I would really like to respond to the hysterical celebrations among Bush followers over the fact that a group of Muslim extremists were apprehended in Canada in the midst of planning terrorist attacks, but it's literally impossible to understand the point they think they're making. From what I can tell, their "reasoning" goes something like this: law enforcement was able to find out about this plot by engaging in surveillance of telephone calls and internet communications, and this proves that the President is right to engage in illegal (rather than legal) eavesdropping on Americans.
Is a more irrational and incoherent argument even possible? As Barbara points out in the post below (but shouldn't have to), nobody opposes surveillance of telephone calls or Internet communications. Nobody. Proving that such surveillance can be effective in stopping terrorist attacks is merely to state the obvious, not to prove any point in controversy. The issue isn't whether the Government should eavesdrop, but whether it should eavesdrop in compliance with the law (i.e., with warrants) or in violation of the law (without warrants). Aren't we all able to ingest that extremely simple point by now?
The laws we have in place make it easy to engage in surveillance of all types against terrorist suspects like this. Few things would be easier than eavesdropping on these conversations and communications by complying with the law -- i.e., by going to a FISA court and obtaining a warrant. And nobody opposes that. The "argument" being made assumes that the Government can't engage in surveillance on terrorist communications unless it breaks the law. What person with a working brain is incapable of understanding how self-evidently false that premise is?
One last thing: demanding that the Bush administration obtain warrants before eavesdropping on Americans isn't about "protecting civil liberties." It's about sharing the desire of the Founders that we not live under the rule of a King who has the power to break the law. Eavesdropping without warrants isn't wrong because it "violates civil liberties." It's wrong because since 1978, it's illegal to do so; it's a criminal offense. And the reason Americans required warrants isn't to "protect civil liberties." It's because administrations of both political parties abused the eavesdropping power for four decades when they could eavesdrop in secret, and so Americans decided -- by enacting what we call "a law" -- that we only trust the Government to eavesdrop on us with judicial oversight.
As empty as it is, what these Bush followers are really arguing is that the existence of terrorists proves that the Government should have the right to break the law in order to stop them. Who could even respond to that sort of dribble? It's exactly the same as this argument:
Hey, guess what? I just saw on my TV that they caught the guy who has been murdering people by searching his house and finding evidence connecting him to the crime! Where are all of those people who keep droning on about how the police shouldn't be able to enter our homes without warrants because of our "civil liberties"? Why are they so quiet, hmmmmm? Doesn't this prove once and for all that all of that warrant stuff doesn't matter when lives are at stake. I guess searches of homes is an effective crime-fighting tool after all!
Only Friends of Criminals would try to stop the police from searching people's houses without warrants. There are criminals out there who want to kill us!!!!!! Who could care about all that "warrant" and "civil liberty" crap, when lives are at stake? Those pro-warrant people sure are quiet today!!!!
It's genuinely amazing that someone could make that kind of an "argument" without being horribly embarrassed, let alone make it with some sort of euphoria, apparently believing they are making some sort of really potent, difficult-to-answer point.
Didn't we all learn this point early on in school: there are criminals in the world, and allowing the police to break down our doors without warrants would help criminals be caught. Despite that fact, we don't allow the police to break down our doors without warrants, because the police can catch criminals by searching homes only when they have warrants, a process enshrined in the Constitution in order to avoid the inevitable abuse that comes from allowing the Government to search our homes without any oversight. Thus, people (such as the Founders) who favor the warrant requirement before the police can search our homes aren't pro-criminal. They know that criminals can be caught while preventing government abuse and lawlessness. Why is it so hard -- for some people -- to apply that same, quite basic reasoning to eavesdropping and all other forms of surveillance?
UPDATE: FDL is hosting a book club discussion this afternoon, at 5:00 EST, of How Would a Patriot Act? I will be there to participate and encourage anyone who has read to book to do so, too. Also, the first event on my book tour is this Tuesday, June 6, at the University of Florida at 4:00 p.m. EST. It's a public event and will be held at the Civil Media Center. Information is here. The San Francisco events will be from June 7-June 9 and I will post the specifics a little later today.
Somebody once left a comment on my blog that said, since the 4th Amendment protects citizens against illegal search and seizure, why do you liberals make a big deal about warrants?
ReplyDeleteYou can't make this stuff up.
what these Bush followers are really arguing is that evidence of the existence of criminals proves that the Government should have the right to break the law in order to catch them.
ReplyDelete...
It's genuinely amazing that someone could make that kind of an "argument" without being horribly embarrassed, let alone make with some sort of euporia, thinking they are making some really potent, difficult-to-answer point.
Oh, plenty of people feel that way without being even remotely embarrassed. While I think many Americans retain a vague sense of the notion that law enforcement must adhere to certain restrictions to preserve liberties-- probably thanks to television shows & movies more than anything-- that sense is still limited by assumptions that those protections are only for the innocent and that they know perfectly well who the good guys & bad guys are, thankyouverymuch. It all depends on the casting; if the accused fits the role of the bad guy, law enforcement are therefore the good guys and shouldn't be hobbled by consideration for what is, after all, human scum. If the accused is sympathetic (white, middle-class, prevented by law from doing something noble, etc.), then the police are the bad guys and the accused deserves the benefit of the doubt and all the rights accorded to them by law & policy. Unfortunately, the former scenario is more common, and Americans just aren't attached to principles that are emotionally unappealing.
This is the same kind of reasoning that justifies premptive war. If I flew accoss the country to shoot an old acquaintance outside his building because I thought he might be making bombs in his basement and he might use them against me (over some old grudge), they'd lock me away.
ReplyDeleteFor the crowd Glenn's talking about, that's sound reasoning and justifiable homicide.
There seems to be a real disconnect with those on right who are hailing the Canadian arrests (I'm Canuckian) as some sort of justification / exoneration for their extremist views.
ReplyDeleteThe disconnect begins in the courts. In none of the Canadian arrests was any individual, Canadian citizen or not, declared an unlawful combatant and incarcerated without representation and due process. I look forward to the Crown presenting the supporting evidence (and its lawful warrants permitting the surveillance) in an open court.
The argument Glenn makes is correct - These arrests support the position opposite what wingnutia claims. It really does shock that from their perspective, their warped 'window' through which they view the world, these arrests support their views.
It's clear that the right wingers don't see the big picture. The Canadian terrorist suspects will have their day in court with their Canadian Constitutional rights (since 1982!), their lawyers, and in front of a judge.
Days in court are events that, as Glenn has often pointed out, the Bush administration avoids at all costs.
The point, as always, is not to make a cogent argument, but to appeal to emotion and make sure the preponderance of voices is framing the issue as "should the president be able to protect us" rather than "should the president be beyond the law". That's why congressional Republicans do the same thing. If all the 'respectable' people are asking the question the 'right' way which will leads to the 'right' answer and only the crazy moonbats are asking the question the 'wrong' way which leads to the 'wrong' answer, which one do you think will be echoed by the afraid to be called liberal media and enshrined as the conventional wisdom?
ReplyDeleteGlenn:
ReplyDelete[faux argumnet]: "Only Friends of Criminals would try to stop the police from searching people's houses without warrants. There are criminals out there who want to kill us!!!!!! Who could care about all that "warrant" and "civil liberty" crap, when lives are at stake? Those pro-warrant people sure are quiet today!!!!"
It's genuinely amazing that someone could make that kind of an "argument" without being horribly embarrassed,...
Oh, but they do, Glenn. It creeps in under the name of "exigent circumstances", "safety stops" (Terry patdowns where cops can recognise, while patting down for a gun, an envelope of crack cocaine "by feel"), and under the "no one could have a reasonable expectation of privacy" rubric (which has made the appearance in the argumnets of various defenders of Dubya's snooping here).
They make excuses to ignore the law, and then claim all they're doing is trying to make crime-fighting safer and more efficient. As one might expect, fear -- fear of terrorism, fear of crime, fear that our loved ones might be at risk -- is a common thread through all of this (e.g., Mark Furhman's hopping the wall in Brentwood because he claimed he thought someone might be in danger there).
I've covered this before, maybe I should try and wrtie it up in longer form with examples and cites, and make a book outta it....
Cheers,
According to The Toronot Star:
ReplyDeleteThe chain of events began two years ago, sparked by local teenagers roving through Internet sites, reading and espousing anti-Western sentiments and vowing to attack at home, in the name of oppressed Muslims here and abroad.
Their words were sometimes encrypted, the Internet sites where they communicated allegedly restricted by passwords, but Canadian spies back in 2004 were reading them. And as the youths' words turned into actions, they began watching them. ... The investigation began back in 2004, when CSIS was monitoring Internet sites
Will someone please, please tell Goldstein et al. that in the U.S. warrants are not necessary for a law enforcement or other agents to monitor a freakin' web site? (I'm pretty sure that's true even if the site is password protected, but someone can correct me if I'm wrong.) If one culls info that would make determining the real world identity of the jihadi poster impt, and to be able to monitor their email and telephone conversations, can anyone seriously doubt that a warrant app submitted to the FIS Court detailing that Abdul236 wrote: "And the fertilizer is in place and we will be blowing up six Canadian locations next month," isn't gonna result in a warrant authorizing anything, including full body cavity searches of Abdul? And the govt even has 72 hours to act w/out a warrant -- Congress would five them more time if they did but ask.
God these celebrations in right blogistan, as if the Canadian terrorist bust at all implies that Bush's lawlessness is thereby justified, or that we don't all want terrorists foiled, make me so ill I can't even wade in to comments at any of those pro-Bush sites.
"The "argument" being made assumes that the Government can't engage in surveillance on terrorist communications unless it breaks the law."
ReplyDelete"Will someone please, please tell Goldstein et al. that in the U.S. warrants are not necessary for a law enforcement or other agents to monitor a freakin' web site?"
I don't read the Blogs used as examples as celebrating the success of "warrant less" surveillance. It seems to me they are just happy, as I am, to learn that authorities in Canada did what was necessary to stop an apparently serious terror scheme.
What does FISA even have to do with authorities in Canada monitoring international communications [or the Internet], with or without the NSA's help?
Will someone please, please tell Goldstein et al. that in the U.S. warrants are not necessary for a law enforcement or other agents to monitor a freakin' web site?
ReplyDeleteI just went over to monitor Goldstein’s post without a warrant and his main assumption is: that any successful investigation must violate someone’s civil rights otherwise it wouldn’t be successful.
If laws aren’t broken, then you can’t catch the bad guys. Period. Or so they think.
This grotesque celebration completely demonstrates their contempt for the law, all laws, and also any restriction upon government power. They can’t even acknowledge that this investigation could have been done without violating the law, or someone’s liberties.
Does Goldstein have any proof that the laws were broken, or rights violated?
Well, um, duh, - no, he doesn’t. He says he’s got a “feeling” and all this chorus of hoopla on the right is about Jeff’s “feelings” – it doesn’t take much to set these angry righties off does it?
Somebody cue the orchestra:
”Feelings, nothing more than feelings..”
I just spent some time catching up on this story at the Toronto Star's website; so far, there's no indication whatsoever that Canadian authorities resorted to anything more totalitarian than would be allowed already here under FISA.
ReplyDeleteAs I've said elsewhere, for the right-wing blogosphere, Straw Man isn't just a fallacy -- it's a way of life.
Glenn: Don't confuse us with the whole wacky warrant legal mumbo jumbo. Dur president knows what is best. Keep repeating that. Dur president knows what is best.
ReplyDeleteIt's a straw-man supernova!
ReplyDeleteFirst, I agree with the person who said it's a "straw-man supernova".
ReplyDeleteSecond, I'm not quite sure what they're celebrating -- that is, if an infringment on our civil liberties could be celebrated.
There's a pretty good write-up about the investigation and the people involved by the Toronto Star and while the reports are preliminary there's nothing to suggest that they had to resort to extra-legal procedures to "get their man". In fact, the article gives the impression of an operation working in an orderly way.
The Canadian arrests also highlighted several other aspects. Media, pundits and those simply in a rush to translate this story into a US issue need to stop for a minute and analyze what this meant to Canada first. #1 the press briefing indicated these were not AlQueda, but instead were "AlQueda INSPIRED"; #2 they were not foreign nationals, but home grown Canadians, albeit with a Muslim bent; #3 the cell/s were ferreted out using legal wiretaps not wiretaps that emmanated from US calls to Canada via warrantless wiretaps; these were taps within Canada; #4 the 3 tons of material they received were 3 x what was used in Oklahoma and were planned to be used on Canada-only targets. What speaks to me about this is the success of the Canadians in usng legal means to capture terrorists which will go a long way in the final prosecution of the lawbreakers. Simply put, it looks like the Canadians DID IT THE RIGHT WAY and will be rewarded by SUCCESSFULLY protecting the Candian people. Good for them!
ReplyDeleteGlenn,
ReplyDeleteIt would be interesting to know whether the Canadian authorities had to get a proper warrant to conduct their raid.
GG-
ReplyDeleteYou ask a number of apparently rhetorical questions in this post, such as "Why is it so hard -- for some people -- to apply that same, quite basic reasoning to eavesdropping and all other forms of surveillance?"
Since you seem to have set yourself the unpleasant role of debating these buffoons, I wonder whether you can go a little farther, remove the rhetorical mode, and try to help us actually understand why in fact it is so hard for these people to employ basic reasoning. The alternative implied by the rhetorical mode is that they don't actually believe what they say, and are just a bunch of liars. But I think a lot of them do believe it, and if you are going to continue to argue with these idiots, it might be useful in the long term to work out exactly how you think the psychology of such reasoning-deficient people functions--especially given that they presumably hold down normal jobs, feed themselves, often raise children, etc.
Michael Birk,
ReplyDeleteYou quote me, but still you have no idea what I said.
I said: "I don't read the Blogs used as examples [as in my interpretation of their posts language] as celebrating the success of 'warrant less' surveillance"
Note also that the CQ's post I linked to was dated May 30, before the current story.
My overall point in commenting here is that it would be unfair for readers to assume that all "right wing blogs", no matter how heavily slathered with paint from the same broad brush, are in fact the same.
Again, those quotes from the other blogs cited, as I read them, are not celebrating warrant less surveillance. Rather, they are simply comparing previous news to current news, something that bloggers of all stripes often do.
BTW, Jeff Goldstein is not mentioned in this post and I have not read Goldstein's post on this subject. My comment is not intended to be responsive to whatever observations made about what he has to say.
Ugly American,
You make a good point, the fact that this alleged terror plot was stopped is not even mentioned as a footnote here, something that crossed my mind too. Are people afraid to admit that surveillance has some value here?
The entire point of my post was first of all to give credit to Ace of Spades who correctly pointed out that the largest blogs on the left either gave little or no mention of this story.
ReplyDeleteBoth liberal and conservative bloggers post about issues where they see a political angle or controversy they want to expound on, and are not in the practice of repeating daily news events otherwise.
For conservatives this is the perfect kind of story to jump on and say: "Look! We were right! The bogeyman is real! Be afraid, be very afraid." Regardless of the NSA angle, this is a great story for conservatives to use in driving fear and hysteria. They may be saying they are celebrating a victory, but the real significance to them is that the evil doers are coming to get us, we have to do anything, anything to stop them and nothing else matters compared to that. It's really an acknowledgement of that they are looking for from liberals and they know they won't get it.
Despite the 'feelings' of righties that civil liberties and laws must have been violated in a big way in order to catch these guys because dear leader says that's the only way, the angle for liberals might eventually be that this is a counterexample which refutes that claim. That will require a lot more details than are known at this point.
The Ugly American:
ReplyDeleteSo I ask you the question directly. Are you glad to see 17 terrorists arrested before they blow people up?
Now I know your answer is yes Glenn. So why then did no one at your blog or so many other left leaning blogs mention it? Why can’t you admit this arrest was a good thing?
Do you view these 17 people who are accused of obtaining 3 tons of ammonium nitrate in order to launch several massive attacks on the Canadian people as common criminals?
If they were able to blow up for instance the subway system and a couple of government buildings would you call those things criminal acts?
Or an attack? An act of war maybe?
I think the answer is obvious Glenn their intent is not criminal but political. They view it as should we as a war.
Let me ask you a question, Glenn. Do you view this Ugly American as a common troll, or do you think he's part of a vast right-wing conspiracy?
I think the answer is obvious Glenn. His intent is not trollish but political. Trolls are little more than deliquents. Keyboard commandos are warriors warring against Islamofascism. So why then does no one at your blog or so many other left leaning blogs mention this daily?
Can you acknowledge in the very least that it is huge news, worthy of mentioning by any political blog let alone the largest political blogs either on the left or the right?
ReplyDeleteLike most bloggers, I don't post on every single news event - only ones where I have something to say. What is there to say about the fact that they caught these plotting terrorist? "Yay!" Everybody knows that there are Muslim terrorists and everyone hopes they are caught. When they are, what is there to say that's worth saying?
Do you write about every act of murder by death squads associated with the Iraqi government? Have you written about any of them? Did you write about the recent comments by the Iraqi prime minister that the American military slaughters Iraqi civilians with regularity? I didn't read much on pro-Bush blogs any of those events. Why is that?
But this means that canadians are treating terrorists as a law enforcement problem. Don't they know that you can't fight terrorists with law enforcement? You have to declare war it's the only way. /sarcasm
ReplyDeleteAre you glad to see 17 terrorists arrested before they blow people up?
ReplyDeleteNow I know your answer is yes Glenn. So why then did no one at your blog or so many other left leaning blogs mention it? Why can’t you admit this arrest was a good thing?
I can't speak for Glenn, but I'll offer one liberal/left perspective: government should and can work within the boundaries of the law, and its doing so is generally unremarkable. International police cooperation is good, and properly-authorized surveillance is certainly part of an effective system of law enforcement, so there's really no political angle here from our side... unless you'd prefer for us to point out that investigative work, done quietly and legitimately, and without the grandstanding, illegality, and general dishonesty that this administration usually employs, is more effective and rewarding than the aforementioned bullshit. But that would take the fun out of it for you guys, I suppose.
"You will look a little less foolish if you read and comprehend the post before commenting."
ReplyDeleteWell, nuf said, let's put your comprehension level to the test...
I understand Glenn's point about the FISA controversy, but I don't agree with the point of this post namely that some or all right wing blogs or "Bush followers" in general are trumpeting the Canadian arrests as validation of "illegal" warrant less surveillance.
In my case, I am a Bush supporter that like everyone else here knows next to nothing about the surveillance that led to the arrests in Canada. Saturday morning I posted about the story at my own blog but chose to remain silent on these questions.
As to gov't investigation of websites, is it true that to some degree, there are internal requirements of some sort of reasonable suspicion before a specific target can be um targeted?
ReplyDeleteThere are public places, especially religious in nature, where the gov't should not go in for the purpose of investigation alone without cause. Consider also "spying" on public protests. Again, I can do that, but when the gov't focuses on specific targets, it is a bit different
Still, not quite warrants. As to the "criminal" issue, it seems a bit off too say this is the defining reason why breaking FISA is a problem. Smoking dope tends to be illegal. It is not a problem really, even if gov't officials do it, solely for its criminality?
The FISA securities are in place for a reason -- to protect our privacy and limit government overreaching. Bottom line, and though focusing on the breaking the law issue is useful, it is only useful up to a point.
Do we really want to draw such a solid line on criminality? Consider a NYT piece today on needle exchange programs that the state of NJ refuses to do because it promotes illegal drug use.
I find it mindboggling that GG associates the surveillance of terrorists with the same legal structure as hunting a robber or murderer.
ReplyDeleteI also find it amazing that he thinks you can use simple FISA warrants to monitor billions of phone conversations. I guess you just issue a billion warrants.
FISA is a good system for some simplistic monitoring. It is an 8-track tape in a DVD world. I don't know why you nuanced progressives can't see it doesn't work.
FISA is a good system for some simplistic monitoring. It is an 8-track tape in a DVD world. I don't know why you nuanced progressives can't see it doesn't work.
ReplyDeleteMaybe because your dear leader said it was working fine until he was caught violating it.
Ok. I couldn't resist the sarcasm.
Essentially all of these arguments depend on this premise:
A. Islamic terrorists are plotting to kill us.
leading to this conclusion:
B. We must trust George Bush completely to act with absolute power in absolute secrecy and accept anything he does as a necessary course of action to protect us.
We are all in agreement on the premise, but the conclusion which works out very conveniently for some is unacceptable to others. They do not offer any rational, supportable argument for how B follows from A, because doing so would be an admission that it needed support or was even a legitimate point of contention. Instead they simply imply that no other conclusion is possible and anyone who disagrees with the conclusion by demonstrating disloyalty to Bush must have no concern for terrorism or actually support it. Logically this is nonsense, but rhetorically it has been rather effective for them.
No matter how we try to explain that we are in agreement on the threat and the need to deal with it, but disagree with what Bush is doing under the guise of protecting us, they will refuse to acknowledge the distinction and insist that lack of loyalty to Bush is aid to the terrorists. Whether they really believe that or are only trying to deceive others is impossible to tell. Since truth is subservient to loyalty in conservative values, there is no moral line crossed.
Glenn:
ReplyDeleteFrom what I can tell, their "reasoning" goes something like this: law enforcement was able to find out about this plot by engaging in surveillance of telephone calls and internet communications, and this proves that the President is right to engage in illegal (rather than legal) eavesdropping on Americans.
Really? Where do any of the linked blogs make this argument?
These blogs are lauding the effectiveness of apparently warrantless surveillance of international telecommunications and internet communications to capture nearly 40 al Qaeda aligned terrorists in several countries, most notably a group of 17 assembling materials for a fertilizer bomb.
Proving that such surveillance can be effective in stopping terrorist attacks is merely to state the obvious, not to prove any point in controversy.
LMAO!!! The fallback position for nearly all opponents of the NSA Program who post here is that the program is ineffective because any moron terrorist would avoid telecommunications to avoid being wiretapped.
This argument was absurd on its face before this latest bust because everyone from the original leakers to the Washington Post reported that the NSA Program was successfully identifying al Qaeda in the US.
The latest bust makes that argument look ludicrous.
As Barbara points out in the post below (but shouldn't have to), nobody opposes surveillance of telephone calls or Internet communications. Nobody. The issue isn't whether the Government should eavesdrop, but whether it should eavesdrop in compliance with the law (i.e., with warrants) or in violation of the law (without warrants). Aren't we all able to ingest that extremely simple point by now?
You have just admitted that you would oppose warrantless interception of telephone calls or Internet communications.
Let's explore that for a moment...
There is no evidence that warrants were obtained for the surveillance of the telephone calls or Internet communications which led to this successful counter terror operation.
Indeed, there is no evidence that the probable cause necessary to obtain a US warrant was present before the surveillance of the telephone calls or Internet communications which led to this successful counter terror operation.
Therefore, it is more than possible that application of FISA would have barred the surveillance which made possible this successful counter terror operation.
The laws we have in place make it easy to engage in surveillance of all types against terrorist suspects like this.
This claim never had any merit.
According to the leakers and other government sources, this NSA Program is surveilling telephone numbers captured from al Qaeda. As I pointed out repeatedly before, merely capturing telephone numbers from the enemy does not provide probable cause that these numbers are actually used by the enemy for terrorist activity. It could just as easily be the number for the al Qeada agent's favorite falafel maker. Therefore, application of FISA could very well have shut down the NSA Program, which may have been part of this successful counter terror operation.
Didn't we all learn this point early on in school: there are criminals in the world, and allowing the police to break down our doors without warrants would help criminals be caught. Despite that fact, we don't allow the police to break down our doors without warrants, because the police can catch criminals by searching homes only when they have warrants, a process enshrined in the Constitution in order to avoid the inevitable abuse that comes from allowing the Government to search our homes without any oversight. Thus, people (such as the Founders) who favor the warrant requirement before the police can search our homes aren't pro-criminal. They know that criminals can be caught while preventing government abuse and lawlessness. Why is it so hard -- for some people -- to apply that same, quite basic reasoning to eavesdropping and all other forms of surveillance?
No one is arguing that the 4th Amendment does not apply to gathering criminal evidence. However, that was never the issue.
The courts have universally held that the 4th Amendment does not apply to intelligence gathering targeting foreign groups and their agents in the US. That is the issue.
This comment has been removed by a blog administrator.
ReplyDeleteej said...
ReplyDeleteOn May 30th, a federal judge ordered that John Ashcroft and Robert Mueller must reveal whether they were aware of any secret government monitoring of communications between the plaintiffs and their lawyers....
This was the easy part of the defendant's request. The judge correctly reasoned that a yes or no answer to this discovery question would not reveal any secret means or methods of such surveillance. The argument that an answer would reveal the fact of the surveillance is a little bit silly given that in this case the defendant claims the government accidentally disclosed documentary evidence of this surveillance.
The problems arise if the government replies yes. The defendant will naturally then request full discovery as to the purposes, means and methods of the top secret surveillance. The court can't dodge a ruling on the secrets privilege at that time.
Judge Taylor is presiding over the case of ACLU v. NSA. The suit was filed on behalf of attorneys, journalists, scholars, and others who have a "well-founded belief that their communications are being intercepted by the NSA." On March 9, 2006, the plaintiffs had filed a motion for partial summary judgment (PDF)....
The government never responded to this motion, choosing instead to raise at the last moment the state secrets privilege. As I explained earlier, the state secrets privilege, once a rarity in our justice system, is now frequently used by this administration to terminate the most critical litigation of our time.
And so, the government filed its state secrets brief, confident I'm sure that the affidavits from various high-level officials warning of great damage to national security would turn any judge into a quivering pool of judicial jello, and the case would be dismissed forever.
Not so fast.
U.S. District Judge Anna Diggs Taylor apparently doesn't like the government's games. Instead of ruling immediately on the state secrets privilege (and possibly killing the case), she has ordered a hearing on the plaintiff's motion first. (You can read the order here in PDF form). Only after she hears both sides argue the legality of the program will she proceed to the state secrets privilege. Translation? For the first time, a court will hold a hearing on the legality of the program....
Actually, the judge merely deferred ruling on this motion at this time. She wants to hear all the arguments on all the issues first. This is not unusual.
The judge may still decide to grant the government's motion to dismiss based on the government secrets privilege and avoid ruling on the plaintiff's motion for summary judgment.
What is very interesting isn't that the judge wants to hear legal arguments on the motion for summary judgment. Rather, that she would do so before the parties conducted discovery to develop a factual record.
Summary judgment is frowned upon by the courts and summary judgment without a set of stipulated facts is a sure goner unless the judge is playing political games.
I would be very surprised if the government stipulated to any set of facts until the government secrets privilege has been ruled on at the trial level and if necessary on appeal.
Anna Diggs Taylor is a Carter appointee with a long history as an activist attorney creating government "affirmative action" racial discrimination programs. She could be playing political games, but I will reserve judgment until I see what she does here.
bart:The fallback position for nearly all opponents of the NSA Program who post here is that the program is ineffective because any moron terrorist would avoid telecommunications to avoid being wiretapped.
ReplyDeleteWell, no, not really. I might use it in response to the claim that someone releasing the story about the government's illegal program of warrantless wiretapping is somehow "providing aid and comfort" to the terrorists, to be sure. But I would never have used that as a criticism of the program itself, because, as Glenn says, and you so conveniently misunderstand,
Glenn:...nobody opposes surveillance of telephone calls or Internet communications. Nobody. Proving that such surveillance can be effective in stopping terrorist attacks is merely to state the obvious, not to prove any point in controversy.
Again, Bart, you have successfully kicked your straw man, and burned him down to the ground. Great job.
You imply that this surveillance was done without warrants or judicial oversight, and proceed to gloat that this justifies the President's NSA program - pretty much proving Glenn's point from the original post.
There is no evidence that warrants were obtained for the surveillance of the telephone calls or Internet communications which led to this successful counter terror operation.
Indeed, there is no evidence that the probable cause necessary to obtain a US warrant was present before the surveillance of the telephone calls or Internet communications which led to this successful counter terror operation.
From The Toronto Star: It's still unclear how the group of suspects is connected and police yesterday offered few details of its alleged activities. But sources close to the investigation told the Star that the investigation began in2004 when CSIS began monitoring fundamentalist Internet sites and their users.
They later began monitoring a group of young men, and the RCMP launched a criminal investigation. Police allege the group later picked targets and plotted attacks.
I would imagine that active participation on a radical fundamentalist website would warrant a warrant, Bart. Your implication that this was somehow conducted without the benefit of warrants or due process is casuistic (on the plus side, I am learning a lot of new words for misleading through the use of the Webster's widget on OS X).
Furthermore, your implication that this somehow justifies the excesses of this administration is, I don't know how to say this without repeating myself, EXACTLY WHAT GLENN WAS TALKING ABOUT. I am sure that the KGB was very successful in their intelligence gathering. I am also sure that they were not too overly concerned with warrants and due process. I in no way want to emulate the climate of fear and intimidation which they brought in the process of being that successful. This has never been about whether or not this type of behavior would be efficient or productive on the government's part. Only whether it would be legal. Stop that shit, already.
This was not an "intelligence gathering" operation on "foreign agents." This was a (Candian) domestic criminal investigation, which resulted in arrests, and will result in a trial, where evidence must be presented, so I hope to God that it was acquired WITH A WARRANT so they can put those little shitheads away for life.
I am probably one of the few people here to think that your "Article II" argument has enough merit to think that you might be sincere in your positing of it, over and over, in the face of many arguments to the contrary. But this is really one of your poorest outings.
nick said...
ReplyDeleteI would imagine that active participation on a radical fundamentalist website would warrant a warrant, Bart.
:::chuckle:::
1. To get a criminal search warrant in the US, you need evidence of a crime. Merely visiting a radical website is not enough for a warrant or you all need to be very worried.
2. This observation is amusing because of all the hulabaloo here and on other leftist blogs bemoaning the surveillance of the public activities of American radical groups, which would not require a warrant at all.
Your implication that this was somehow conducted without the benefit of warrants or due process is casuistic (on the plus side, I am learning a lot of new words for misleading through the use of the Webster's widget on OS X).
I was attacking Glenn's assumption without evidence that the surveillance conducted in this counter terror op would easily pass muster in a FISA court and receive a search warrant.
BTW, isn't OS X great? A fellow Mac user can't be all bad...
This was not an "intelligence gathering" operation on "foreign agents."
I agree. This operation started in Canada. However, the international communications of this group into the US and several other countries were then placed under surveillance. At this time, we have no idea whether the US was involved in surveilling these international communications into the US with or without a warrant to identify the al Qaeda being contacted in the US.
"This was not an "intelligence gathering" operation on "foreign agents." This was a (Candian) domestic criminal investigation, which resulted in arrests, and will result in a trial, where evidence must be presented, so I hope to God that it was acquired WITH A WARRANT so they can put those little shitheads away for life."
ReplyDeleteWhere are you making this up from?
TORONTO - A Canadian counter-terrorism investigation that led to the arrests of 17 people accused of plotting bombings in Ontario is linked to probes in a half-dozen countries, the National Post has learned.
http://www.canada.com/nationalpost/news/story.html?id=de3f8e90-982a-47af-8e5e-a1366fd5d6cc&k=46849
It has been widely reported that Canada used it's anti-terror laws enacted after 9/11. Some of the laws include arrests without warrants and the fact they can present one-sided evidence to detain a person without the detainee's attorney seeing any of it.
Also, the U.S. Patriot Act comes into play as they had contact with two Americans. The NSA program may very well have been involved in this.
I swear, the left just reverts to the same old reasons why it can't be trusted to protect our citizens.
While you jumped and cheered and put Russ Feingold on a pedestal for his vote to can the Patriot Act, you can see why 99 percent of the population think he is in idiot.
Bart: ... To get a criminal search warrant in the US, you need evidence of a crime. Merely visiting a radical website is not enough for a warrant or you all need to be very worried.
ReplyDeleteAny lawyerly types want to step in here for me? I can't imagine a judge in the US turning down a surveillance warrant request if they could be shown some posts along the lines of "yeah let's get together a few tons of ammonium nitrate and blow up Monreal!" (Unless it was from a Bruins' fan), but I don't have any legal expertise here to stand on. Hypatia expresses this thought above more eloquently than I.
And Bart, I wouldn't want the standard to be "just visiting" a website, which was why I explicitly referred to "active participation." Just another example of how you are skewing the relevant language to suit your needs, counselor.
It is entirely within the government's purview to monitor any public activities of any person or group. The only thing I would decry would be their choice of what to monitor - PETA and war protestors don't seem to me the most likely places to start wiping out the global terrorist threat. But hey, what do I know?
David Byron:
ReplyDeleteIt's simple enough. This is what happens when you live in an echo-chamber. When you get kudos not for making sense and surviving criticism, but just for forming words into sentences that end up sounding supportive of the established group position.
...
I see the same thing with feminists.
Ummm, David: One small request: Will you kindly, please STFU about Feminazis or "feminism" or whatever seems to have gotten a bee in your bloomers. I'ts not relevant here.
So quit whining, OK?
Cheers,
HWSNBN is clueless:
ReplyDeleteThese blogs are lauding the effectiveness of apparently warrantless surveillance of international telecommunications and internet communications to capture nearly 40 al Qaeda aligned terrorists in several countries, most notably a group of 17 assembling materials for a fertilizer bomb.
1). He assumes it's warrantless.
2). This is Canada, ferchrissake, so questions about "warrantless" have no real meaning as to HWSNBN's beloved brown-shirt spying down here.
Cheers,
Cheers,
Anonymous: ::quotes me:: ::replies with...::It has been widely reported that Canada used it's anti-terror laws enacted after 9/11. Some of the laws include arrests without warrants and the fact they can present one-sided evidence to detain a person without the detainee's attorney seeing any of it.
ReplyDeleteNo mention of any of those draconian measures in the story you cited, and I have yet to see any. I have not "made anything up."
While not a huge fan of the Patriot Act, I am willing to go along with it, in recognition that these are unusual circumstances, to say the least. My problem is with the Bush Administration's claim to be able to violate the law in order to surveil and detain those who are deemed terrorists by, well, the Bush Administration. No judge, no congress, no oversight, just the kids in the pool policing themselves.
The Bush Administration says "these are the laws we need. We know they are a little extreme, but these are extreme circumstances." It then proceeds to go and enact several policies which completely end-run the already extreme measures it just got the public to agree to. This is my (our?) problem.
Absolute power and all that.
My point in bringing up the criminal arrests et al in response to a post by Bart is that he has continually claimed for months now that the President has Article II powers which grant him the authority to conduct warrantless domestic surveillance for "intelligence-gathering" purposes. This would be out of the purview of criminal invetigations, and could not be used as evidence in a criminal investigation, if I understand the argument correctly.
The fact that these people were arrested by civilian authorities and are going to be tried as criminals in a civilian court, not as "enemy combatants" in a miliitary tribunal, was the contrast I was making. Evidence gathered with no warrant would not be admissible here, I don't know about Canada.
I swear, the left just reverts to the same old reasons why it can't be trusted to protect our citizens.
I consider it of profound importance to protect our citizens from the gross over reach of our own government, first and foremost. Else we are that which we fight.
I do not live, and will not recognize any state which claims I live, in freedom granted, or revoked, at the whim of the state.
Neither do you. Don't take them lightly.
Roosevelt and Truman were both Democrats, as I recall. Stop with the "left can't protect the country" meme. There is courage on both sides. I don't impugn the motives of (most of) the right, just the methods used.
HWSNBN is even more clueless:
ReplyDelete[Glenn]:Proving that such surveillance can be effective in stopping terrorist attacks is merely to state the obvious, not to prove any point in controversy.
LMAO!!! The fallback position for nearly all opponents of the NSA Program who post here is that the program is ineffective because any moron terrorist would avoid telecommunications to avoid being wiretapped.
Nope. The programs are not the same, nor are the activities in question. Not in the least. HWSNBN makes the further logical fallacy of "equivocation"; he's trying to confuse people as to different things (i.e., the warrantless wiretaps and the data mining or omnivorous sniffing).
Cheers,
Cheers,
HWSNBN:
ReplyDeleteThere is no evidence that warrants were obtained for the surveillance of the telephone calls or Internet communications which led to this successful counter terror operation.
Indeed, there is no evidence that the probable cause necessary to obtain a US warrant was present before the surveillance of the telephone calls or Internet communications which led to this successful counter terror operation.
Yhis is CANADA, stoopid. *sheesh*
Cheers,
HWSNBN:
ReplyDeleteWhat is very interesting isn't that the judge wants to hear legal arguments on the motion for summary judgment. Rather, that she would do so before the parties conducted discovery to develop a factual record.
Why? A summary judgement doesn't require that all evidence be on the table, only that the evidence and/or factual claims made in the pleadings (taken for purposes of the motion as being in favour of the non-moving party) be enough to decide the case as a matter of law. As a purported lawyer, you'd think that HWSNBN might know this. He's either lying about his being a lawyer, or he's so close to being incompetent as to merit involvement of the bar to make sure he's dequately representing clients.
Cheers,
Proving that such surveillance can be effective in stopping terrorist attacks is merely to state the obvious, not to prove any point in controversy. The issue isn't whether the Government should eavesdrop, but whether it should eavesdrop in compliance with the law (i.e., with warrants) or in violation of the law (without warrants). Aren't we all able to ingest that extremely simple point by now?
ReplyDeleteWhoops. No. Maybe everyone else in the world can ingest that but I don't for four reasons:
l) I can't see how the "the law" is relevant here. Laws sanctioning unacceptable actions don't impress me.
2) Despite that, if one wants to look to the "ultimate law" in this country, the Fourth Amendment, I do not think the spirit of the Fourth Amendment would sanction obtaining a general warrant such that it would list "person" to be searched as "the population of the United States of America."
3) I think it really tests one's credulity to maintain that people who are engaged in terrorist acts plan them on the phone or over the Internet. I dispute that. I think they meet personally. Wouldn't anyone?
4) Even if it could be argued that monitoring all Internet commuications and phone calls and mail (which is where we are headed and it will be made "legal" and rubberstamped by the Supreme Court) might be effective in stopping certain terrorist attacks, if you weigh the benefits (preventing a terrorist attack) against the disadvantages (a police state), it's not worth it. You cannot have a contitutional republic which is a police state. They are not compatible.
If the choice is freedom or fascism, I vote for the former.
And in an age where technology far exceeds anything the Framers could have envisioned, I think that is precisely the choice.
I expect Glenn will come to this position himself eventually although I understand he is not there now.
The courts have universally held that the 4th Amendment does not apply to intelligence gathering targeting foreign groups and their agents in the US. That is the issue.
ReplyDeleteThe issue is that when the administration gets to decide that the 4'th amendment ceases to apply because they have determined by a standard of their own choosing, hence arbitrary, and with no concurrence (i.e. warrant) that a citizen might be such an agent, then the 4'th becomes just another law they have agreed to take under advisement but not be bound by. It affords no protection at all since everyone might be such an agent. Regardless of the standard they have chosen to apply, the fact that they alone can set the standard and change it at anytime, and no one can hold them even to that, makes it irrelevant.
The 4'th amendment protects the rights of citizens by constraining the actions of the government. The Bush administration's argument is essentially that they cannot be constrained and there is no need because they always act reasonably. Those who accept the latter and have complete faith in the administration have decided to overlook (or rationalize away) the fact that the first part of the argument runs counter to the explicit intent of the constitution and the law. Those of us who do not believe our government should be based on unconditional trust recognize this as an illegitimate seizure of power, regardless of whether or not the actions taken so far have been reasonable or effective.
Nuf Said,
ReplyDelete"Are people afraid to admit that surveillance has some value here?"
The impression I get from some of the comments here is sort of the inverse of Glenn's remarks about right wing blogs. In other words, comments from the left tend to focus on using the Canadian terror story as a backdrop to further discuss FISA, as Glenn did further into his post, rather than focusing on how the RCMP and CSIS in Canada employed surveillance during the investigation.
"The post links to several examples from Bush supporters, which read with almost childish giddiness."
Ooops, your comprehension level just dropped off the chart. Take Protein Wisdom, linked to the word "hysterical", who only briefly comments on the story and the fact that investigators were monitoring public web sites. For example: "some 'spy agency' somewhere plucked a conversation out of (cyber)space". The author makes no mention [other than what might be found in the block quoted National Post story] of President Bush, warrant less surveillance, FISA, the NSA or even anything about the US even being involved in the investigation for that matter.
"There is nothing that implies all right wing sites did this."
Nor is there anything implying that all right wing sites didn't do this [celebrate the Canadian arrests as validation of "illegal" warrant less surveillance], which is why upthread I said: "it would be unfair for readers to assume that all 'right wing blogs', no matter how heavily slathered with paint from the same broad brush, are in fact the same".
Good night, and good luck...
eyes wide open said:
ReplyDelete3) I think it really tests one's credulity to maintain that people who are engaged in terrorist acts plan them on the phone or over the Internet. I dispute that. I think they meet personally. Wouldn't anyone?
I suggest to read how the alleged Canadian terrorists used the internet to plan with other terrorists from multiple overseas countries. They did this using the internet. It is no different than anyone else, it is cheaper to converse over the net, than to fly somewhere for a meeting.
I don't know why you think terrorists would only try to communicate in person. That might work among the moneychangers in the Arab world, but it wouldn't work well in the U.S. or Canada.
FWIW, but OT, IC that Cap'n Kir... -- umm, sorry, "Ed" -- over at Starfleet Command (nee Captain's Quarters) is referring to Tom Lipscomb, one of the Swift Boat Veterans Against The Truth enablers, as a writer who "earned [] a Pulitzer Prize nomination". *sheesh* Lipscomb doesn't show up anywhere as even a Pulitzer finalist, much less recipient (although granted Cap'n Ed says "nominated" ... as if that means something). Searching Lipscomb's name on the Pulitzer web shows nothing. It may be that someone "nominated" him, but I suspect that may be about the same as that doofus Republican legislator from Florida "nominating" their favourite quack for the Nobel Prize in Medicine....
ReplyDeleteCheers,
The terror cell involved 7 nations, this was not a group of wayward choir boys from the local mosque.
ReplyDeletehttp://apnews.myway.com/article/20060605/D8I2B1TO0.html
"Surely you are not suggesting that monitoring every American's Internet communications was the only way to apprehend these alleged Canadian plotters?"
First, EWO, you said you didn't believe terrorists would use the internet to plan attacks. These terrorists used the internet.
Second, the NSA has multiple programs. You claim not one terrorist attack has been prevented. Yet, there has not been one single attack and you cannot prove the programs haven't stopped an attack. Would you change your mind if these programs stopped an attack? You have already stated loss of civil liberties was already more important to you.
The mass monitoring of internet/phone calls is far less intrusive than checking airline bags or your purse or wallet. It operates on a science of probability that is minimally intrusive and can churn incredible amounts of data into possible leads.
The biggest misinformation spread on this board is how easy it is to get a fisa warrant. When you are dealing with terrorists working domestic to domestic, domestic to foreign and foreign to foreign, it is not like getting your drivers license renewed.
Glenn wrote --
ReplyDelete... Eavesdropping without warrants isn't wrong because it "violates civil liberties." It's wrong because since 1978, it's illegal to do so; it's a criminal offense. ...
This is not a good distinction, Glenn. In legal fact, eavesdropping without warants is both a violation of civil liberties and a violation of law.
18 USC 241 -- felony conspiracy against citizen rights -- provides the "legal fact".
18 USC 241 -- "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; ... They shall be fined under this title or imprisoned not more than ten years, or both; ...".
The personal privacy rights established in many SCOTUS decesions across many decades say that I have the Constitutional civil liberty to be free of unwarranted surveillance.
FISA says that I have the statute-based civil liberty to be free of unwarranted surveillance.
Both sources of my civil liberty to be free from unwarranted surveillance are made legal facts by 18 USC 241.
It's a law hated by today's predatory politicians of both major corruption-machine parties and ignored by the DOJ and SCOTUS. It threatens the whole Bush-Cheney house of cards, built to gain excessive profits and power by suppressing citizen rights.
I don't have to tell you that felony forfeits all immunities -- judicial, executive, and legislative. Do the felony, do the time -- regardless of your being an elected/appointed official or life-time appointee to the federal bench. No get-out-of-felony-free cards for high station in life.
The reach of 18 USC 241 is considerable and, as with you not taking it into account, largely ignored. But it has been violated many times since 10 December 2000 and its lack of enforcement is obstruction of justice writ huge.
It's not some quirky little law, rightfully ignored. It's the law.
18 USC 241 was violated by SCOTUS in Bush v. Gore, establishing a usurpation of the presidency. The usurpation violated the rights of all citizens to have a president elected in accord with the Constitution. The usurpation made Bush-Cheney null and void from its beginnings, you know. 10 December 2000.
The usurpation established an unconstitutional anti-law regime, in which every law signed, every appointment made, every order given, every policy promulgated is null and void.
The status of the usurpation is not changed by Bush-Cheney being declared the winners of Election 2004.
And it gets worse. Our soldiers have the Constitutional right to be sent to war only on the expressed order of Congress. Nothing in the Constitutional authorizes any branch to give away any power assigned to it in the Constitution. When 373 senators and members of Congress gave Bush his very own war powers for Iraq, they began a separate felony conspiracy against our soldiers' rights in violation of 18 USC 241.
The felony conspiracy against soldiers rights carries a stiffer penalty than just a max of ten years in federal prison. The text of 18 USC 241 continues --
"... and if death results from the acts committed in violation of this section ... or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."
18 USC 241 is not some trite law to be pooh-poohed away whenever some two-bit tyrant wants it to disappear. It is one of the pillars of our rights, freedoms, and liberties.
Bush-Cheney, in its mad rush to butcher people for profits and power, has violated 18 USC 241 so many times that I doubt we will ever have an accurate count.
One count of violation that we do not need to lose track of, however, is the warrantless spying on US citizens by NSA -- at Bush's order. That spying is a brute-force violation of our civil liberties AND the law.
Stephen Neitzke
DD Revival
http://ddrevival.blogspot.com
Ugly American 5:14 PM,
ReplyDelete"In this case survielance isn't an issue one way or the other fly"
Right on Ugly, especially considering that at present we know next to nothing about the investigation. The important news is, of course, the fact that an alleged terror plot was stopped.
Michael Birk 1:27 PM,
"Seriously -- could Goldstein's "argument" be any more childish?"
But is Goldstein's post fairly read as a "hysterical celebration" of warrant less surveillance? I don't think so.
Anonymous 12:20 AM,
You make some great points and I couldn't agree more.
Ugly American 7:53 PM,
Interesting questions.
As for my two cents, I would say the overall goal would part of a larger conspiracy to one day dominate the world by force. Each such terror attack should definitely be considered an act of war against all western nations.
cfaller96,
ReplyDelete"Ugly American, are you familiar with the concept of 'innocent until proven guilty'?"
And what about people that assume "the President broke the law and continues to do so", without the benefit of due process. By your high standards, would you consider that to be a good, or a bad assumption?
the fly said:
ReplyDeleteAnd what about people that assume "the President broke the law and continues to do so", without the benefit of due process. By your high standards, would you consider that to be a good, or a bad assumption?
To me it's already proven that the President broke the law, because the President and the Attorney General have already conceded that FISA is the exclusive mechanism for electronic surveillance of American citizens. The President asserts the power to break the law, but that's different than declaring the Program is in compliance with FISA.
But, you're right, I am still making an assumption about the President's guilt. I feel much more comfortable, however, about making an assumption based on information obtained through investigative journalism, rather than stenography journalism where the information solely comes from the government.
Remember that the government has been wrong before (Jose Louis Padilla), and thus its credibility is questionable when it comes to determining the guilt of a citizen. Assuming guilt based on a government press release (which is what Ugly American did) is far worse than assuming guilt based on information the government never wanted publicized in the first place.
But you're right, this President is presumed innocent until proven guilty. So in that case, let's "arrest" him (i.e. Articles of Impeachment) and let's give him his day in court (i.e. Senate trial). Just remember that I was cutting Ugly American down because he felt an arrest was a "victory" that deserved more "celebration" from the left. No matter how much I distrust and am horrified by this President, I won't consider Articles of Impeachment to be a "victory", and I won't be chiding right wingers for not "celebrating" enough.