;
ReplyDeleteFinally defeating the ideology will require regime change all over the ME to a more representative system. Fascism thrives in economic depression and lack of freedom.
Utter nonsense. Germany, the Netherlands, Austria, Bulgaria, Portugal, South Africa, and Brazil all had representative systems of government when their respective fascists all gained or stole power pre WWII. Lets not forget that Chile was a representative democracy pre-Pinochet, and that particular fascist was installed by some of the very mentors of your present day administration "heroes".
Lack of freedom is not a harbinger nor host of fascism, and neither is a representative government an innoculation from it. I would argue much less so if such a government is imposed.
Your Bushista talking points are charitably-speaking historically inaccurate. If this administration were serious about defeating these islamo-fascists, it wouldn't be going all out wreaking even worse economic depression and relative political instability in the ME, both of which ultimately IS a harbinger and host for fascism.
I mean, the election of Hamas SHOULD be a fucking wake-up call for you and this administration, but frankly I would be shocked if we were ever to be so lucky. Get a clue already.
I should also point out that, technically, Al Qaeda was originally inspired a shallow fundamentalist off-shoot of mainline Islam call Whabbism, making its orientation more theocratic than political and its focus directed primarily at the autocratic regimes in Saudi Arabia, Iraq, and much of Centaral Asia. Think Christian Reconstructionists.
ReplyDeleteThese days, thanks to the botched job the Administration has made of it all, Al Qaeda has become a far looser, more multi-polar network of fellow travellers rather than particular adherents.
Consequently calling this network 'Islamofascists' is about as accurate as saying all Christians are Denominationists.
Well, at least Bart, to his credit, *tried* to answer the 'total war' question seriously. Sadly, it looks like he can't quite wrap his head around what a 'total war' actually entails.
ReplyDeleteLook, no-one denies we have troops in harm's way across the world. All this means is *exactly* that a no more: we have troops in harm's way. Yes, they are having to engage in combat, but that hardly constitutes an actual 'war' against a defined enemy. The fact Bart and his fellow contrarians keep referring to 'Islamofascists' betrays a fundamental misunderstanding of both the enemy and its goals.
When I refer to this as a 'phantom war' I mean we are essentially engaging physically insubstantial ideologies and rhetorical frameworks, things that can't be shot, stabbed, or otherwise defeated by physical force. Yes, those ideologies are arrayed against the US troops deployed into those areas, but consider the flip side: a foreign force has invaded your homeland and is in service of a government and ideology you find neither desirable nor necessarily moral. What would you do?
And while Bart is correct that Al Qaeda isn't capable presently of launching an international attack, it should be pointed out it never actually has. Yes, bin Laden and company did dream up a plan that ultimately resulted in 9/11; that plan however was nearly 10 years in planning and preparation, undertaken by immigrants and travellers who entered the country legally. Doubtless there are other plans underway that may or may not reach fruition in years to come.
Its been continually pointed out that Al Qaeda is not and never has been a formal organization or country or the like. It is a network of ideologues and fellow travellers that literally spans the globe; as such tracking and dismantling it is frankly close to impossible.
The money quote:
"Finally defeating the ideology will require regime change all over the ME to a more representative system. Fascism thrives in economic depression and lack of freedom. It is time to drag the societies of the ME into the 19th Century."
And how, precisely, do you suppose this 'regime change' takes place? Over a cup of tea and some crumpets in the Men's Club? More to the point, exactly how has it become the (dare I say it) manifest destiny of the United States to "drag the societies of the ME into the 19th Century"?
So which is it, Bart? Are we at war with Islam or trying to force it to modernize?
JAO:
ReplyDelete[the troll and supposed lawyer HWSNBN said]: The FISA court could not rule on the issue of whether the warrantless NSA program is legal. Thsi court is only authorized to issue warrants. The only request the President can make of the FISA court is to issue a warrant. If they did so, then the intelligence gathering would then no longer be warrantless and the issue is moot. FISA and every other federal court are not authorized to give advisory opinions to the executive on whether their warrantless intelligence gathering is legal.
Of course, you mistate the situation, as has been explained before. No advisory opinion is involved.
All that is required is that DOJ apply for a warrant, justifying it by information derived from the prior warrantless surveillance. In considering that warrant application, the FISA court could rule on the lawfulness of the prior surveillance.
Of course our resident troll misstates the situation; he's been doing such for months now. In fact, one of the premier cases he likes to cite is the In Re Sealed Cases one. Of course, that case had nothing to do with whether a warrant should be issued, but had a to to do with how surveillances should be conducted (all you have to do is read that opinion, and know that HWSNBN is full'o'it here). Which anyone but a moron could figure out. So that leaves us with the choice: HWSNBN is either a moron or dishonest. I vote for both.
Seeing as that's the case (HWSNBN continually throwing out "red herrings" in an attempt to bamboozle people and obfuscate the issues), probably best to ignore his c*** as the disinformation campaign it is.
Cheers,
From the New York Times reports:
ReplyDelete"Several Republicans argued that whatever the legal status of the spying program, it did not deserve punishment because, unlike Nixon, Mr. Bush had acted in good faith."
This is more than a little frightening, because for years the conservative argument has been that good intentions are not justification.
One more piece of evidence that these guys aren't conservatives