January 26, 2006

Imperial Designs

And we're not talking Faberge eggs.

The administration does not need Congress to extend the USA Patriot Act in order to keep using the law's investigative powers against terror suspects.

That's from a Boston Globe story about domestic spying, and Atty. General Gonzales' 42 page memo response. That little quote comes from the fine print.

Mikevotes says:

If this is the case, at what limit does the executive's powers lie?

A secondary issue in all ths is that the power to designate someone as a terror suspect is currently solely claimed by the executive as well, a designation they have been attempting to extend to include "environmental terrorists" and "narco-terrorists" (drug dealers.) There is no ability to challenge the status of "terror suspect" and as far as I can tell, no burden of proof, and no review by anyone outside the administration.

It also calls into question the official status of the antiwar protesters who showed up on the DoD's watch list. The NSA is a part of the Defense Department, so does an appearance on the DoD's threats list warrant terrorist status avail the government the justification during "war time" to tap their phones and conduct "sneak and peek" no notification searches?

In effect, the Bush administration has claimed the ability to spy on anyone. But it's worse than that.

Once a subject is designated as a terror suspect, this administration has claimed the power to tap their phones, and examine any business records without warrant(medical, financial, psychological,) and search their residence all without review. To then detain them without charge, to ship them off to a "black site" base or "friendly" country for aggressive interrogation or outright torture. And then to use that information to designate others as "terror suspects" and potentially repeat the whole process in an exponentially exapanding tree.

He goes on:

Explain again to me just freedoms you are protecting, Mr. Bush. The freedom of "security of person" is the base right from which all other gurantees flow. It is the first guarantted right in the UN's 1948 Universal Declaration of Human Rights to which the US is a signatory.

Universal Declaration of Human Rights? Didn't Bolton use that for TP right after he got his sneaky recess appointment.

Posted by binky at January 26, 2006 08:16 PM | TrackBack | Posted to Free Speech | J. Edgar Hoover | Law and the Courts | Liberty | The Ever Shrinking Constitution


The key word here is alternative. With the speed with which the original homeland security act was drafted and passed, can you honestly tell me that Congress could not have by now submitted new draft legislation to clarify an alternative way for real Al Queda terror suspects that provides for review and accountability? But why then is all we hear accusations of how Bush broke the law ("He played on our fears!") when they could just as easily have submitted alternative legislation by this point? Maybe, just maybe, they're more interested in scoring points than in actually improving the intelligence gathering to protect our nation.

Posted by: Morris at January 26, 2006 09:38 PM | PERMALINK

Morris and I agree! - Yes Morris, there are indeed Republicans (those who control Congress) outside of the White House who are complicit in this.

C'mon - do you really think the Republicans on the hill would do such a thing given how adamant the White House would be in opposing it? The are far too weak-willed.

Posted by: Armand at January 26, 2006 09:59 PM | PERMALINK

I think what's most alarming about this little whistle-stop, it's-not-your-rights-I'm-violating-so-don't-worry-about-it campaign is the repeated mantra about safeguards. Handing a wiretap order to the guy in the next cube is not a safeguard as the Constitution imagined it, any more than it's a check or balance. There can be no judicial review within the executive branch as a matter of definition, and insofar as judicial review, even if by secret court (a la the FISA court), is the only proper check on a particular executive act, Bush is once again simply lying to the American people when he assures them that there are safeguards. It's like citing your spouse as the only peer review you need.

As for alternative legislation, I'm with Morris and Armand to the extent the critique is that the Republican majority has, in time, revealed itself simply to be a metastatic growth projection of the cancer in the White House, and hence has shirked its every constitutional responsibility to perform oversight of the executive branch and act as an independent arm of government. As has been demonstrated ad nauseam, the Democratic congress under Clinton performed far more oversight than this Congress has under Bush.

So why the absence of alternative legislation? Because Bush didn't want it. Very convenient for him that at least one of his supporters now cites that omission in support of his What-Constitution? approach to domestic surveillance.

Posted by: Moon at January 27, 2006 10:07 AM | PERMALINK

I'm really starting to wonder why I care:

Americans' view of the [surveillance] program depends in large part on whether they perceive it as a bulwark in the fight against terrorism, as Mr. Bush has sought to cast it, or as an unnecessary and unwarranted infringement on civil liberties, as critics have said.

In one striking finding, respondents overwhelmingly supported e-mail and telephone monitoring directed at "Americans that the government is suspicious of;" they overwhelmingly opposed the same kind of surveillance if it was aimed at "ordinary Americans."

I love both America and Americans, but increasingly my feeling is, Fine, they f&*king deserve it. Seriously, if they can't connect blanket reliance on "government suspicion" to justify intrusions on their privacy and violations of their Constitution, then they really don't deserve its protections. "Ever vigilant?" Pshaw! How about self-abnegatingly credulous.

Citizenship is dead. It really is.

Posted by: moon at January 27, 2006 10:25 AM | PERMALINK

As much as I'd like to say that's exactly what I meant, of course it's a permutation of what I meant. This is not simply the fault of Republicans in Congress, this is the fault of anyone in Congress who believes there ought to be more safeguards over this program yet hasn't done anything about it (like submitting legislation, which I haven't heard about from either side of the aisle). Why is it they have time for hearings into whether Bush broke the law, but no time for hearings into what the law should be? So of course I throw in the old "fix the problem, not the blame" adage, though I'm sure others at this blog would like both fixed. But it is evident as to the nature of the uproar that no one has offered a solution. I sincerely don't want this kind of information used to do anything besides what it's intended to do (prevent terrorism), so having a panel to review these things seems perfectly reasonably. If Congress meant to say "wiretap Al Queda calls but have them reviewed" instead of saying, "protect us, Mr. President, by any means necessary," then let them go on the record as saying that, instead of finding fault with someone who had initiative to do his duty, when they did not.

Posted by: Morris at January 27, 2006 10:36 AM | PERMALINK

Moon, we have a tremendous ability to believe that bad stuff isn't going to happen to us, personally. Rationalization is a powerful thing.

"Americans that the government is suspicious of;" they overwhelmingly opposed the same kind of surveillance if it was aimed at "ordinary Americans."

They assume that there is nothing they will do to move them out of the "ordinary" category and into the "suspicious" category. They are in denial that it can happen to them.

Posted by: binky at January 27, 2006 10:42 AM | PERMALINK

I think the article you referred to in your last post is bizarre in its conclusions. Basically, the poll it cites says that Americans are okay with wiretapping as long as it's only in cases where there's suspicion of terrorism, and Americans are not okay with general wiretapping for no particular reason. That's not really news. It's trying to make some great point about the nuance of the issue when the results are much more simple and clear.

Posted by: Morris at January 27, 2006 10:46 AM | PERMALINK

I agree, Morris, that in some ways the data are simple and clear, but I disagree I suspect about what they say -- I think Binky's got it nailed, which was sort of my point. People who believe the Constitution only needs to protect the "good" people (meaning them and their loved ones) neither comprehend nor deserve the protections that Constitution is designed to provide. It's no better than saying that the state bears the burden of proving guilt of a crime beyond a reasonable doubt except, you know, where the guy's guilty. Similarly, people betray an utter lack of knowledge about the principle of judicial review and separation of powers.

You write: "If Congress meant to say "wiretap Al Queda calls but have them reviewed" instead of saying, "protect us, Mr. President, by any means necessary," then let them go on the record as saying that, instead of finding fault with someone who had initiative to do his duty, when they did not."

Regarding the absence of complaint, numerous of the few Democrat senators who knew anything about the surveillance program in question filed confidential and contemporaneous letters (all they could legally do) expressing grave reservations about the program in question. The vast majority weren't consulted at all.

After five years of watching every Democrat initiative being either co-opted or squelched prior to debate, it has been made clear that the only people who can introduce legislation that will even receive a hearing let alone a fair vote are those in the majority (mind you, this from the faction that claims, a propos judicial nominees, that an "up-or-down vote" is the only fair way to conduct business in the Senate (notwithstanding the many dozens if not hundreds of Clinton's judicial nominees who were denied, by Republican parliamentary tactics, that same vote). Why would a Democrat waste his time unless he can get a Republican co-sponsor? And of course nothing interesting will get a Republican co-sponsor because of the dynamic to which I alluded above.

Finally, it's nice to see your utilizing your critical faculties in buying hook line and sinker Bush's specious claim that the very specific authorization of the use of "force" overseas in the wake of 9-11 somehow amounted to an unfettered authorization to burn the constitution, aggregate data domestically, and in general flout the principla -- separation of powers -- most fundamental to the constitutional design. And please don't tell me he wanted a more specific authorization -- currently, he's going on record as saying he neither needs nor wants congressional authorization for anything. God forbid they do anything to derail his campaign to turn this country into a monarchy.

Posted by: moon at January 27, 2006 11:08 AM | PERMALINK

I can certainly empathize with the President in terms of not wanting a more specific authorization, because if this top secret program can't be kept secret, what are the odds of these calls remaining secret when you get another court of people involved, when the leakers become that much more difficult to pinpoint. And as I've said before, I'm glad he's getting us information from people talking to people we think are terrorists, whether or not the Congress approves such an action. Because I see the potential for its abuse, I believe that the Congress should at least pass laws punishing severely any of this information being used for anything but preventing terrorism. And if they want to appoint someone to oversee and review these wiretaps who has and is capable of maintaining a top secret clearance, I understand that. But of course the question becomes who is appointed, a stooge for the President who lets him spy on anyone and everyone for whatever purpose, or a stooge for the minority party who threatens to go public every time there isn't rock solid evidence for a wiretap. This is why more hands in the pot don't necessarily cook up something better.

I do find it curious that you think people who don't believe in the 4th ammendment aren't deserving of constitutional protections afforded by the Constitution. I wonder if you think this also applies to people who want to ban handguns and ergo don't subscribe to the second ammendment, are they also not deserving of Constitutional protections? I think I understand your frustration with people who are willing to allow all wiretaps all the time, but what I think is sinister is this journalist's attempt to say essentially Americans are just too stupid to know they could be the ordinary people that are being spied on, and to say if Americans were smart enough to realize that, they'd oppose this program. These are two very separate questions about how important Americans believe their 4th ammendment rights to be during this age, and the majority clearly says that if we think someone's talking to a terrorist, we want to listen to what they have to say, even if we lose a little liberty in the process.

Also, given this poll has a margin of error of 3 points, and given the following questions were only asked of half of the people polled, so their margin of error would be more like 5 points, can we really say without a doubt that Americans are not simply evenly divided on these issues, and the difference focused on by the journalist regarding these questions actually does exist?
62. After 9/11, President Bush authorized government wiretaps on some phone calls in the
U.S. without getting court warrants, saying this was necessary in order to reduce the
threat of terrorism. Do you approve or disapprove of the President doing this?
Approve Disapprove DK/NA
1/20-25/06 53 46 1
3. After 9/11, George W. Bush authorized government wiretaps on some phone calls in the
U.S. without getting court warrants. Do you approve or disapprove of George W. Bush doing
Approve Disapprove DK/NA
1/20-25/06 46 50 3

I didn't say Democrats didn't complain, I said that's all they and Republicans investigating this (which appears to fly in the face of the Congress is backing the emperor theme I sometimes hear) are doing. I said they're not providing a solution. As to your point about Democrats being unable to do anything, this is a process that works itself out in a democracy. If people think their Senator or Congressman isn't giving Democrats a fair shake and they want to change that, they have that opportunity in a few months. But as you know and this latest poll confirms, the tendency of most people is to hate the Legislature but love their legislator. I just can't buy this learned helplessness way of looking at it, that even though they're in Congress, they won't get anything passed so there's no reason to put the effort in. They were elected and promised to put the effort in, and I'm a little surprised you'd let them off the hook for this.

Good news! Most Americans favor staying in Iraq long enough to stabilize their democracy!

Posted by: Morris at January 27, 2006 02:39 PM | PERMALINK

"And if they want to appoint someone to oversee and review these wiretaps who has and is capable of maintaining a top secret clearance, I understand that."

They already did. It's the nine-member FISA court. Apparently that didn't work out so well.

The Senate used to be "the world's greatest deliberative body." When the party in power makes blatant, affirmative moves to prevent deliberation, it's pretty hard for the folks at home to know what their senators would do given the opportunity. That's the problem.

Posted by: moon at January 27, 2006 03:46 PM | PERMALINK

Oh, and when the Republicans who claim to be intent on investigating the NSA thing actually do something that pisses off Dear Leader, I'll believe they're investigation. Until then, I'll assume they're grandstanding and have no intention of doing anything that would put them in disfavor with Turd Blossom. Five years have shown me nothing but cowardice (even to the extent that their own generations-long rampage against big government is balled up and thrown in the circular file by Bush), and I won't grant them benefit of the doubt. They have to earn it. An honest, transparent, incisive, and take-no-prisoners examination of the surveillance activities initiated by executive fiat without legal authorization will restore my faith in the Senate. But I won't hold my breath.

And as for people who'd so easily give up their Fourth Amendment rights, I didn't say they shouldn't be protected, I said they didn't deserve to be protected. There's a world of difference between the two.

Posted by: moon at January 27, 2006 03:49 PM | PERMALINK
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