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January 22, 2006 - Things Have Changed













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Tuesday, January 17, 2006, was Benjamin Franklin's birthday. He's would be three hundred years old, but he isn't. He's dead. (Still living, and sharing the same birthday? Betty White is 84, Eartha Kitt is 79, James Earl Jones is 75, and Muhammad Ali is 64.) And on January 17, 1961, in his farewell address, President Eisenhower warned us about the rise of "the military-industrial complex." That's all very curious.

The Ben Franklin quote seen most often these days is this one - "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." (Historical Review of Pennsylvania, 1759) - often cited in relation to the issue still dominating the national discussion, the president ordering the National Security Agency (NSA) to ignore the law and scan our email and telephone conversations, seeking out clues as to who may be plotting terrorist harm, without probable cause or any warrant or oversight, as required.

The issues are clear. The president claims that, as commander-in-chief in a defacto war (no actual declaration of war, just a congressional resolution to do something about a problem), the constitution implicitly gives him the "plenary power" to disregard any law that interferes with his duties as commander-in-chief. Thus, when he signed the McCain Amendment prohibiting torture and degradation of prisoners we hold, he appended a "signing statement" that said he would comply with this law, but reserved the right, under Article II of the Constitution, to exercise his "plenary power" and order torture and degradation and whatever, if he decided he should. Any treaties we've signed and the congress ratified, making them law, can be broken and he would be immune from any punishment. On the same basis, he claims the right to declare any citizen an "enemy combatant" and hold them without charges, without informing anyone about the detention, with allowing them to know why they are being held, to deny them access to legal council or, in fact, any contact with anyone - they have no right to know why they are being held and they may be held for as long as the president wishes, and they have no way to challenge the decision that landed them in this limbo.

That the constitution implicitly gives him the "plenary power" to disregard any law that interferes with his duties as commander-in-chief does trouble some people. Since this power is not explicit, some argue the president is not above the law. The president's legal team argues that's what the constitution really means. Others say no, it doesn't mean that and it doesn't say that. The president's team says it does. So it goes back and forth. By the way, "plenary" comes from Middle English, by way of Late Latin plenarius, from Latin plenus (full) - it means complete in every respect, absolute, unqualified. It's a useful word.

It should be noted that the secondary argument, that the president was authorized to disregard any law that got in his way by the congressional "go invade Afghanistan and get the bad guys" resolution, is fading. Too many who voted are saying they just never said that at all. It should be noted, also, as Christopher Lee in the Washington Post pointed out - "As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch." He thought "signing statements" would restore the balance of power and let the president have his rightful power - the congress says it's law, and the president says that's nice, but does what he does.

And too there was this from Ron Hutcheson and James Kuhnhenn of Knight-Ridder –

 

President Bush agreed with great fanfare last month to accept a ban on torture, but he later quietly reserved the right to ignore it, even as he signed it into law.

Acting from the seclusion of his Texas ranch at the start of New Year's weekend, Bush said he would interpret the new law in keeping with his expansive view of presidential power. He did it by issuing a bill-signing statement - a little-noticed device that has become a favorite tool of presidential power in the Bush White House.

In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues.

 

There's much more there, like the 2003 Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds - Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement. Cool. But that's all detail. Alito will be confirmed. If any of this "signing statement" stuff ever goes up to the Supreme Court, we know what will happen. (You thought the confirmation hearings were about Rove v. Wade?)

All that aside, civil libertarians and conservative no-preface libertarians, have a problem with this NSA program, outside the law, that the president says he will continue and no one can stop him from continuing, as he's just doing his job.

Others don't have a problem. Ben Franklin may be dead, but these days we have Republican Senator Trent Lott from Mississippi, saying this - "I don't agree with the libertarians. I want my security first. I'll deal with all the details after that."

Take THAT, Gentle Ben! And Lott is also sorry about what he said at Strom Thurmond's birthday party. And Tuesday, January 17th he announced he'll run for another term.

Be that as it may, the big stories Tuesday were from the New York Times, here - a number of folks at the FBI saying the NSA program generated thousand and thousands of leads for them to track down (the NSA being the "big ear" that listens to all, and the FBI the "boots on the ground" agency that actually has to investigate). The leads were pretty much all useless - the phone number of someone who talked to someone who talked to someone, who knew someone whose third cousin had been to Paris once –

 

FBI officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of phone and Internet traffic. Some FBI officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mr. Mueller asked senior administration officials about "whether the program had a proper legal foundation," but deferred to Justice Department legal opinions, the official said.

President Bush has characterized the eavesdropping program as a "vital tool" against terrorism; Vice President Dick Cheney has said it has saved "thousands of lives."

 

The president said this was limited and focused - listening in on folks who talked to or emailed with the bad guys overseas, and only them. No need to worry.

Perhaps he was misinformed. His people really ought to keep him in the loop. And no doubt he will call for an investigation into just which disgruntled and overworked FBI people talked to the Times and let the cat out of the bag.

Yes, the 1978 FISA law - the Foreign Intelligence Surveillance Act - amended in 1995, was enacted to prevent "big brother" fishing expeditions like this. Yes, he ignored that law, bypassing any stuff about warrants and oversight and probably cause. But he was just doing his job, and you can't be too careful. And too this does smack of a turf war - the FBI ragging on the NSA for those clowns sending them on a thousand wild goose chases a week, pulling them away from more important matters. The Times notes that in FBI bureau field offices the agents would joke that a new bunch of NSA tips meant more "calls to Pizza Hut." Well, what if someone is building a dirty bomb in the back room at the local Pizza Hut? What if someone knew someone who knew someone who wrote an email to a friend in Europe containing the words "dirty" and "bomb" - and the first person ordered a large with pepperoni? You never know.

Someone at the FBI thought this NSA program was possibly illegal (depends on your view of the president's "plenary powers"), but clearly useless, a ridiculous waste of time and money. These FBI folks were just fed up - the high school history teacher whose cousin knew someone who didn't like Bush just ordered a pizza, and after the field interview, turned out to be just hungry and near his phone. Actually, legal and constitutional issues aside, it's kind of funny. Your tax dollars at work.

The other big story was the lawsuits - "Federal lawsuits were filed Tuesday seeking to halt President Bush's domestic eavesdropping program, calling it an 'illegal and unconstitutional program' of electronic eavesdropping on American citizens."

One of these was filed in New York by the Center for Constitutional Rights and the other in Detroit by the American Civil Liberties Union. They both claim you just cannot bypass the FISA law, and do all that electronic monitoring without court approval. The plaintiffs want to know if they were spied on, illegally. If so, they want all records erased and expunged and removed and all that. It's been done before.

The Center for Constitutional Rights is suing Bush, the head of the National Security Agency and the heads of the other major security agencies. Cool, but they represent hundreds of those held as enemy combatants down in Cuba - they say they now have to audit old communications to determine whether ''anything was disclosed that might undermine our representation of our clients.''

Fair enough. And the Detroit ACLU suit names the National Security Agency and its director - the claim there being that this program "impaired plaintiffs' ability to gather information from sources abroad as they try to locate witnesses, represent clients, do research or engage in advocacy."

You're still allowed to engage in advocacy? Maybe these folks just don't know the limits on that. In this suit we're talking the Council on American-Islamic Relations, Greenpeace and a bunch of journalists, scholars, attorneys - and national nonprofit organizations. These folks communicate with people in the Middle East, in Asia and all over.

Should attorneys be monitored? Depends. One of them, Josh Dratel, says a bit about how attorneys have traditionally relied on privacy to gather facts to ensure fair trials - ''That comfort level no longer exists, and it has sent a chill through the legal community." Maybe he shouldn't defend people the president knows are, a priori, guilty and out to kill us all? That might be the defense.

On the side of social scientists, journalists and researchers - people who report on political developments or human rights abuses - one of the plaintiffs is Larry Diamond at Stanford. He says this will isolate them all - ''One reason why the United States is held in such low esteem ... today is because we are seen as hypocritical. We vow to promote individual freedom as the central purpose of foreign policy, and then we violate individual freedom with this secret warrantless surveillance.'' Well, perhaps one defense is these things shouldn't be reported? Anything is possible.

And one of the ACLU plaintiffs, is, of all people, the always acerbic and perpetually grumpy Christopher Hitchens, hyper-intellectual and pro-Bush and pro-war. What's up with that?

Hitchens explains himself here - he sees this as a test case –

 

Although I am named in this suit in my own behalf, I am motivated to join it by concerns well beyond my own. I have been frankly appalled by the discrepant and contradictory positions taken by the Administration in this matter. First, the entire existence of the NSA's monitoring was a secret, and its very disclosure denounced as a threat to national security.

Then it was argued that Congress had already implicitly granted the power to conduct warrantless surveillance on the territory of the United States, which seemed to make the reason for the original secrecy more rather than less mysterious. (I think we may take it for granted that our deadly enemies understand that their communications may be intercepted.)

It now appears that Congress may have granted this authority, but without quite knowing that it had, and certainly without knowing the extent of it.

This makes it critically important that we establish an understood line, and test the cases in which it may or may not be crossed.

 

What follows is a discussion of the NSA using law enforcement agencies to track members of a pacifist organization in Baltimore, previously covered in these pages here - he calls this "an appalling abuse of state power and an unjustified invasion of privacy" and says such stuff is not covered by any "definition of 'national security' however expansive." And he says that was "a stupid diversion of scarce resources from the real target." And he thinks there's entirely too much of such stuff.

But here's the core –

 

We are, in essence, being asked to trust the state to know best. What reason do we have for such confidence? The agencies entrusted with our protection have repeatedly been shown, before and after the fall of 2001, to be conspicuous for their incompetence and venality. No serious reform of these institutions has been undertaken or even proposed: Mr George Tenet (whose underlings have generated leaks designed to sabotage the Administration's own policy of regime-change in Iraq, and whose immense and unconstitutionally secret budget could not finance the infiltration of a group which John Walker Lindh could join with ease) was awarded a Presidential Medal of Freedom.

I believe the President when he says that this will be a very long war, and insofar as a mere civilian may say so, I consider myself enlisted in it. But this consideration in itself makes it imperative that we not take panic or emergency measures in the short term, and then permit them to become institutionalized. I need hardly add that wire-tapping is only one of the many areas in which this holds true.

 

Ah, don't panic. And there's this warning –

 

The better the ostensible justification for an infringement upon domestic liberty, the more suspicious one ought to be of it. We are hardly likely to be told that the government would feel less encumbered if it could dispense with the Bill of Rights. But a power or a right, once relinquished to one administration for one reason, will unfailingly be exploited by successor administrations, for quite other reasons. It is therefore of the first importance that we demarcate, clearly and immediately, the areas in which our government may or may not treat us as potential enemies.

 

Not a bad idea, that. But remember what Ben Franklin also said - "A countryman between two lawyers is like a fish between two cats." This will be a catfight.

But we're all enemies, until the president approves of us, and gives us each a sarcastic nickname.

Of course, the Democrats and others unhappy with Bush's new theory of the presidency, will get no traction with any of this. The vast majority of Americans, with little patience for legal and constitutional minutia, just know what they've been told - there are millions of swarthy folks with an odd religion out there who want to kill us all.

So the president breaks the law? He's just trying to keep us safe, and the Democrats and lefties are not. Rights and privacy don't matter if you're dead. You hear it all the time, like Chris Matthews on MSNBC here, interviewing Russell Tice, a former NSA guy who said he is one of the sources for the December 16 New York Times that broke this whole thing open –

 

MATTHEWS: We're under attack on 9-11. A couple of days after that, if I were president of the United States and somebody said we had the ability to check on all the conversations going on between here and Hamburg, Germany, where all the Al Qaeda people are, or somewhere in Saudi [Arabia], where they came from and their parents are, and we could mine some of that information by just looking for some key words like "World Trade Center" or "Pentagon," I'd do it.

TICE: Well, you'd be breaking the law.

MATTHEWS: Yeah. Well, maybe that's part of the job.

 

He thinks he speaks for us all. Well, he speaks for himself, and MSNBC and its parents Microsoft and NBC, and NBC's parent corporation, General Electric. But one suspects most people feel this way. If you have nothing to hide, what's the big deal? (Note, Microsoft is pulling out of the news business and slowly ending its arrangement with NBC, so count them out.)

Well, someone thinks it's a big deal. That would be Al Gore, who Monday the 16th addressed what seem to be the core issue, on stage with Bob Barr, the man who led the impeachment of Gore's boss, Bill Clinton. Now they're together - the civil libertarian and conservative no-preface libertarian.

That speech is here

 

I'd like to start by saying that Congressman Bob Barr and I have disagreed many times over the years. But we have joined together today with thousands of our fellow citizens, Democrats and Republicans alike, to express our shared concern that America's Constitution is in grave danger.

In spite of our differences over ideology and politics, we are in strong agreement that the American values we hold most dear have been placed at serious risk by the unprecedented claims of the administration to a truly breathtaking expansion of executive power.

As we begin this new year, the executive branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses. It is imperative that respect for the rule of law be restored in our country.

 

And he's off and running –

 

The president and I agree on one thing: The threat from terrorism is all too real.

There is simply no question that we continue to face new challenges in the wake of the attacks on September 11th and we must be ever vigilant in protecting our citizens from harm.

Where we disagree is on the proposition that we have to break the law or sacrifice our system of government in order to protect Americans from terrorism when, in fact, doing so would make us weaker and more vulnerable.

... The president claims that he can imprison that American citizen - any American citizen he chooses - indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.

No such right exists in the America that you and I know and love. It is foreign to our Constitution.

... At the same time, the executive branch has also claimed a previously unrecognized authority to mistreat prisoners in its custody in ways that plainly constitute torture and have plainly constituted torture -- in a widespread pattern that has been extensively documented in U.S. facilities located in several countries around the world.

Over one hundred of these captives have reportedly died while being tortured by executive branch interrogators. Many more have been broken and humiliated. And, in the notorious Abu Ghraib prison, investigators who documented the pattern of torture estimated that more than 90 percent of the victims were completely innocent of any criminal charges whatsoever.

This is a shameful exercise of power that overturns a set of principles that you're nation has observed since General George Washington first enunciated them during our Revolutionary War.

... The president has also claimed that he has the authority to kidnap individuals on the streets of foreign cities and deliver them for imprisonment and interrogation on our behalf by autocratic regimes and nations that are infamous for the cruelty of their techniques for torture.

Some of our traditional allies have been deeply shocked by these new and uncharacteristic patterns on the part of America.

The president has also claimed that he has the authority to kidnap individuals on the streets of foreign cities and deliver them for imprisonment and interrogation on our behalf by autocratic regimes and nations that are infamous for the cruelty of their techniques for torture.

Some of our traditional allies have been deeply shocked by these new and uncharacteristic patterns on the part of America.

 

And so on. He suggests its time to stop this nonsense. Time for an independent council to investigate all this, not one selected by the president.

The Republicans are delighted - the president's press secretary, Scott McClelland, saying if Gore is the new voice of the Democratic Party, then they all welcome that. He knows that people want a strong daddy who will protect them, and maybe do nasty things to the bad guys, and don't want a mommy scold - and folks just don't like details. Gore buried the opposition.

Of course there was a lot of back and forth. Gore was a hypocrite, the Clinton administration did the same thing. The facts show otherwise (see this for details).

Here's an interesting comment from Josh Marshall –

 

These really aren't normal political times we're living in. And I think Gore is right to say that we're in the midst of a constitutional crisis, even though too few people are taking notice of it. Our constitution becomes the proverbial falling tree.

The point Gore makes in his speech that I think is most key is the connection between authoritarianism, official secrecy and incompetence.

The president's critics are always accusing him of law-breaking or unconstitutional acts and then also berating the incompetence of his governance. And it's often treated as, well ... he's power-hungry and incompetent to boot! Imagine that! The point though is that they are directly connected. Authoritarianism and secrecy breed incompetence; the two feed on each other. It's a vicious cycle. Governments with authoritarian tendencies point to what is in fact their own incompetence as the rationale for giving them yet more power. Katrina was a good example of this.

The basic structure of our Republic really is in danger from a president who militantly insists that he is above the law.

 

That's not the mainstream view. Chris Matthews has that in hand. What's the problem?

Only us old folks see a problem.  What did Ben Franklin say?  "I am in the prime of senility."

That must be it.
 
Happy Birthday, Ben. You wouldn't recognize the place these days.































 
 
 
 

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
 
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