Unclaimed Territory - by Glenn Greenwald


I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, December 31, 2005

The Party of Truman

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

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

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

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

Praising the people who attack you

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

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

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

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

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

HANNITY: I read it fully, all seven pages.

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

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

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

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

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

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

HANNITY: Unbelievable.

COLMES: Any evidence that that ever happened?

HANNITY: Unbelievable.

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

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

Threatening Administration critics with criminal prosecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 30, 2005

Finally punishing the wrongdoers in the NSA scandal (updated)

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

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

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

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

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

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

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

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

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

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

Sam Alito and Deference to Executive Power

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

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

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

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

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

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

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

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

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

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

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

Bush supporters just want to help

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fear as the driving political belief

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 29, 2005

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 28, 2005

The President's law-breaking

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

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

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

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

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

Republicans speak out forcefully for the rule of law

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

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

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

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

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

Rep. JC Watts - (R-OK)

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

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

Rep. Tom Delay (R-TX)

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

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

Rep Dick Armey (R-TX)

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

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

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

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

Christopher Cox - (R-CA)

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

House Impeachment Manager Stephen Bryer (R-IN)

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

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

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

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

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

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

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

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

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

Rep. Robert Goodlatte (R-CA)

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

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

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

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

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

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

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

The Administration's "very bad people" defense

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ten Worst Americans

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 27, 2005

FISA Court rejected Bush surveillance applications?

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

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

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

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

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

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

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

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

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

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

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

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

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

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

The idiotic and revealing Civil War analogy

If one wants to stay abreast of the lowly depths to which blindly loyal Bush worshipers are sinking in order to defend their leader, it is always worthwhile to pay a visit to the Powerline Blog, a virtual Bush-glorifying museum which always features up-to-date exhibits of the most intellectually dishonest pro-Bush talking points.

Currently on display over there is an unbelievably vapid attempt – this one by Scott Johnson, who playfully refers to himself as Big "Trunk" -- to justify George Bush’s lawless expansion of executive power by equating it to Abraham Lincoln’s suspension of habeas corpus and other emergency measures taken to save the Union during the Civil War. Invoking the nation-threatening crises faced by Abraham Lincoln to justify George Bush’s current law-breaking is breathtaking in both its dishonesty and stupidity.

During Lincoln’s Presidency, the entire nation was engulfed in an internal, all-out war. Half of the country was fully devoted to the destruction of the other half. The existence of the nation was very much in doubt. Americans were dying violent deaths every day at a staggering rate. One million American were wounded and a half-million Americans died (a total which represented 5% of the total population), making it the deadliest war America has ever faced, by far, including all wars through the present. On multiple occasions, more than 25,000 Americans – and sometimes as many as 50,000 – were killed in battles lasting no more than three days. The scope of carnage, killing, and chaos – all within the country, on American soil – is difficult to comprehend.

Making matters worse -- much worse -- the country was only 70 years old at the time. And even before the Civil War began, America was teetering precariously from these unresolved internal conflicts. The country then was a shadow of what it is today, with a tiny faction of the strength, stability and cohesion which, 140 years later, characterize the United States.

Does it really even require any debate to see that we are many universes away from the existential, all-consuming crisis that a still-young America faced during its Civil War? Could our situation today be any more different from what it was then?

The United States today is a nation that has not had a single attack for four years. In the last ten years, it had a grand total of one attack on its soil – an attack which took place on a single day and killed roughly the same number of Americans as suicide kills every month (somehow it's perfectly acceptable to make comparisons like this to show how safe Iraq is and what a great, un-deadly war it's been, but it's horrible to use exactly the same rationale to put the threat posed by terrorism into some perspective).

The attention of Americans these days is primarily devoted to "news stories" involving pretty young girls who get abducted by teenage boys, salacious trials of pop stars, and the latest local fire. Americans spend a lot more time and energy analyzing plot mysteries on Desperate Housewives than they do discussing counter-terrorism measures. We just experienced what Amazon.com is suggesting is a record period of Christmas buying of luxury items, computer toys, and other sundry forms of light entertainment and distraction. If this is a nation at "war," it certainly is making the best of it.

To compare our current situation in America to the existence-threatening crisis of the Civil War -- and to even insinuate that the extraordinary liberty-revoking measures employed by Abraham Lincoln to save the union can be used to justify similarly extreme measures now -- is a form of delusion and/or propaganda so severe that it is difficult to describe it as anything other than deranged.

The Bush Administration has created a climate and a set of political mores pursuant to which we are all supposed to uncritically accept and robotically recite the decree that "we are at war," which, in turn, justifies all of the excesses and infringements of liberty which become more acceptable when "we are at war." The punishment for failing to blindly accept this war decree is to be branded an Al Qaeda-loving subversive who wants to coddle terrorists and give them therapy instead of helping win the glorious war we are waging.

Constitutionally, we are not at war, because Congress has not declared any such war as required by Art. I, Section 8. Nor, by any other measure, are we at war in the way we were at "war" during the Civil War, or World War I or II. We have no defined enemy, no standard for "winning," no exit goal, no battlefields. What we have is an endless conflict, against a group of individuals motivated by religious and political convictions which guarantee its hostilities towards us, but not a war.

And if that is merely a semantic distinction, if one insists that it is appropriate to call our conflict against groups like Al Qaeda a "war," this "war" could not be any more unlike what America faced during its Civil War. The word "war" has become an all-purpose political tool, to the point where it is virtually impoverished of meaning. "War" is something we wage on cancer, on poverty, on drugs, and now on "terror." "Wars" now come in the "cold" variety, the traditional form against other countries, as in Iraq, and in vague, interminable conflicts with ill-defined enemies which are capable of highly limited strikes once every few years.

But whatever else one can say about our conflict with terrorists – even if one insists on calling it a "war" -- it is nothing even remotely like the Civil War, when the existence of the nation was in doubt and the whole country engulfed by killing and anarchy. That Bush defenders now invoke the incomparably severe crisis of the Civil War -- and hail the dangerous revocations of liberty which that crisis necessitated -- gives a pretty clear idea as to how extreme their fear-driven perspective is and how radical their "pro-security" aspirations have become.

UPDATE: For a superbly analytical and well-informed discussion of the Lincoln/Bush comparison, see these posts -- here and here -- by Maha, along with her comments (and those from a couple others) in the Comments section to this post.

What the NSA scandal is really about

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

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

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

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

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

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

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

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

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

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

Would you be in favor of having the Bush Administration order the NSA to monitor all of your telephone conversations, e-mails and computer communications without a warrant or any judicial oversight, as long they committed themselves to using the information only to prevent terrorist acts and to capture terrorists?

Would you be in favor of having the Bush Administration engage in random secret, warrantless searches of all houses and apartments ("sneak and peaks," where the resident is never aware of the searches) in order to find terrorist cells inside the United States?

Would you be in favor of having the Bush Administration place hidden cameras in homes of people it suspects of having some contact with terrorists, either intentionally or innocently, in order to monitor the activities inside those homes, provided it promises to use such monitoring only to combat and prevent terrorism?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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