One Branch Is So Much More Efficient Than Three

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Over at National Review Online, James Robbins argues that the National Security Agency's warrantless eavesdropping on the international communications of U.S. citizens and residents is authorized by the Foreign Intelligence Surveillance Act, which seems to require warrants in this sort of situation. If I'm understanding him correctly, the thrust of his argument is that FISA allows an exception to the warrant requirement for communications "exclusively between or among foreign powers," which include international terrorist organizations. Although the law also stipulates that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party," Robbins says people with ties to terrorist groups do not count because they are "agents of a foreign power."

It seems to me this exception, as interpreted by Robbins, swallows the whole law. If the communications of anyone with suspected ties to terrorist groups or other foreign powers can be monitored without a warrant, what is the point of the procedures laid out in the rest of the statute for getting permission from the Foreign Intelligence Surveillance Court?

The Bush administration, for its part, does not seem to be arguing that the eavesdropping was authorized by FISA itself. Instead it says Congress authorized the wiretaps when it gave the president permission to use "all necessary and appropriate force" against the nations, groups, and individuals responsible for the September 11 attacks. It's doubtful that's what members of Congress thought they were doing. Sen. Russell Feingold (D-Wis.), who voted for the resolution, says "nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror…that this was an authorization to allow a wiretapping against the law of the United States."

But according to the Bush administration, it does not really matter what Congress intended, because the president's inherent powers as commander in chief of the armed forces include the authority to override FISA and any other statute that purports to prevent the NSA from doing what it did (and continues to do). This is the argument that seems most consistent with Bush's M.O. In areas such as military tribunals, detention of "enemy combatants," and national security letters, he has sought to cut out the legislative and judicial branches from prosecution of a never-ending war with targets he himself defines and tactics he alone approves. Those who have complete confidence in his good faith and good judgment may not have a problem with this unilateral approach, but they should, unless they think their guys are going to be running the show forever.

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  1. 1) Are members of a non-state terrorist group really agents of a “foreign power”?

    2) If we’re going to be loose in our definition of a “foreign power”, what if two Canadians are in Washington (the state, not the city), as part of a gang that smuggles pot into the US from British Columbia? Does the government have the authority to tap their phones without a warrant?

    3) What if a US citizen is just suspected of aiding these Canuck pot smugglers? Is he acting as an agent of a foreign power? Can his phone be tapped without a warrant?

    4) Is mere suspicion of being an agent of a “foreign power” sufficient to free the government from its Constitutional limitations?

  2. 5) Who else thinks that my drug dealing examples are particularly appropriate since the real purpose of these new powers is to prosecute the drug war?

  3. Robbins says, people with ties to terrorist groups do not count because they are “agents of a foreign power.”

    Slidin’ on down the slope, this is why I like to poke any “objectively pro-” whatever argument in the eye.

    This is the argument that seems most consistent with Bush’s M.O. In areas such as military tribunals, detention of “enemy combatants,” and national security letters, he has sought to cut out the legislative and judicial branches from prosecution of a never-ending war with targets he himself defines and tactics he alone approves.

    I think there’s a danger of projecting strategic logic onto the Bush Administration. We could explain the Bush Administration’s actions in these cases just as well by assuming that it’s utterly incompetent.

  4. The logical extension of Bush’s argument is that the president can do whatever he damn well chooses. Nixon redux. Ultimately, any sentient being can do whatever he, she or it can get away with doing, but hopefully we won’t let Bush get away either with doing this himself or with setting the legal precedent that would allow his successors to.

  5. >the president’s inherent powers as commander in chief of the armed forces include the authority to override FISA and any other statute that purports to prevent the NSA from doing what it did

    I look forward to seeing how that goes down at the impeachment, as well as the throwing-his-civil-liberties-challenged-ass-in-fucking-jail trial

  6. …unless they think their guys are going to be running the show forever.

    They do.

  7. I think there’s a danger of projecting strategic logic onto the Bush Administration. We could explain the Bush Administration’s actions in these cases just as well by assuming that it’s utterly incompetent.

    One hallmark of incompetence is the assumption that everything would be fine if other people just got out of the way and gave the incompetent person all the authority and resources that he thinks he needs. “It’s not my fault that I can’t do this, they tied my hands! Just untie me and I’ll fix everything!”

  8. I’ve only got a second, but as for thoreau’s #3, Da Judge Andrew Napolitano today on Fox News dropped some Abe Lincoln knowledge on the live studio audience. He says Abe Lincoln asked, “If you call a tail a leg, how many legs does a cat have” and people respond “Five” and (so it goes) Lincoln responded, “No, just because you call a tail a leg doesn’t make it a leg. It’s still got four legs.”

    Same with suspects, same with Jose Padilla, same with steamrolling the judicial branch and Congress (I’m STILL dying to hear who in Congress was informed of this program).

    I can’t believe I agreed with Barbara Boxer in considering this an impeachable offense, but it sure as shit looks impeachable.

    For those of you curious, here is the legislation that Bush invoked – the Afghanistan war resolution.

    And I’ll say I’m leaning heavily toward “Yes” on #5, though I think they’ll try and round up some terrorists while they round up drug users and dealers.

  9. In fact, it’s worse than that. They think anything their side does, is sanctioned by Gawd almighty. If ever the other team gets back in power, they will scream the loudest over how awful abuse the office is. Their hypocrisy not only will fail to occur to them, it will be unfathomable.

  10. The question that I am dying to hear asked to President Bush is what isn’t he allowed to authorize using his ‘inherent powers as Commander-in-Chief? In his America, what lies outside of his authority?

  11. the “war on terror” is over. we lost.

  12. The drug-dealing example is particularly appropriate because the War on Terror isn’t any more winnable than the War on Drugs. If anyone believes there is anything we can do to completely eliminate terrorism in the foreseeable future, they are truly deluded.

    In that sense the “in time of war” mantra that Bush & Co. keep chanting is so irritating and frustrating. How long will they use that to justify doing whatever they want?

  13. In that sense the “in time of war” mantra that Bush & Co. keep chanting is so irritating and frustrating. How long will they use that to justify doing whatever they want?

    Until he wins and Congress is dissolved, the Constitution has the same status as the Magna Carta and the last of the Jedi are destroyed.

  14. “But according to the Bush administration, it does not really matter what Congress intended, because the president’s inherent powers as commander in chief of the armed forces include the authority to override FISA and any other statute that purports to prevent the NSA from doing what it did (and continues to do).”

    I guess those fancy lawyers in the Office of Legal Counsel never got around to reading Youngstown Sheet & Tube Co. v. Sawyer.

  15. What we need is an enumerated list of these inherent powers. An official description of what the Executive Branch can do, complete with a list of limitations on those powers.

    Maybe Congress and the state legislatures could draft one.

  16. “we will do whatever it takes to make sure that we’re safe internally”

    People should have taken him at his word.

  17. I’m not a lawyer, and I’m skimming here, but, it seems that, although it took years for Interstate Commerce to mean ANY commerce, Bush’s War on Terror after 9-11 has almost instantly shredded any Constitutional assumption of privacy.
    (And yet, privacy is the basis of Roe vs. Wade?)

  18. What we need is an enumerated list of these inherent powers. An official description of what the Executive Branch can do, complete with a list of limitations on those powers.

    From Article II, Section 2 of the Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;”

    Now, from Amendment X of the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Sounds clear enough to me. I don’t see anything about wiretapping, domestic espionage, or this being a special circumstance or different situation. And until we specifically give him those powers, he doesn’t have them to interpret any way he likes.

  19. “What we need is an enumerated list of these inherent powers.”

    I think they’re listed in the same place as all those rights in the Constitution’s penumbra of emanations.

  20. Nixon redux.

    fyodor, I think that you nailed it in those two words. From the evisceration of the FOIA to torture to illegal wiretapping, the Wormtails of the Nixon administration appear to have resurrected their long dead old boss.

  21. unless they think their guys are going to be running the show forever.

    Diebold.

  22. Those who have complete confidence in his good faith and good judgment may not have a problem with this unilateral approach, but they should, unless they think their guys are going to be running the show forever.

    Whether it’s their guys or not, isn’t giving someone – anyone – a blank check an invitation to abuse?

    Haven’t these guys ever actually studied the history (the history they seem to be compelled to rewrite)?

    Didn’t anyone ever hear of absolute power corrupting absolutely?

    For 20-30 years, the conservatives have continuously out forth the notion that government is inately(sp?) incompetent and/or corrupt and should therefore by reduced in both size and impact.

    Why is 9/11 suddenly a good reason to chuck that point of view where government (in the form of presidential power) is concerned?

    9/11 – as an excuse for anything – is starting to wear thin and should signify to the listener that a cynical rationale for political gain afoot.

  23. Where’s the call for impeachment over this? Clinton got much worse for much less…

  24. But according to the Bush administration, it does not really matter what Congress intended, because the president’s inherent powers as commander in chief of the armed forces include the authority to override FISA and any other statute that purports to prevent the NSA from doing what it did

    I’m sorry, I seem to have woken up in Cold War era East Germany. I’ll just be getting back to America then…

  25. But, just out of curiosity, where exactly are John, RC Dean and all the other people who have been arguing that the present Administration’s actions aren’t all that bad? Will they play this off as something that everyone does too?

  26. Adam: You forget, they think that drug dealers _ARE_ terrorists.

    Thoreau: We’ve got such a list; it’s called the Constitution ™.

    Ken Schultz: They don’t think they’re getting it wrong, because their man in office believes in Jesus, and is guided unerringly by His Almighty Presence. They don’t see it as failure, they see it as a success not popularly understood.

    Warren: Exactly: a faith based government program can only be destroyed by calling it heresy, not by attacking its merits.

    All: importants comparison between WoD and War on Terror: both invoke the doctrine of War (i.e., win or die) rather than the profoundly more sane doctrine of Criminal Justice: hear him, THEN hang him. Result: anything that I choose to do to you is assumed to be good for us all: no critical thinking allowed!

  27. Jacob, to me it’s pretty simple–a lot of people in this country, including the NROers, want strongman rule in this country. And they are convinced that if it comes about on their watch, they can control it (and us).

    No, there is no need to call Mr. Godwin. Strongman does not equal the “H” word, not even close, although the “f” word is at least in the neighborhood. Think of a succession of elected Francos if that works for you.

    I am convinced that THEY are convinced that through eternal bogey-manism, super-patriotism, co-opting of the dominant religious dogma, gerrymandering, suspect election laws and practices, and the seeming permanent ineptitude of their nominal opponents, they can keep the their hands on the levers of power more or less indefinitely.

    Part of this is just the eternal love of power for power’s sake, of course. But, mixed into that, there is also a geuine element of fear and desperation–they really DO think secular American society has spun out of control, to the point of being dangerously vulnerable. While this was bad enough for them during the relatively innocuous 90s, now they perceive a determined enemy that worships a fierce, warrior god–and a flaccid, disengaged America, in their view, is just too weak to stand up to that forever. So, in a manner somewhat reminiscent of the task of Dostoevsky?s Grand Inquisitor, they take the dreadful burden on themselves of knifing what remains of the Old Republic, perhaps wistfully as they do so, but convinced empire–and a de facto emperor–are the only way in which national salvation lies. Although they are nominally “conservatives”, in reality they have no faith whatsoever that the real traditional values of America (the market, individualism, free speech, etc.) can see her through any longer. So, they are perfectly willing to gamble on authoritarianism, especially since they believed they have the deck well stacked in advance.

  28. thoreau, how sad does it make you that several posters have responded seriously to your “enumeration” request?

  29. cjp-

    It’s understandable that sarcasm might be missed.

    It’s sad that they document which they cited no longer has any real meaning in DC.

  30. Jacob Sullim,

    All you need do is read the briefs in the Padilla and Hamdi cases to see this argument used in a more thoroughgoing manner.

    cdunlea,

    Bush is claiming certain inherent war and/or foreign polucy powers; the Court has stated that the President does have some inherent foreign policy powers. Its not like the Bush administration came out of left field with these ideas, we’ve been dealing with them since the founding of the Republic.

  31. If Bush’s authorization turns out to be a criminal offense, does that attach conspiracy charges to everyone else who was in on it?

    i.e. the Vice President, the Attorney General, most of the NSA, the FISA court – including judge Colleen Collar-Kotelly – members of congress from both parties who were briefed repeatedly?

    There’s a big enough conspiracy to go RICO on the most of the Federal Government.

  32. National Review should just re-define “conservatism” as “Republican presidents can do no wrong.”

    I just checked their site; in addition to the typical bullshit about how everything Bush is doing is just fine, there’s also much talk about the “defeaticrats.” Brilliant fucking discourse.

    Bush has said that whoever leaked this story committed “a shameful act.”

  33. Indeed, Cato does disclose the source of its support…

    Cato Sponsors

  34. Sorry, wrong thread…

  35. I am convinced that THEY are convinced that through eternal bogey-manism, super-patriotism, co-opting of the dominant religious dogma, gerrymandering, suspect election laws and practices, and the seeming permanent ineptitude of their nominal opponents, they can keep the their hands on the levers of power more or less indefinitely.

    I more or less agree with you, Henry. I doubt they’ll abolish elections, or stuff ballot boxes on a massive scale. But with enough fear-mongering and wedge issues, some selective election practices that aren’t quite fraud but sure smell bad, and appropriate gaming of the system, they can keep themselves in power unless the Dems drastically improve.

    joe can point out that Kerry only lost by a few percent against a wartime President, but (1) the problem is bigger than Kerry, (2) a loss is a loss and (3) as the Economist has noted, self-described conservatives outnumber self-described liberals. As long as that holds, the GOP only needs to rally the base and peel off close to half of the moderates. They may only win by a few percent, but they still win.

    And if they spend enough time in power, filling the ranks of the bureaucracy with their people, filling the judicial bench with their people, and using the power of the majority to funnel pork to their districts and keep their incumbents in favor, they can even sustain a loss in a Presidential election with iminimal damage to their structures.

    We won’t turn into anything Godwinesque, but we might turn into something that comes closer to Putin’s Russia or PRI Mexico.

    For the record, I’m not saying that rule by Democrats would be great. It wouldn’t be. But I fear that we may turn into a de facto single party state with a very heavy-handed police apparatus. And insane fiscal policy.

  36. thoreau has morphed into gaius marius.

  37. Then again, that’s not surprising given their patnernalist, tod-down, hierarchal, etc. Catholic backgrounds that only allows them to think in paternalist, top-down, hierarchal, etc. ways.

  38. Back on the incompetence theme, it was bad enough to handle intelligence, torture policy, etc. in such way that it would undermine support for the Iraq War, but doing things like this, circumventing the legal process for no apparent reason, may undermine support for the War on Terror. …That’s part of what I’m talking about when I talk about incompetence.

  39. I doubt they’ll abolish elections, or stuff ballot boxes on a massive scale

    Between restructuring Congressional districts to favor incumbents and being buddy-buddy with Diebold, they don’t need to stuff ballot boxes, Thoreau. This is the party that brought us touch-screen voting with no paper trail, remember.

  40. but doing things like this, circumventing the legal process for no apparent reason, may undermine support for the War on Terror. …That’s part of what I’m talking about when I talk about incompetence.

    Ken, I see what you’re getting at, but I don’t think “incompetence” is quite the term. Is there one English word which means “pathological indifference to the opinions of others”?

  41. “I’m not a lawyer, and I’m skimming here, but, it seems that, although it took years for Interstate Commerce to mean ANY commerce, Bush’s War on Terror after 9-11 has almost instantly shredded any Constitutional assumption of privacy.

    “(And yet, privacy is the basis of Roe vs. Wade?)”

    Both Roe v. Wade and this latest abortion out of the Bush Administration are examples of the theory of jurisprudence that says the Constitution must mean what we want it to mean, and that if the words of the Constitution don’t support us, we’ll just make shit up.

  42. Jennifer,

    Between restructuring Congressional districts to favor incumbents…

    Like that never happened in American politics before the current ascendancy of the Republicans.

    As to Diebold, where is the, you know, evidence?

    …but doing things like this, circumventing the legal process for no apparent reason, may undermine support for the War on Terror.

    I doubt that it will since the WoT doesn’t really require much public support in the first place (since most of what is done regarding it is done outside the bounds of political discourse). This will most likely turn out to be a tempest in a teapot.

  43. Seamus,

    You tell us exactly what the war powers of the President is then. This ought to be interesting.

    ________________

    Honestly, I find the certitude of untutored and ignorant folks like Jennifer and thoreau to be more surprising than anything.

  44. “pathological indifference to the opinions of others”

    I believe the term you’re looking for is “sociopathology.”

  45. I believe the term you’re looking for is “sociopathology.”

    I’d actually thought of that, but. . . . I don’t know, it just seems too pat, somehow. Occam’s Razor be damned–I can’t trust any simple one-word solution to this huge clusterfuck, and “The administration is run by sociopaths” is just too neat to be satisfying, somehow. Even if that’s true, there has to be more to it than that.

    After seeing that stupid speech of his last night, I think he truly believes what he’s saying. He’s certainly telling untruths, but he’s probably not lying.

  46. “pathological indifference to the opinions of others”

    How about hubris?

    From Wikipedia:

    Hubris or hybris (Greek h?bris) referred in Ancient Greece to exaggerated pride or self-confidence often resulting in fatal retribution. According to its modern definition, it is a reckless disregard for the personal space of other people coupled with lack of control over one’s own impulses.
    Modern negative consequences of actions stemming from hubris appear to be associated with a lack of knowledge, interest in, and exploration of history, combined with overconfidence and a lack of humility.

    Haven’t seen the “fatal retribution” part yet, though.

  47. Inept sociopathology? Or perhaps megalomania? I actually tend to think that the latter works better for Bush himself, since, as you say, he doesn’t seem to think any of the things he says are lies.

    I agree that one word will never work for the entire movement, though. After all, every player is different.

  48. Jennifer’s way of dealing with anyone she disagrees with is to claim that they have some sort of mental dysfunction instead of actually addressing their arguments. She’s our resident flaky Troi.

    taiko,

    Well, hubris is a common attribute of all second term Presidencies it seems.

  49. Hubris combined with megalomania and sociopathy! By Jove, I think you boys have got it.

  50. Dammit, I knew this would happen. That “Mr. Garrison” was me, forgetting to change back from a joke post in another thread.

    Merry fucking Christmas.

  51. How exactly does one distinguish the groupthink, hubris, etc. of this Presidency from that of other Presidencies? It seems to me that people like Jennifer are trying to specially vilify the Bush Presidency, but I see very little difference between its actions and those of FDR in WWII or Wilson in WWI. Or hell, Adams in the 1790s.

  52. “You tell us exactly what the war powers of the President is then. This ought to be interesting.”

    Well, how about what the Constitution says: to be the commander-in-chief of the armed forces? That means commanding the forces that in the chain of (wait for it) command. It doesn’t mean the power to legislate with respect to the rest of us. Much less does it mean that the President has the power to authorize those in that chain of command to commit what would otherwise be a violation of the law.

  53. Hakluyt,

    FDR, Wilson and Adams are dead, so the most we can do is piss on their graves. Bush’s hubris is different in that it can be curtailed right now by impeaching him and then throwing him in jail.

  54. I’m thinking more about their rather strained use of the term “agent of a foreign power.” If non-state terrorist groups count as foreign powers, what about foreign corporations?

    Say that a US-based employee of a foreign corporation is suspected of fraud or embezzlement or some other crime related to his job. Could the FBI say that he is an agent of a “foreign power” and conduct searches and wiretaps without a court order?

    This may sound ridiculous, but so is saying that suspected members of terrorist groups are agents of foreign powers.

  55. “It seems to me that people like Jennifer are trying to specially vilify the Bush Presidency, but I see very little difference between its actions and those of FDR in WWII or Wilson in WWI. Or hell, Adams in the 1790s.”

    FDR and Wilson, yes. But if Adams tried to pull this kind of shit, he’d have been impeached quicker than you could say boo. People in his day were in the habit of reading the Constitution. (The Supreme Court’s Hamdi decisions contains some instructive reading in its citations of judicial decisions from the War of 1812. Apparently folks in that day took seriously the idea of rule of law, and didn’t believe in giving a carte blanche to the President to do whatever the frig he pleased. Of course, all that went by the board in the Civil War, though thankfully the Supreme Court tried to pull in the reins a bit in Ex parte Milligan. Not that Bush’s legal advisers have read it.)

  56. I’m thinking more about their rather strained use of the term “agent of a foreign power.” If non-state terrorist groups count as foreign powers, what about foreign corporations? Say that a US-based employee of a foreign corporation is suspected of fraud or embezzlement or some other crime related to his job. Could the FBI say that he is an agent of a “foreign power” and conduct searches and wiretaps without a court order?

    What also worries me is the vague way they talk about people with “links” to terrorist or other criminal groups. Agents and links are so vague that between them, they probably cover the majority of people in America.

    I’m just picturing the Feds playing an absurdly high-stakes game of “Six Degrees of Separation”, only with people’s freedoms at stake.

  57. CTD,

    The probability of Bush being impeached and then losing a Senate trial are quite low. To throw him in jail you’d have to have actual trial in the courts, which is an even less likely scenario.

    Seamus,

    You are of course ignoring another very important statement in Article II:

    The executive Power shall be vested in a President of the United States of America.

    That means commanding the forces that in the chain of (wait for it) command.

    That’s one of the things that it means.

    The founders were pretty clear in the convention that that the President has some serious independent national security powers, including the power to repel attacks (which he doesn’t have to consult the Congress on).

    The real issue is where the national security powers of the Congress and the Presidency meet and how much they overlap. To be blunt, Bush isn’t remotely outside the bounds assumed by many Presidents, court decisions, legal scholars, etc. re: the boundary of the President’s national security powers.

    Much less does it mean that the President has the power to authorize those in that chain of command to commit what would otherwise be a violation of the law.

    For sake of argument, if the law is an unconstitutional constraint on the power of the President then it isn’t a violation of the law. Assuming out of hand that a particular vision of what the Congress has done is the proper constitutional vision seems a little premature.

  58. thoreau,

    Here’s a clue (you need a few): read FISA and its PATRIOT ACT amendments.

    seamus,

    But if Adams tried to pull this kind of shit, he’d have been impeached quicker than you could say boo.

    Adams wasn’t impeached and tried for signing the Alien & Sedition Act (he did lose an election to Jefferson though – the “Second American Revolution” according to Jefferson).

    People in his day were in the habit of reading the Constitution.

    And disagreeing as to its parameters, thus the debates over the First Bank of the U.S. There never has been a period where some unalloyed, uncontested view of the Constitution existed.

  59. Hakluyt: Since I see the intellectual merit in your position, I’m wondering what that view holds is the boundaries of executive power? Since it seems to me that the law in question in the Fourth Amendment, and is therefore part of the Constitution, can it be considered an unconstitutional constraint on the power of the President?

  60. Seamus,

    As to your anti-Lincoln screed, I’ll note that such powers as the “rescue” “protective intervention” power have been recognized by the Courts as early as Durand v. Hollis (1860) a case stemming from the Whig Presidency of Millard Fillmore in 1852.

  61. This guy has gotten mixed up in reading the statute. As he points out, FISA allows wiretaping without court order for “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title” He then cites section 1801 (a)(4) as the basis for including terror groups in the definition of foreign power. Conveniently, he left out the modifying clause “as defined in section 1801 (a)(1), (2), or (3) of this title” in his article. (a)(1)-(a)(3) are more traditional definitions of foreign power. This is why we have lawyers, not journalists, do statutory interpretation.

  62. James Feldmen,

    …I’m wondering what that view holds is the boundaries of executive power?

    For me, as a rule of thumb, the more you get away from the obviously constitutional “repel attack” power of the Presidency, the more you stray into the territory of the Congress’ constitutional war-making and/or national security powers. The problem is one of line-drawing between the powers of two co-equal branches and meeting that line-drawing up with non-Art. I or II statements bu the Constitution (e.g., the Bill of Rights) as well as what one might term “functional/structural” aspects of the Constitution that aren’t discussed in the text but undergird it via various philosophical doctrines that informed it (e.g., seperation of powers). Thus we can divide concerns into three categories: (1) the articles informing the nature of the branches themselves; (2) other constitutional statements which may limit that nature; and (3) functional/structural concerns.

    …can it be considered an unconstitutional constraint on the power of the President?

    Well, obviously there is some point where the two meet, and thus the question is how much the Fourth Amendment (or other aspects of the Bill of Rights) trumps the President’s national security powers? If one reads the Fourth Amendment its obvious that it doesn’t wholly trump the President’s national security powers, so we can at least conclude that the President has some room for manuevre even under the glaring light of the Fourth Amendment. Anyway, I find the “all or nothing” approach that seems to be championed by folks like Jennifer and thoreau to be quite bizarre.

  63. James Feldman,

    …I’m wondering what that view holds is the boundaries of executive power?

    Of course it would also help if the Congress didn’t leave the field re: its national security powers; from my constitutional perspective they are the far more important national security body in the government (I take the Bas v. Tingy approach) but they have delegated much of that power to the President (don’t expect anyone to find a delegation doctrine violation though).

  64. Hakluyt,

    All you’re saying to me is that you think he’ll get away with it. OK, that’s your guess about the future. I’m just saying, with the law clearly broken, impeachment, expulsion, and jail are now possible. And regardless of the odds, I think anyone this side of the Stasi should want all three of those.

  65. From BBC:

    Mr Bush also said he expected a “full investigation” into who leaked information about the wiretap programme. “My personal opinion is it was a shameful act for someone to disclose this very important programme in a time of war,” he said. “The fact that we’re discussing this programme is helping the enemy,” he added.

    So basically, in addition to allocating himself unchecked power, he’s also saying that we’re not even supposed to question it, or even talk about it.

  66. Jennifer,

    …he’s also saying that we’re not even supposed to question it, or even talk about it.

    Welcome to every President’s reasoning since Washington.

    CTD,

    I’m just saying, with the law clearly broken…

    You have to demonstrate that in several venues before that is true.

  67. The probability of Bush being impeached and then losing a Senate trial are quite low.

    That’s one of the reasons I, if I were the President in this situation, might consider calling for impeachment myself.

    If they take the bait, I get impeached with my own party in control, and I get to play Oliver North. If they don’t take the bait, then I’ve more or less put the prospect to rest.

    Either way, I get it behind me.

    To throw him in jail you’d have to have actual trial in the courts, which is an even less likely scenario.

    But it’s kinda fun to think about. I imagine the President’s attorneys would argue that trying the President in a court of law would violate the separation of powers. …even as he’s impeached, essentially, for doing precisely that.

    Ha!

  68. We won’t turn into anything Godwinesque, but we might turn into something that comes closer to Putin’s Russia or PRI Mexico.

    No, I think Godwinesque is closer to the truth. Neither Mexico not Russia have the largest and best equipped military machine in the world and neither claims some grandiose vision of a national imperial destiny. Throw that together with our industrial might and hungry corporations and you get something F-like.

  69. Hakluyt:

    Thank you for the thoughtful response. My follow-up question is then whether this particular circumstance can fall into the “repel attacks” realm of Presidential powers. We know that this policy of using the NSA for domestic surveillance dates to either late 2001 or early 2002. Earlier today, Attorney Gen. Gonzales stated that “We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.”

    With the time period being so long, and with the knowledge that the President sought action by the Congress, found that it would not be forthcoming, and therefore chose to disregard the will of Congress, can this possibly still qualify as a power of the President under the Constitution? Because otherwise, I must say that in this situation of somewhat perpetual threat (since anti-American sentiment and terrorism are unlikely to be defeated even if al-Qaeda is), the potential expansion of the Presidency is a cause for great concern to me.

  70. Now I’ve got this image of Deanna Troi in my head saying, “Merry Fucking Christmas.” Actually, I think Troi would be a little more PC.

    …She’s probably say, “Happy Fucking Holidays.”

  71. And how does President Bush thinks this helps the enemy, I wonder? Do they suppose that we weren’t trying to find out what they were doing?

  72. Ken Shultz,

    …I get impeached with my own party in control…

    What if the impeachment or Senate trial are strung along so as to get bumped into 2006 when the Democrats might control one of the branches of Congress? Also, do you want (in an election year) submit your party’s members in the Congress to the heat of an impeachment and/or Senate trial?

    I imagine the President’s attorneys would argue that trying the President in a court of law would violate the separation of powers. …even as he’s impeached, essentially, for doing precisely that.

    Well, there are immunity aspects related to such a trial that would be difficult to overcome if you had a President being sued by a plaintiff in civil court.

    As to a criminal trial, that would likely only happen after an impeachment and Senate trial were “successful.” At that time a seperation of powers issue wouldn’t arise since Bush would no longer be President. I’ve never seen anyone seriously claim that ex-Presidents are shielded by seperation of powers concerns.

  73. And how does President Bush thinks this helps the enemy, I wonder?

    Same way criticizing the President means you hate the troops, I guess.

  74. If one reads the Fourth Amendment its obvious that it doesn’t wholly trump the President’s national security powers, so we can at least conclude that the President has some room for manuevre even under the glaring light of the Fourth Amendment.

    I’m still left wondering how requiring FISA court review of surveillance requests infringes on the President’s national security powers.

  75. Same way criticizing the President means you hate the troops, I guess.

    See, that I understand, even if I disagree with it. Since the President is the Commander-in-Chief, and therefore the titular head of the military, there is at least a semblance of logic, even if it runs contrary to the most basic principles of democracy. But in this circumstance, we are talking about the issue of whether or not our intelligence services need to obtain secret warrants to listen in to phone conversations. So unless al-Qaeda has FISA infiltrated, there is no possible harm that could come of their awarness of a change in policy.

  76. Hakluyt-Do you agree with what the Executive Branch is doing? You’re arguing pretty hard that it’s no big deal.

  77. Ken Shultz,

    Heh. πŸ™‚

    James Feldmen,

    Thank you for the thoughtful response.

    Well, it was a good question.

    My follow-up question is then whether this particular circumstance can fall into the “repel attacks” realm of Presidential powers.

    To answer I’d take a facts & circumstances approach, instead of the general, high-level approach some want to take here.

    We know that this policy of using the NSA for domestic surveillance dates to either late 2001 or early 2002.

    I’d say their use right after 9/11 would fall well within the “repel attack” power of the Executive (as might short term detentions of suspected terrorists, suspicious people and the like).

    Earlier today, Attorney Gen. Gonzales stated that “We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.”

    Heh. That definately goes beyond the short-term “repel attack” power (which is something to measured in months and weeks and not years – unless say the Congress was nuked and there was no functioning Congress for a year or two). The Congress and the Courts are open and running and the Executive has the ability to request from the former the expansion of its delegated powers.

    …can this possibly still qualify as a power of the President under the Constitution?

    I’d say no (at least with regard to how Gonzales described the program).

  78. James-

    Your 9:31 pm post nails it. FISA is, at best, a modest check on the executive branch. It is not in any way an impediment to an intelligent and effective national security strategy.

  79. Also, do you want (in an election year) submit your party’s members in the Congress to the heat of an impeachment and/or Senate trial?

    The President would play Oliver North. He would say that he did what he did to protect the American people from terrorists, and in the face of that, I suspect Democrats would be more afraid of voting to remove him than Republicans would be afraid of voting to keep him.

    Along those lines, it might have the kind of effect the prospect of elections had when Thatcher called for them. …All the “wets” went “dry”; the backbenchers jumped onto the bandwagon, etc. I’m not saying Bush ‘ll do it, but if I was his strategy advisor, I’d carefully consider it.

  80. See, that I understand, even if I disagree with it. Since the President is the Commander-in-Chief, and therefore the titular head of the military, there is at least a semblance of logic, even if it runs contrary to the most basic principles of democracy.

    Heh heh heh. As the daughter of a career-Navy enlisted man, who in her college years worked in bars frequented by still more enlisted men, I assure you: criticizing any officer, let alone the C-I-C, is taken more as support for the troops, rather than disdain for them.

    But in all seriousness, that gets right back to the whole “To save America I will destroy all it stands for” routine. And I’m having a damned hard time seeing how what Bush is pushing for here is too much different from basically having a President as an elected dictator. I hope this turns out to be just a temporary “blip” in our history, as opposed to the start of a new era and new way of doing things.

  81. Shem,

    You’re arguing pretty hard that it’s no big deal.

    No I’m arguing that there is an intellectual, constitutional, etc. framework by which to make a decision about the activities of the President re: national security actions. Its often the case that something we don’t like is still constitutional and I’d rather apply the framework I have developed over time to the issue than simply come up with a knee-jerk reaction.

    I’m also trying to provide some historical perspective to frothing at the mouth anti-Bush types (that I am no fan of Bush is pretty well known by regulars here).

    Ken Shultz,

    I’m still left wondering how requiring FISA court review of surveillance requests infringes on the President’s national security powers.

    Imagine if for a moment we were attacked by a full-scale assault from Russia and it was discovered or at least hinted at within an hour or so of that some Americans were intimately involved in selling the U.S. out. If Congress demanded in a law which covered such a scenario that search warrants be required before we could invade their premises that would be a pretty clear violation of the “repel attack” power of the Presidency and I seriously doubt that any President worth his or her salt would take notice of such a law.

    To me its fairly clear that the national security powers of the U.S. government are largely divided between the Congress and the President and that both share some of those powers while also holding some exclusively.

  82. Ken Shultz,

    You must favor an “blitz all the time” defense. πŸ™‚

    thoreau,

    If you don’t get my remark to Ken Shultz, that’s because you “don’t get football.”

  83. Jennifer:

    As far as the criticism of the President goes, I’m of your opinion. The only point I am trying to make is that I can see how certain people come to such a foolish conclusion.

    But in all seriousness, that gets right back to the whole “To save America I will destroy all it stands for” routine.

    This I think is unfortunately the natural conclusion of the nanny state. What has happened is that unfortunately, many Americans believe that the worst possible thing that can happen is that someone die of anything except old age. What we end up with is the foolishness of the annulment of the freedoms of 270 million people, because 3000 people died and 3000 more might someday. It is the same mentality that leads us to ban the sale of syringes because we would rather try to keep a single teenager from doing heroin than to allow thousands to use heroin with greater safety.

    I can only imagine what Ben Franklin would think of a nation of Americans where a plurality would be all too happy to trade away their freedoms for instructions on how to hermetically seal themselves into their homes with duct tape.

  84. Shem,

    BTW, I always hate to be put into the situation of actually defending Bush against much of shrill, overly emotional rhetoric used against him. Honestly, the whole “he’s a sociopath” line of argument is more than anything likely to get you ignored than listened to.

  85. Halykut:

    Thank you once again for an excellent answer. Its amusing how much more damning the case agains this administration can be when it is well reasoned.

  86. This I think is unfortunately the natural conclusion of the nanny state. What has happened is that unfortunately, many Americans believe that the worst possible thing that can happen is that someone die of anything except old age. What we end up with is the foolishness of the annulment of the freedoms of 270 million people, because 3000 people died and 3000 more might someday. It is the same mentality that leads us to ban the sale of syringes because we would rather try to keep a single teenager from doing heroin than to allow thousands to use heroin with greater safety.

    I agree, you’ve got the same stupidity from the left and the right wing, just manifesting itself in different ways. No matter what evil either side is doing, it’s all the worse since each side is of course convinced that they’re doing good. It goes back to what I said earlier, of my impression of the President’s speech–I really do think he believes all this stuff.

  87. James Feldman,

    Well, there are bounds to what each branch can do, and you have to discern where those are before you can damn something you may as a gut reaction not like. Which means that if they had only done this for a few months (or six months at the most) following 9/11 I’d have no problem with it. Indeed, if they’d mentioned in their Afghanistan request that they’d like this power and the Congress in the hearings, etc. said ok, I’d have no problem with it also even though the Congressional authorization didn’t specifically mention it. Of course to me its more of a seperation of powers issue than a Fourth Amendment one.

  88. It’s doubtful that’s what members of Congress thought they were doing.

    One of things I’ve always enjoyed about the jurisprudence of Justice Scalia is how he eschews the legislative history of a statute. The plain language is the proper approach from his perspective and should only be looked beyond in rare circumstances. Here the Congress’ plain language, even though its a pretty broad grant of power, clearly doesn’t encompass the nullification of other laws regarding the President’s actions. Of course that no legislative history even considers such a point merely reinforces the plain language.

  89. What worries me is that there doesn’t seem to be any clear ceiling to the Bush administration’s concept of its wartime powers. Their attitude seems to be that anything is acceptable and can be justified later because “look here, we’ve discovered another power that 9-11 has granted us”. Does anyone remember when they claimed they had the right to invade Iraq without any congressional approval, even when they would almost certainly receive it? Hak, I know you enjoy criticizing the alarmism of those you consider less informed than you (i.e. everyone), but I just don’t find your reassurance that because the U.S. has behaved tyrranically in the past without slipping into full-fledged authoritarianism to be comforting. And I think that that apathy of most of the public is far more worrying than the potential hysteria of us paranoid libertoids. I concede I don’t know for sure that these actions are unconstitutional, but can we please agree that, taken along with so much else the administration has done in the past, they are FUCKING SCARY.

  90. I’m bothered by both the Fourth Amendment implications and the separation of powers questions, but I’m also concerned about the President himself.

    As I’ve said before and elsewhere, I think he’s a big part of the problem. I see the charge of “Bush bashing” bandied about quite a bit, but what if the President’s part of the problem?

    If only the President or his advisors had put more thought into this, wouldn’t they avoid this just for the political liabilities?

    …Just to avoid a FISA court? Once again, I look at the benefits compare them to the costs and come to the conclusion that President isn’t lookin’ at the benefits and comparin’ them to the costs.

    I’ve said that so many times about this Administration in so many ways on so many issues; I’m gettin’ sick of it myself–blah, blah, blah.

  91. And think about all the fun places we could go with this “foreign power” exception. Amnesty International? The BBC? The Catholic Church? The U.N.? Am I even kidding any more?

  92. I look at the benefits compare them to the costs and come to the conclusion that President isn’t lookin’ at the benefits and comparin’ them to the costs.

    Well, Ken, that’s the $50,000 question, isn’t it? I mean, why end around FISA? Why create bizarre new kangaroo courts when the courts-martial system is already so well-suited to the task? Why torture, when the evidence that it is ineffective is so overwhelming and the costs are so high?

    Obviously, the Bybee memo and the work of John Yoo gave them the theory that they could do those things, whether or not those opinions are held up by the courts. But what possesed them to actually do those things, even if they believed they could under the law?

  93. citizengnat,

    Hak, I know you enjoy criticizing the alarmism of those you consider less informed than you (i.e. everyone), but I just don’t find your reassurance that because the U.S. has behaved tyrranically in the past without slipping into full-fledged authoritarianism to be comforting.

    I believe what I am suggesting is that there are factors in our system of government that should push back on tyrannical efforts; that and such efforts are hard to maintain over the long term.

    Also, having a weak President like Bush in office was sort of what I was looking for.

    Ken Shultz,

    …but what if the President’s part of the problem?

    Well, its easy to point that out without slobbering at the mouth about it and calling him a “sociopath” or what have. Honestly, the idea that we need a workup about his mental state seems to be last thing we need to be doing.

    If only the President or his advisors had put more thought into this, wouldn’t they avoid this just for the political liabilities?

    Maybe they did put a lot of thought into it and they came to a different conclusion about what they should do?

    …isn’t lookin’ at the benefits and comparin’ them to the costs.

    Or isn’t coming to the same conclusion re: that cost-benefit analysis. Anyway, its on that level that issue needs to be dealt with, not charges and retorts about how dishonest Bush or his detractors are.

  94. citizengnat-

    I’m with you. There may very well be precedents and statutes and resolutions and constitutional doctrines and whatnot to back up the things that I oppose. I’ll let the lawyers sort that out.

    I stick to consequences: If in the final analysis, after all the doctrines are sorted out, the result is power with no meaningful checks on it, then it is at the very least way fucking scary. And the basic theme of our Constitution is that power is to be divided and limited.

    If, after a series of legal gymnastics, one concludes that the President can spy on US citizens at will, or whenever he asserts that the circumstances justify it, I am inclined to believe that the legal gymnast got turned around in one of his or her flips. And if the legal gymnast concludes that the decision can’t be reviewed by a judge or reined in by an act of Congress, then I’m even more convinced that a mistake was made.

    I don’t think anybody in this thread has reached such conclusions, but the White House’s lawyers seem to have reached such conclusions.

  95. What worries me is that there doesn’t seem to be any clear ceiling to the Bush administration’s concept of its wartime powers. Their attitude seems to be that anything is acceptable and can be justified later because “look here, we’ve discovered another power that 9-11 has granted us”.

    I wouldn’t be surprised if we find that someone just completely missed the boat here, and that the logic they use to explain is completely ex post facto rather than forward looking. Maybe they’ve got a general idea about it being better to ask for forgiveness rather than asking for permission, but even then, dismissing the political consequences would be foolish. I suspect they’re just incompetent.

    …no nefarious grand strategy, no over-arching, well considered power grab, no disdain for the Constitution per se, just plain, old, simple incompetence and the spilt milk justifications for it.

  96. James Feldmen,

    But what possesed them to actually do those things, even if they believed they could under the law?

    From what I know of the Bush administration I’d say its because they have a heartfelt desire to protect the U.S. from external attack. I’d say that Cheney and many of his hands are fairly patriotic in how they view such things after all. Of course you can throw the “chickenhawk” label on them, but that doesn’t detract from what I see as honest attitudes about wanting to keep the U.S. from being harmed as on 9/11.

  97. I mean, why end around FISA? Why create bizarre new kangaroo courts when the courts-martial system is already so well-suited to the task? Why torture, when the evidence that it is ineffective is so overwhelming and the costs are so high?

    Unless, of course, the consolidation of power is not a means to an end, but is the end itself.

    Just because our country hasn’t fallen into a brutal dictatorship in the past is no guarantee that we can’t in the future.

  98. thoreau,

    And the basic theme of our Constitution is that power is to be divided…

    No, the basic theme is that it should be shared and intertwined. We have a mixed form of government.

  99. Maybe they’ve got a general idea about it being better to ask for forgiveness rather than asking for permission, but even then, dismissing the political consequences would be foolish. I suspect they’re just incompetent. …no nefarious grand strategy, no over-arching, well considered power grab, no disdain for the Constitution per se, just plain, old, simple incompetence and the spilt milk justifications for it.

    If it were just one or two things, maybe I’d agree. But for all the many outrageous things the administration’s said and done, maybe the President’s supporters are right about the way each individual act maybe can be explained away. But all of them together suggest a disturbing pattern.

  100. Haklyut:

    Of course to me its more of a seperation of powers issue than a Fourth Amendment one.

    This is something that I would be more apt to agree with if I felt that these powers were being used in the manner the administration claims. But FISA is essentially a rubber-stamp, approving over 99% of warrant requests. FISA also allows intercepts and wiretaps to be approved retroactively for up to 72 hours. So, the only two logical conclusions are that either the administration was ignorant of the details of the FISA court, or that they wished to use the NSA to obtain wiretaps and intercepts that are not related to terrorist activities and would not have been approved by FISA.

    I understand that this is supposition at this point. But no other conclusions seem to match the facts. And if the latter conclusion is true, then it is a matter of the Fourth Amendment.

  101. Jennifer,

    Thankyou for a perfect example of what a slobbering at the mouth anti-Bush type looks like. As we all know, Bush wants to be “President for Life.” πŸ™‚

  102. Ken Shultz

    I would agree that something along those lines are probably closer to the truth than an overarching conspiracy, but such “incompetence” suggests they care very little whether they are violating the law or not.

    Hakuylt

    I don’t doubt their honestly wanting to keep us safe. What usually worries me the most is their statements I take at face value.

  103. James Feldman,

    Or they felt that the constitutional authority of the President allowed him to be somewhat more unfettered in this area than members of the Congress think. We have to accept that the President can interpret the Constitution just as easily as the courts can and that there is something of a long tradition in our history of Presidents attacking the idea that the court is the final arbiter of the Constitution’s parameters, etc.

  104. Ken and Citizengnat, nothing that you’ve said or that I said even contradicts each other. It is quite possible, and even likely, that they honestly want to keep America safe, and honestly think that consolidating power in their hands (including the power to spy on people more or less at will) is the best way to do it.

    Unfortunately, at no point do I see any of them saying “All right, now we have enough power to fight terrorism. So we will only go this far and no further–we won’t take any more power than we’ve already got.”

  105. James Feldman,

    My point is that just because Congress pass a law or rebuffed an effort to grant more powers under a law doesn’t mean that the President is bound constitutionally to honor it if the President views it as unconstitutional.

  106. Jennifer,

    All right, now we have enough power to fight terrorism.

    No President is going to limit his or her flexibility this way. You’re just setting a standard for Bush that wouldn’t be met by anyone occupying the Oval Office.

  107. Halykut:

    From what I know of the Bush administration I’d say its because they have a heartfelt desire to protect the U.S. from external attack. I’d say that Cheney and many of his hands are fairly patriotic in how they view such things after all.

    My question about that is what reasoning leads them to believe that these policies will protect the U.S. from external attack? In each of the three cases I mentioned, these policies have been at least ineffective, and at worst conterproductive. In none of these cases has the administration made a good argument for their policies, choosing to leave the defense to surrogates such as Krauthammer or Kristol. And even then, the reasoning put forward by their surrogates leaves much to be desired.

    Since I consider the notion that the administration is simply stupid to be ridiculous, and since I, like you, agree that they do take the notion of America’s defense seriously, I’m still left wondering why a group of people who had spent much of their lives in government came to such, let’s say curious, decisions.

  108. I beleive that the Bush administration is the first to be publicly opposed in a ruling by the FISA court. Perhaps they simply don’t trust these (activist) Judges to keep their mouths shut.

  109. Haklyut:

    Not that Jennifer needs me to answer for her, but there are more kinds of consolidation of power than simply a dictatorship under a President-for-life. Phenomena such as the K Street Project, the Texas redistricting, and the talk by DeLay and others of a “permanent majority” suggest that there may be anti-democratic goals of the current Republican leadership that see the Bush Presidency as a means and not an end.

  110. James Feldmen,

    My question about that is what reasoning leads them to believe that these policies will protect the U.S. from external attack?

    Probably something along the lines of: “If we catch and or kill the bad guys we’ll be safer. It will be easier catch or kill them if we do X, Y & Z.” Its a position I likely agree with up to a point. They also may not be thinking long term or institutionally or historically (which is more my tendency). They may be viewing such things in a temporarlly limited, discrete way.

    Anyway, its hard for me to completely put myself in the perspective of the President or his advisors because I’m not the President or his advisors. They are influenced by things, have different backgrounds, have access to information, etc. that I am not privy to.

  111. Jennifer-

    Word.

  112. James Feldman,

    Phenomena such as the K Street Project, the Texas redistricting, and the talk by DeLay and others of a “permanent majority” suggest that there may be anti-democratic goals of the current Republican leadership that see the Bush Presidency as a means and not an end.

    Yeah, but that strikes me as just your politics as usual crap by both major parties.

  113. James-

    I agree. I see their goal as something like Mexico under the PRI or Russia under Putin, not North Korea.

  114. Just as with Clinton, some people are just going to hate Bush no matter what he does and view him as the Sauron of our times.

    From my perspective I don’t hold Bush out for special loathing because I loathe just about every person who has ever occupied the oval office. I have this historical perspective and I’d have to see some truly bad shit out of Bush for me to differentiate Bush from most Presidents.

  115. I went and read the “authorization of use of force” that Bush mentions (and linked above in Adam’s post (#8 in this thread). That declaration references the War Powers Resolution of 1973.

    That makes for interesting reading. Basically, it says that for the President to use troops in a hostile manner, he has to present a report to Congress, and one of the statutory requirements of this report is “the estimated scope and duration of the hostilities or involvement.”

    (See text at http://www.policyalmanac.org/world/archive/war_powers_resolution.shtml)

    So, does anybody know what Bush’s estimate of the “scope and duration” was? Do any of the legal mavens know of a site archiving Bush’s request to congress in this matter?

  116. They can secretly spy on people, with no oversight. And they can imprison people with secret evidence that nobody is allowed to see. And there’s no system in place to correct honest mistakes, let alone deliberate abuses of power.

    This is very dangerous indeed. So far, it is only a small number of people who have actually been affected by this. But there’s no reason to assume this will remain the case.

  117. Hakluyt-So we just let the President skate when he pulls this BS merely because there’s a long and celebrated history of it?

    that I am no fan of Bush is pretty well known by regulars here

    Is it? I’m not that sure.

  118. Hak-

    See, your historical perspective may be useful and welcome to the debate but doesn’t change that Bush is the President RIGHT NOW. I agree that we have a proud history of correcting our worst excesses, but don’t you think that passionate dissent is an element of that system?

    The new apologist line: “Yeah, well, Adams would have been worse.”

  119. James Feldman,

    BTW, how would a “permanent majority” be anti-democratic (using in this sense the most literal defination of “democratic”)?

    thoreau,

    Hate to break it to you but the PRI of Mexico was far more like North Korea than you probably realize.

    Anyway, one wonders why you are aren’t comparing their efforts to the nearly one-party control of the Congress for most of U.S. history from the 1930s onward.

  120. Seamus;

    “Both Roe v. Wade and this latest abortion out of the Bush Administration are examples of the theory of jurisprudence that says the Constitution must mean what we want it to mean, and that if the words of the Constitution don’t support us, we’ll just make shit up.”

    After all, “the Constitution is just a piece of paper.” (GWB)

    As an aside, what happened to all of the right wing militias (Michigan Militia, et al) that were so down on government power? Oh, my bad, that was during Clinton, so those guys are on Bush’s side now that he’s in charge, I guess that’s a good thing.

  121. Shem,

    So we just let the President skate when he pulls this BS merely because there’s a long and celebrated history of it?

    No, I suggest that if you don’t like that you use the political process, etc. to end.

    My point about the history of such things is that Jennifer’s dense and overly emotional rantings about Bush (which amount to a claim of him being the worst President ever!) need to be toned down.

    citizengnat,

    I’m not apologizing for Bush’s actions.

  122. If it were just one or two things, maybe I’d agree. But for all the many outrageous things the administration’s said and done, maybe the President’s supporters are right about the way each individual act maybe can be explained away. But all of them together suggest a disturbing pattern.

    Incompetence is hard to compartmentalize. …No, that light just won’t be hidden under a bushel–it wants to shine, shine, shine.

    Nominating Harriet Miers was evidence of incompetence–why would the President do that? I read a speech that the President gave bragging of having closed down the torture chambers of Abu Gharib, right before the Abu Gharib story broke. …a disturbing pattern indeed. He elevated the guy responsible for splitting hairs between torture and “inhuman… He elevated Bolton, who may have filtered intelligence regarding WMD in the runup to the Iraq War. Why would he elevate people who appear to have gotten him in trouble?

    Although I was marginally against the Iraq War when it started, I was an enthusiastic Bush supporter for a long time. …but everywhere I look in this Administration I see bad administration.

    Ken and Citizengnat, nothing that you’ve said or that I said even contradicts each other. It is quite possible, and even likely, that they honestly want to keep America safe, and honestly think that consolidating power in their hands (including the power to spy on people more or less at will) is the best way to do it.

    Agreed.

    Unfortunately, at no point do I see any of them saying “All right, now we have enough power to fight terrorism. So we will only go this far and no further–we won’t take any more power than we’ve already got.”

    No, they wouldn’t do that. …and I think there’s something to the argument that Presidents, traditionally, want all the power they can get. …but most of them wouldn’t, perhaps unnecessarily, break the law, which this president seems to have done.

  123. cliff,

    They still exist.

    After all, “the Constitution is just a piece of paper.”

    The statement in at least one sense is correct. Its not ordained by a deity after all, its a compact amongst people that we can ultimately abandon if we so desire.

  124. citizengnat-

    Interesting that you picked Adams. His son later became President, and their names differed only by a middle initial.

    Fun fact: Just as W lost the popular vote in 2000 but won the electoral vote, Q actually lost the electoral vote (there wasn’t a meaningful nationwide popular vote, since not all electors were directly elected or pledged to a candidate) but won the runoff in the House of Representatives. (There were 3 strong candidates, and none got a majority.)

  125. Haklyut:

    I don’t think that President Bush is an extraordinarily evil President. Had I lived through Johnson and his behavior regarding Vietnam, I imagine that I would be equally offended. I think that all Presidents bend the law, and try to expand their powers to try to achieve what is important to them. I think the divergence from Clinton or Reagan can be found in that Presidents who preside over wars, find it expedient to bend the law and expand their powers more fundamentally and in more damaging ways. For all the praise Lincoln receives, he is the President who suspended habeas corpus and was rebuked by the Supreme Court in a manner that the most rabid leftist could hardly dream to see, and no person who praises the New Deal cares to be reminded that it was FDR who brought us internment.

    But it is important to note that in each of those occurences, the other branches of government, and for that matter the people themselves, pushed back hard against these expansions of Presidential power during wartime. And I find that in many people who view these Presidential excesses to be ordinary in President Bush, this is followed by a desire to shirk the responsibility we have to do as our parents and grandparents did and push back, and to enact the laws (such as FISA) which were put in place to avoid the repetition of the abuses of Presidents past.

    Yes, the “Worst President Ever” folks are ignorant of history. FDR would have marched every Muslim in America into camps along the San Andreas. But that does not mean that I feel it is acceptable to allow Bush his own infamies. I have little desire to sit idle while the events transpire that my children will perceive the way I see the Nixon era.

  126. Why would he elevate people who appear to have gotten him in trouble?

    Because he has more in common with the puppet than the puppetmasters? Or even simpler: because he knows, as we’ve seen over and over again, that he wouldn’t be getting into any real trouble anyway. What difference does public opinion make to him? I agree with whoever it was–James, I think–who said earlier that the Bush Presidency is a means to an end.

  127. thoreau,

    Q. also lost the popular vote. Q won the House vote due to some backroom dealing – the so-called “corrupt-bargain.” Jackson used this latter development (along with a number of other issues) to ride to victory in 1828 and thus create the Democratic party.

  128. James Feldman,

    But it is important to note that in each of those occurences, the other branches of government, and for that matter the people themselves, pushed back hard against these expansions of Presidential power during wartime.

    Eventually they did; during the Civil War and WWII they didn’t. Justice Rehnquist was right that we (meaning the American populace generally) accept a lowered threshold regarding a lot of things in wartime. Anyway, the ultimate solution for these issues remains in the political process.

  129. Shem,

    Anyway, instead of having an interesting conversation about the issue I guess I could have done a Jennifer or a thoreau or a joe and just started howling about how much “Bush Sucks!” and the like.

  130. One of the central functions of management is choosing middle management. There are different ways to choose managers, but Bush’s approach is novel.

    …You pick the people that make the biggest mistakes. That’s just bad management–that’s incompetent management. Loyalty trumps achievement completely in the Bush Administraion.

    P.S. Where are you Mo? I’d love to get your two cents on this.

  131. Haklyut:

    A permanent majority would not be anti-democratic if it occured due to popular will (take the example of the supremacy of the Israeli Labour party for the first 35 years of the nation’s existence). However, acheivement of a permanent majority through gerrymandering (although that is hardly a game Tom DeLay invented) and through the control of funding through control of the lobbyist industry via the K Street Project, is cheating the game to subvert the will of the people. That is not a desire which is unique to the Republicans, but it is certainly an anti-democratic desire, in the most literal sense.

  132. Hakluyt-

    If you aren’t apologising you are at least implying that we should all calm down about it. I think being calm about this sort of behavior would be an abandonment of my responsibility as a citizen. But I guess that makes me an irrational “Bush-hater” while you get to maintain your oh so cool and rational position in the “whatever they’re all bastards” camp.

  133. Ken Shultz,

    Clearly some of his choices were good and some not so good. Are Rumsfeld, Rice, etc. truly incompetant?

  134. …You pick the people that make the biggest mistakes. That’s just bad management–that’s incompetent management. Loyalty trumps achievement completely in the Bush Administraion.

    Well, the torture memo may have been a mistake from a public relations standpoint, but I don’t think they care. You keep talking about “mistakes” but they’re actually cases where “people complained, but nothing much happened.” Except for Harriet Miers.

  135. citizengnat,

    Yes, being calm and rational are pretty good attributes when taking on something you don’t like.

    And yes, they all are bastards. πŸ™‚

    James Feldman,

    You are acting like there is honor, honesty or fairness in politics. πŸ™‚

  136. I will concede they are all bastards, but I have long prefered the term “whores and weasels” πŸ™‚

    Some whores and weasels are worse than others.

  137. Jennifer,

    You keep talking about “mistakes” but they’re actually cases where “people complained, but nothing much happened.”

    The Bush administration does change its policies based on political, etc. heat. Remember when they labored against early elections in Iraq, but then switched mid-stream and supported them after all those Shi’ite protests? The Bush administration isn’t remotely as tone deaf as some would like to believe.

  138. Haklyut:

    I agree with you and Justice Renquist. But, here’s the thing: the War on al-Qaeda is over, at least in the military sense, and has been for some time. The war in Afghanistan removed them of a national base of operations, and the battle against them is now a police and intelligence mission. And the war in Iraq is not a war against terrorists, but rather an attempt by terrorists and Sunni supremacists to build a nationalist guerrilla movement such as the Viet Cong. But in an important sense, we must realize that what is left of the war on terror is a long and relentless law enforcement struggle to isolate and bring to justice the surviving conspirators.

    We are already further from 9/11 then the distance from Pearl Harbor to V-J Day. It is time for our acceptance to end.

  139. Haklyut:

    I’m not so foolish as to believe that there is honesty, fairness, or honor in politics. I am so preposterously idealistic however to believe there ought to be such in an electorate.

  140. I think a lot of folks here would like for us to leave Iraq, and certainly opposed the invasion, and have a grudge against the President for the invasion. Now I also opposed the invasion and stated that if we did invade we’d be as optionless as we are today. But I think he’s right when he says we can’t leave – indeed, I feel that this is the obvious conclusion at this point and not a doctrine that any future President will easily abandon no matter what party they are in.

  141. James Feldman- I don’t think you can say that historically the other branches pushed back much.
    The Sedition Acts (1700’s and 1900’s) were passed by Congress, after all.

    The courts and Congressmen weren’t exactly slapping FDR around over internment, either.

    On the bright side, the election of 1800 settled the question of the Alien and Sedition Act.

  142. Then again you’re also talking to a guy who thinks that the so-called Hundred Years’ War wasn’t all that long in the great scheme of things.

    James Feldman,

    And the war in Iraq is not a war against terrorists…

    I don’t think it was originally, but it has become that. We’re now in a contest of wills over Iraq, and we shall see whose will is strongest.

  143. I was split on the invasion of Iraq: I felt it was probably the right thing to do, and I felt that the Bush Administration was going to fail miserably at it. I feel I’ve been right about the second part.

    I agree that it seems like we are stuck with it; we made the mess, and it certainly isn’t going to clean itself up. I opposed the Bush reelection in part because I felt that there was no chance that he would not continue to make the situation there worse. And I am afraid now that the choice is between the complete disintegration of Iraq quickly if we withdraw, or slowly while the occupation continues. I don’t know if I believe anymore that there is a means for us to undo the damage we have already done. I hope I am wrong about that, but I see little reason to believe that I am.

  144. James Feldman,

    Its one of the reasons I don’t take Democrats seriously on Iraq. They’re going to bitch and whine about it, but they have no plan (except a quick withdrawl) to speak of.

  145. Happy Jack:

    I think that the Supreme Court’s ruling in Ex Parte Endo and its insistance over the resistance of the President that it be enforced qualify as some slapping over internment.

  146. I don’t take any of them seriously on Iraq; I just think that getting rid of the current administration would be addition by subtraction. People like Rumsfeld, Hadley and Cheney have been so consistently wrong about Iraq that as long as they are in charge, a quick withdrawal remains the best option. Rather that then waiting to see what the next disaster these men will lead us to.

    There may be still some avenues in Iraq that do not lead to disaster. But the current administration is not leading us down those avenues, and the further they take us from them, the more that hope dwindles, and everything that I know about history and military strategy leads me to believe that is what is happening.

  147. Hakluyt:

    Imagine if for a moment we were attacked by a full-scale assault from Russia and it was discovered or at least hinted at within an hour or so of that some Americans were intimately involved in selling the U.S. out. If Congress demanded in a law which covered such a scenario that search warrants be required before we could invade their premises that would be a pretty clear violation of the “repel attack” power of the Presidency and I seriously doubt that any President worth his or her salt would take notice of such a law.

    Such a scenario has been established by precedent to be exigent cirumstances, allowing a warrantless search as there is an imminent danger to the public. If Congress passed a law as you described, it would be the responsibility of the courts to strike it down.

    My point is that just because Congress pass a law or rebuffed an effort to grant more powers under a law doesn’t mean that the President is bound constitutionally to honor it if the President views it as unconstitutional.

    Interesting. The President can ignore Congress just because he, in his sole discretion, feels that what they’re telling him is unconstitutional? I’m confused; I thought that was the purview of the courts.

    James Feldman:

    But in an important sense, we must realize that what is left of the war on terror is a long and relentless law enforcement struggle to isolate and bring to justice the surviving conspirators.

    Exactly. A terrorist attack isn’t so much a military action as a hate crime. We aren’t “at war” in any traditional sense of the word. So it’s time to stop pretending that we are for the sake of limiting freedom in the name of protection.

    Just because we (as a country) have done worse things in the past doesn’t mean what we do now is ok. Each action should be measured on its own merits (or lack thereof), not on how it compares to previous trangressions such as internment camps or McCarthy’s communist witchhunts.

  148. Hmm,

    I wonder if the event of a Democrat president will make this site to a place where I can be on board with Jen and Dr T, and the majority. Where I can talk about the president being the worst ever, and we can all agree about the upcoming apocalipse. And the apparent end to democracy in the US.

    (on a side note, the fact IMHO, the fact that there is a democratic president, will most likely mean they are trying to take our guns again, and thus the Godwinian implications will be closer to the truth).

    I really like being with “the end of the world as we know it” bandwagon, seriously.

    I can have all my guns hidden, and be in a permanent state of alert when I am back home. Ready to defend my Alamo, ready to join the resistance.

    Right now, I am very blaze about this. I really do believe we are in a struggle that we could lose, meaning that eventually Jen would be wearing a burka. I am also enjoy the anger that Bush’s stuff brings to the “abortion above all esle” crowd.

    And I really think that people who have been twisting the law in their own favor, re rasing taxes to pay off welfare voters, and taking our guns, are seeing their abuses used in a way that they don’t approve of. In a way this makes me happy. I guess it will, until I really am affected by such laws.

    Taxes and gun laws do affect me. Listening in on phone conversations really does not. Keeping bad guys in secret prisons could affect me as I have many oppinions and beliefs that are not popular or PC.

    Also, while I am rambling, I think that no phone conversations, or emails were really private long before Bush. The only difference is that it has become public under Bush. This I see as a good thing.

  149. Right now, I am very blaze about this. I really do believe we are in a struggle that we could lose, meaning that eventually Jen would be wearing a burka.

    The only way anyone in this country is ever going to be wearing a burka is if the Pat Robertsons of America find a way to make it happen. Leaaving aside the misery that Islamic hard-liners visit on the citizens of their countries, they’re all pretty pathetic. If they had any real substantive power then their citizens wouldn’t be buying up all the “decadent” western culture they can lay their hands on. They can’t even fight an honest battle on their own soil; they have to use terrorism. I think that’d be the worst thing of all; losing our freedoms because we were so paranoid that we gave them to protect against a threat that didn’t even exist.

  150. The militia movement shouldn’t be assumed to be a monolithic racist white/Christian movement.

    “Extreme Prejudice: How the Media Misrepresent the Militia Movement,” Reason, July 1995.

  151. Josh,

    …I thought that was the purview of the courts.

    Solely by the gloss of history.

  152. Hakluyt,

    I at least don’t want Bush in jail because I hate him. I, like you, think he is just an average sucky politician. I like my civil liberties though, and I’m all for being “tough on crime”, which is why I want him sacked, jailed, or at least impeached. I would certainly feel the same about similar infractions by Clinton and even a President Badnarik (but now I am really dreaming).

  153. Jacob Sullum,

    Instead it says Congress authorized the wiretaps when it gave the president permission to use “all necessary and appropriate force” against the nations, groups, and individuals responsible for the September 11 attacks.

    BTW, from the standpoint of statutory interpretation that is a pretty weak argument. FISA states that it is the “exclusive” means by which this stuff can be done, and arguing that the general language of the Afghanistan resolution trumps that goes against how statutes are to be interpreted.

  154. The more I look at these three justifications for their behavior the more I realize that the Bush administration was blind-sided by this leak, because all three are such weak arguments.

  155. No Hak, they’re just that inept. The NY Times has been sitting on the story for at least a year, apparently at the behest of the White House due to issues of “National Security.” In fact, the publisher and executive editor of the Times met with the White House on the 6th of this month, most likely in an unsuccessful attempt on the part of the Adminstration to secure more time.

    Besides, legal wrangling aside, they clearly broke FISA. However bad that is, the fact that they violated the law can’t be argued. When you’re caught red-handed in a crime, it’s going to be hard for your lawyer to find an argument that’ll pass the sniff test.

  156. Since I consider the notion that the administration is simply stupid to be ridiculous, and since I, like you, agree that they do take the notion of America’s defense seriously, I’m still left wondering why a group of people who had spent much of their lives in government came to such, let’s say curious, decisions.

    Personally, I think that 9/11 blindsided them in such a way that they now overestimate the capabilities of Al-Qaeda and it’s associated organizations. They are jumping at shadows, and when their normal methods don’t work to uncover the plots that they are sure are happening, then they turn to extraordinary methods to find them.

    For example, it’s pretty clear from accounts like Woodward’s Plan of Attack that the Vice President was convinced early on that Iraq had WMDs, despite any evidence he saw to the contrary. As such, he pressed the intelligence services to look harder, because he believed they were there. Cheney is just one example, but it seems to me to be a common trait shared by many in the Administration: they were burned by 9/11 and were going to leave nothing to chance.

    IMHO, they see danger everywhere and are haunted by images of “smoking guns in the form of mushroom clouds.” Despite their talk of progress, they fear that Al-Qaeda is just one step away from killing hundreds of thousands of Americans. They feel blind, they are bothered by this nagging sense that they just don’t know enough, and the fact that their normal sources aren’t turning up plots everywhere has them worried that they are just not doing enough to find those plots. Thus they turn to extraordinary methods.

    Fear is a great motivator, for both good and bad ends. I think these guys are just deathly afraid that something is going to happen, so they have to do everything in their power to stop it (whatever it is).

  157. Shem

    Well, FISA does provide for criminal liabilities for violating its terms, and its intent based as I recall (its not strict liability in other words). Thus you’d have to prove the proper mens rea on the part of the President, etc., which is a tall order IMHO.

  158. moonbiter,

    Well, the whole “err on the side of security” attitude runs through much of the administration’s rhetoric. Its an understandable attitude and not nearly as mysterious as various people like to make it out to be.

  159. They can’t even fight an honest battle on their own soil; they have to use terrorism.

    Yeah, but terrorism is a powerful tool against a coward. If you can make the technological giant wimper away because it is afraid of casualties, then in time the defeat of the giant is inevitable.

    I think that is what the enemy is banking on.

    A hypothetical two societies, one for whom life is supreme and cannot be taken, and for the other one life is cheap and a means to an end. No matter how much stronger the 1st, inevitably the second ends up winning. Only the description doesn’t fit us. It only describes a portion of us.

    That is why they won’t win.

  160. If you haven’t already read it – check out the disturbing memo Rockefeller wrote to Cheney and “the file.”

    http://talkingpointsmemo.com/docs/rock-cheney1.html

  161. Stevo Darkly,

    Very good and very informed, if somewhat dated article. In retrospect, with organized militias such as the one mentioned, I don’t have much in disagreement.

    The comments that I made, I guess don’t really describe organized militia, but some of the loners that I know, or have met. Of those, not being pure enough white, and not being christian, I do not fit in. Though truthfully they are loners, so no one really fits in. And even so, I am entertained by their conviction in what they believe in, and their conviction in how screwed up the government is (no matter who is in office, kind of like Jennifer if she were a white christian male).

  162. I really do believe we are in a struggle that we could lose, meaning that eventually Jen would be wearing a burka.

    Oh, come on, Kwais. You think al-Qaeda is strong enough to invade us, overthrow the US government and force a Muslim theocracy on America?

  163. Oh, come on, Kwais. You think al-Qaeda is strong enough to invade us, overthrow the US government and force a Muslim theocracy on America?

    Well, Jen, as the old Buffalo Springfield song goes:

    Paranoia strikes deep,
    Into your life it will creep.
    Starts when you’re always afraid,
    step out of line, the Man come and take you away.

  164. I’m with Jennifer. Terrorism is the tool of the weak, not the strong. They can’t take over our territory. The most that they can do is drive us away from their territory.

    What they didn’t realize on 9/11 is that attacking us on our territory just makes it more likely that we’ll go to their territory.

  165. One other thing, kwais: I wouldn’t be talking about the end of democracy in America if the administration wasn’t doing everything in its power to resemble the KGB.

    (I refuse to make any analogies with a certain German dictator, lest people invoke Godwin’s Law on me.)

  166. thoreau has morphed into gaius marius.

    probably because this development is a damning confirmation of my views on this nation and civilization. i wish i could say i was surprised by this all. i’m not.

    if this is allowed to go on, this nation no longer has any right to think itself a free society, imo. when push comes to shove, it is a tyranny. and that malevolent tyranny is quickly creeping down the tree from the afghan fringes where it began to the root.

  167. …unless they think their guys are going to be running the show forever.

    we may be in for some surprises the first time these characters feel they will lose The Big Election. when setting up a domestic spy state, torture, and all the rest are not out of bounds, what makes anyone think that these faith actors feel constrained by election laws? their mission, they clearly feel, comes from an authority higher than legislation.

  168. No offense, gaius, but I haven’t really morphed into you yet. I agree with some of your assessments of the current situation, but I can’t jump on your bandchariot and insist that we would be better off going Medieval. I’m not ready to party like it’s 1399. πŸ™‚

  169. probably because this development is a damning confirmation of my views on this nation and civilization. i wish i could say i was surprised by this all. i’m not.

    As concerned as I am about what’s been going on, I don’t think this is a problem with our nation or civilization; it’s a problem with some opportunists taking advantage of unpleasant events to consolidate power for themselves. There isn’t a single type of nation or civilization, ever, that would be immune from this.

    Our freedoms are indeed in big trouble, and I still don’t know if the Bush administration will be a mere blip in our history, or if this really is the start of a new (and far worse) era of American history.

  170. when setting up a domestic spy state, torture, and all the rest are not out of bounds, what makes anyone think that these faith actors feel constrained by election laws?

    I fear that you may have a good point.

  171. when setting up a domestic spy state, torture, and all the rest are not out of bounds, what makes anyone think that these faith actors feel constrained by election laws?

    Oh, hell.

    Are there any lines you think they WON’T cross? Honestly, what horrified me about this past weekend wasn’t so much the discovery of the secret wiretaps, but the President’s response: “Yeah. So what? We’re gonna keep doing it. And anyone who questions this is “shameful”.”

    He didn’t actually SAY “fuck you, America,” but thenagain he didn’t have to.

  172. “The founders were pretty clear in the convention that that the President has some serious independent national security powers, including the power to repel attacks (which he doesn’t have to consult the Congress on).”

    Repelling attacks is one thing. Domestic spying is quite another. Adams responded to the French threat (in the Quasi-War), and he prosecuted conduct which, under the prevailing jurisprudence of his time, was not recognized as having First Amendment protection (despite the claims of the Jeffersonians), but he never tried reading the mail of his fellow citizens.

    “As to your anti-Lincoln screed, I’ll note that such powers as the ‘rescue’ ‘protective intervention’ power have been recognized by the Courts as early as Durand v. Hollis (1860) a case stemming from the Whig Presidency of Millard Fillmore in 1852.”

    As best I can see, Durand wasn’t a decision by the Supreme Court. But in any event it appears that the case has nothing to do with the asserted power to make war generally, much less the power to do whatever domestic actions the executive thinks will further the war effort. (And as for my “screed,” I would note that Lincoln himself correctly recognized the limitations on executive power when it was a matter of someone else wielding it.)

  173. In the spirit of Animal Farm, I offer the following new spin on separation of powers:

    Three branches good, one branch better.

  174. Are there any lines you think they WON’T cross?

    I imagine that just as Nixon balked at Al Haig’s suggestion that he use the army to resist impeachment, Bush would stop at the same point.

    I also think it is important to acknowledge that there is a serious difference between the resistance we face in Iraq and the terrorist threats we face here and in other countries. A group of suicide bombers in London or airplane hijackers in the United States are not the same problem as guerrillas planting IEDs in Mosul. Different tactics must be used to defeat them.

    Josh, it is amusing that you would say “Exactly” when I so disagree with your contention. Not least because I think that “hate crime” is a meaningless term.

  175. To me the key point missed by the so called “highest legal authorities in the land” is the use of the word “and” in the Declaration by Congress for military action in Afganistan. It says “necessary and appropriate”. My Catholic English classes in 6th and 7th grae taught me that the use of and in a sentence means that both items are necessary, not just one. Use of the word “or” means if either of the items is there, then OK. So, the administration had to follow actions that were necessary and appropriate. Spying on Americans is never appropriate. QED.

  176. I haven’t really morphed into you yet

    lucky for us both, mr thoreau. πŸ™‚

  177. it’s a problem with some opportunists taking advantage of unpleasant events to consolidate power for themselves.

    you don’t think the fact that they can — riding the considerable popular support, i might add, which empowered them — is a problem with our society, ms jennifer? i do, fwiw.

    There isn’t a single type of nation or civilization, ever, that would be immune from this.

    agreed — that is, every civilization heretofore known has fallen into a universal dictatorship as it declines and eventually dissolves.

    I still don’t know if the Bush administration will be a mere blip in our history, or if this really is the start of a new (and far worse) era of American history.

    i think, ms jennifer, that this administration is only an evolutionary step in the decline of the american strain of republicanism that has been proceeding apace since the mid-1800s. bush is the heir of lincoln, wilson, both roosevelts and nixon. the developments of each are contingent upon their priors — and a deeply-seated fear of the perceptible western social decline has underlain it all, each finding that ever-greater authority is the only measure by which society can be “saved”.

    as it happens, i think this reincarnation of despotism may well be very near the last, if not the last itself. the erstwhile shame of lawlessness is clearly gone now.

  178. I imagine that just as Nixon balked at Al Haig’s suggestion that he use the army to resist impeachment, Bush would stop at the same point.

    if he does, mr feldman, we will simply be left to wait for the next reincarnation of this resilient drive for preservative despotism, which woudl surely not be far down the road.

  179. Gee, what’s next for Dear Leader? Perhaps He will exercise His executive powers to do away with nasty little distractions like term limits or elections?

    But (only partially) seriously, what we don’t need is more chest-beating and crying over the ignorance of us unenlightened civilian babboons who fail to grasp the obviousness of how “we are at WAR” and “it’s a NEW WORLD after 9/11” and … well, need I repeat the steak-‘n’-eggs-for-breakfast talking points here?

    Actually, this whole sclerotic post-9/11, fake conservative movement needs to die of a massive heart attack as soon as possible if we have any hope of saving a modicum of privacy for the rest of us.

    And please spare us the “it’s been happening since Washington” zingers. I took history classes too. A tail isn’t a leg.

  180. He didn’t actually SAY “fuck you, America,” but thenagain he didn’t have to.

    Nah, he just called the Constitution “a goddam piece of paper.”

  181. Are Rumsfeld, Rice, etc. truly incompetent?

    Rice I’m not so sure about. She makes great appearances on Sunday morning talk shows. She looks solumn when sitting next to foreign leaders on television. For all I know she’s perfectly competent.

    Rumsfeld, however, is incompetent. I blame his foolish interrogation policies for the mess at Abu Gharib; I blame his bungling implementation of those policies for that mess as well. I don’t think he had much of a plan for the aftermath of the invasion. I have a list of complaints about Rumsfeld’s performance.

  182. You keep talking about “mistakes” but they’re actually cases where “people complained, but nothing much happened.”

    My larger point here is that the Bush Administration makes big “mistakes”, but many people don’t recognize them as such. …They justify these mistakes as actually being smart and new strategies that further emphasize how the old policies don’t apply anymore.

    Refusing to classify detainees as POWs and, subsequently, having to release them because the SC says you gotta give ’em a trial isn’t seen as a mistake. Rather, it’s seen as an indication that we need some new classification or new policies for such prisoners.

    I laugh at that suggestion. Everybody that screws up has a explanation for it–after the fact. We don’t need to rewrite decades of policy just because the President foolishly decided to ignore the courts or our laws. The same thing applies here. Not going to a FISA court for this was foolish. …You’ll hear the Administration’s defenders justify this foolishness with all sorts of Constitutional theories and protests about protecting Americans from terror.

    …Those theories and those protests don’t make the President’s actions any less foolish.

  183. Since when did the Natty Review stop publishing, um, conservatism, and become a house organ for the Bush Inner Circle?

    Rigodamndiculous.

  184. Since when did the Natty Review stop publishing, um, conservatism, and become a house organ for the Bush Inner Circle?

    I’m starting to pay more attention to the theory that, in politics, the opposite sides tend to strive to become the caricatures their opponents claim them to be.

  185. My letter to Robbins and his response:
    Mr. Robbins,
    You have misread FISA in your recent article “Unwarranted Outrage.” As you point out, under certain conditions FISA allows wiretapping without a warrant for “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title.” You cite section 1801 (a)(4) as the basis for including terror groups in the definition of foreign power. You conveniently left off the clause in italics above modifying “foreign powers.” Since terror groups don’t come under the definition of foreign powers in sections (a)(1) to (a)(3), your argument falls apart.
    Maybe you were trying to acknowledge this hole when you wrote “though the statute would explicitly apply to “a faction of fa oreign nation or nations.” The enumeration of (a)(1) to (a)(3) in above clause means that (a)(4) to (a)(6) are excluded. This is a standard rule of statutory intepretation. And regardless, your statement is hardly a frank acknowledgement of the weakness of your position, if it was intended as such. If you believe that the phrase “a faction of a foreign nation or nations” somehow includes terror groups like Al Qaeda, then I would refer you to the Senate report on FISA explaining the phrase, S. Rep. 95-701. It says “This category is intended to include factions of a foreign nation or nations which are in a contest for power over, or control of the territory of, a foreign nation or nations.”
    I hope you will acknowledge your mistake on your site.

    XXXX, I’m aware of that, as I stated in my piece, “as defined in section 1801, subsection (a), “foreign power” can mean “a group engaged in international terrorism or activities in preparation therefore,” though the statue language would explicitly apply to “a faction of a foreign nation or nations.”” I think a terrorist group can also be such a faction, and lawyers could certainly argue that. It’s not much of a stretch — compare to Roe v. Wade. In any case, the point is to bring to light circumstances under which warrantless searches are permitted, because no-one seems to be talking about that, as well as the continuous oversight of Congress, some of whose members are making a great deal of noise now even though they were well informed all along.

    Regards, Jim

  186. “Since when did the Natty Review stop publishing, um, conservatism, and become a house organ for the Bush Inner Circle?”

    Quite a while ago. You only just noticed?

  187. So the Prez can spy on us without judicial overview. He can also declare us “enemy combatants” without judicial overview and have us thrown in prison either here or some overseas hellhole with no recourse to the courts. So how long is it going to be before American citizens are “disappeared”? Hell, for all we know it’s already happening. It’s all secret.

  188. So the Prez can spy on us without judicial overview. He can also declare us “enemy combatants” without judicial overview and have us thrown in prison either here or some overseas hellhole with no recourse to the courts. So how long is it going to be before American citizens are “disappeared”? Hell, for all we know it’s already happening. It’s all secret.

    Sssssshhhhh. Don’t say that, or you might get accused of being a hysterical Bush-basher!

  189. “I really do believe we are in a struggle that we could lose, meaning that eventually Jen would be wearing a burka.”

    Oh, give me a friggin’ break. Is your faith in the power of our military really so weak?

    “Yeah, but terrorism is a powerful tool against a coward. If you can make the technological giant wimper away because it is afraid of casualties, then in time the defeat of the giant is inevitable.”

    And we’re cowards?? What rhetoric and BS. I sure didn’t see much cowardice after 9/11 when most of the US populace (including myself) wanted the perpetrators’ heads. Another attack on US soil and you’ll see the same bloodlust again.

  190. Oh, give me a friggin’ break. Is your faith in the power of our military really so weak?

    Take it easy taiko. …The guy who said that, unless somethin’s changed, is in Afghanistan right now fighting the Taliban.

  191. …The guy who said that, unless somethin’s changed, is in Afghanistan right now fighting the Taliban.

    I appreciate what Kwais is doing, Ken, but that doesn’t free him from the need to explain the reasoning behind statements like “I really do believe we are in a struggle that we could lose, meaning that eventually Jen would be wearing a burka.”

    I’d seriously like to know how he thinks al-Qaeda can possibly invade and occupy our country. How many bombers do they have? How many warships? How many Army platoons? How many soldiers would they require just to occupy New York City, let alone the rest of the country?

  192. James Robbins in his NRO piece does information twisting to suit his need best he can, he did quite a great job dissecting the FISA section 1802, but omitted crucial parts that actually take care of the details that he fills with “can mean”. When in 1802(a)(A)(i) it says “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title” it actually means only 1, 2 and 3, not 1, 2, 3, 4, 5 and 6. International terrorism falls under 1801(a)(4) and is not covered by 1802(a)(A)(i). There goes the rest of the article down the drain.

  193. Ken,

    “The guy who said that, unless somethin’s changed, is in Afghanistan right now fighting the Taliban.”

    I understand that (I lurk here every now and then) and I respect him for that (although isn’t he a merc and not in the military?), but it doesn’t give him a pass to say anything and not get criticized for it. And being so, then he should know and comprehend the full power of our military better than the average citizen. I served in the military, my brother did, my dad served over 35 years and 2 tours in ‘Nam and my grandfather served over 20 years, survived Pearl Harbor and then fought in subs for the rest of WWII but I don’t expect “gloves off” treatment when it comes to my opinions because of that. Again, I fully respect what he is doing, but that doesn’t mean I have to tiptoe around his opinions. Just as he doesn’t have to around mine.

  194. Kwais,

    BTW, despite my disagreement with your opinions, I do wish you and those with you over there and in Iraq all the best and that you all come home safe. I still have many friends serving, some in Iraq and sofar, knock on wood, none of been harmed. Remember “Peace through superior firepower”!

  195. although isn’t he a merc and not in the military

    Apparently he’s still a federal employee, but under a different agency that he can’t/won’t name. That’s the gist I get. Maybe I’m wrong and he works for a private military contractor, but from a few things he’s said I get the impression that he works for an agency that he can’t name.

  196. I appreciate your concern–I also question whether the Taliban could ever get you into a burka.

    …But I think it unlikely that Kwais thinks our military really so weak. …and I imagine that if in my day to day life, I was surrounded by people who thought they could force you into a burka and who, for whatever reason, thought terrorism really did effect everyday life here in the USA, well, I imagine I might think that that was what I was fighting against.

    I have little faith in the strategy or logic of the Iraq War, but the logic behind the War on Terror seems clear to me. There’s no question in my mind but that the Taliban would love to get you into a burka, Jennifer. …and if Kwais is fighting those guys, it seems strange to suggest that he isn’t fighting against their objectives, no matter how unlikely.

  197. But I think it unlikely that Kwais thinks our military really so weak

    Then how else can one interpret “I think we can lose this war, and it’s possible American women will be wearing burkas”? I’m pretty sure Kwais wasn’t referring to some future where I CHOSE to wear a burka because it was considered high fashion–he was talking about me being FORCED to wear one. How will this happen?

  198. thoreau,

    When the FBI becomes the KGB you’ll be hauled off to prison for Kafkaesque reasons. Your hyperbole must be the result of the inhalation of too many fumes at work.

    Seamus,

    Adams responded to the French threat (in the Quasi-War), and he prosecuted conduct which, under the prevailing jurisprudence of his time, was not recognized as having First Amendment protection (despite the claims of the Jeffersonians), but he never tried reading the mail of his fellow citizens.

    Sure he did, how do you think Adams learned about the attempted coup d’etat during his Presidency?

    As best I can see, Durand wasn’t a decision by the Supreme Court.

    I never claimed that it was a S.C. decision.

    But in any event it appears that the case has nothing to do with the asserted power to make war generally…

    I also never claimed that it did, nor have I ever claimed that the President does have such power; again, it concerns a claim of inherent national security powers, including the “rescue” and “protective intervention” powers.

  199. There was a time when some Communists believed that we would someday live under a world wide Communist system and that such an end might come about by way of some good old fashioned expansionist aggression. …Looking back, I think that outcome was highly unlikely, but that doesn’t mean that whoever was fighting against those Communists wasn’t fighting against their objectives, once again, no matter how unlikely.

    Kwais should, obviously, answer these questions himself, but I suspect that he might be concerned about the War on Terror winding down for lack of support back home. …That we might have to fight this war again, only elsewhere. …That we might open the door to more 9/11s, etc. …But that’s just a guess on my part, like I said, Kwais can defend himself.

  200. Thoreau,

    “Apparently he’s still a federal employee, but under a different agency that he can’t/won’t name. That’s the gist I get. Maybe I’m wrong and he works for a private military contractor, but from a few things he’s said I get the impression that he works for an agency that he can’t name.”

    I appreciate the clarification. I wasn’t being judgemental, just wanted to know out of curiosity.

    “Then how else can one interpret “I think we can lose this war, and it’s possible American women will be wearing burkas”?”

    I concur with Jennifer. This statement is pretty unambiguous to me (especially the first part).

  201. I’m pretty sure Kwais is a Marine officer, based on a previous thread conversation.

    Or at the very least, that he was one prior to all of this other RUMINT I’m hearing about him being a mercenary or “a federal employee, but under a different agency that he can’t/won’t name.”

    And I think that he’s right about what he’s fighting against. Plenty of people died before found the will to actually (gasp!) field forces against those bastards.

    To claim that their stated goals don’t include Jen in a burka is a bit like thinking that if you put a towel over your head, the bad guys won’t be able to see you to attack you. It’s equally obtuse to think that Kwais isn’t contributing to the prevention of those goals.

  202. It’s equally obtuse to think that Kwais isn’t contributing to the prevention of those goals

    Actually, the goal of putting Jennifer in a burka is probably unattainable. …and there’s nothing obtuse about Jennifer, or anyone else, pointing that out.

  203. To claim that their stated goals don’t include Jen in a burka is a bit like thinking that if you put a towel over your head, the bad guys won’t be able to see you to attack you.

    Rob, the issue is not, “do they want me in a burka;” the issue is, “do they have the ABILITY to force me to wear one”? And I am saying no, they don’t and they won’t. Do you disagree? Do you actually think al-Qaeda is capable of successfully invading, occupying and taking over our country?

  204. “And I am saying no, they don’t and they won’t. Do you disagree? Do you actually think al-Qaeda is capable of successfully invading, occupying and taking over our country?” – Jennifer

    No, I don’t think that al Qaeda’s forces are going to occupy the US anytime soon.

    But I still think that people like Kwais are necessary to dissuade them from attempting that. If we were to stand down the DoD, or even just pull all of our forces back to the US, do you think that would or would not embolden the kind of people who would gladly kill you for not wearing a burkha? Do you or do you not believe that they see you as a legitimate target at worst, or at best, an acceptable casualty if they can strike at the US by wiping out a major landmark?

    “Actually, the goal of putting Jennifer in a burka is probably unattainable. …and there’s nothing obtuse about Jennifer, or anyone else, pointing that out.” – Ken Schultz

    But the objective of killing her and a bunch of her fellow citizens obviously is not.

  205. “Actually, the goal of putting Jennifer in a burka is probably unattainable. …and there’s nothing obtuse about Jennifer, or anyone else, pointing that out.” – Ken Schultz But the objective of killing her and a bunch of her fellow citizens obviously is not. – Rob

    Rob, there is no way that this or any other administration will ever, ever make it impossible for a group of determined, suicidal fanatics to “kill me and a bunch of my fellow citizens.” But how many civil liberties are you willing to give up while the government tries?

    So again, how do you interpret Kwais’ comments that these people are going to put me in a burka?

  206. “So again, how do you interpret Kwais’ comments that these people are going to put me in a burka?”

    dunno. twisted teen sexual fantasy? πŸ˜›

  207. Given human history and the rapid fall of might powers we see throughout it, it is indeed quite possible that a bunch of Islamicists could take over the U.S. given the right circumstances, etc. Nipping problems in the bud can help alleviate us from such a possible future scenario.

  208. Re: Jennifer and the burkha

    I’m just curious: what makes so many of us so sure that al-Qaeda has any interest in our society? What leads us to the conclusion that bin Laden cares about the actions of a woman in New England? Does al-Qaeda want Wu Ming of Canton to wear a burkha?

  209. Al-Qiada’s goal never was to destroy or occupy America. 9/11 was about driving a wedge between us and Suadi Arabia and punishing us for having troops there. That’s why BL chose Suadi’s to carry out the attack. He has stated time and again his goal is to overthrow the House Of Saud. He’s mad because they let in U.S. troops and told him to bugger off during the first Gulf War.

  210. Sure he did, how do you think Adams learned about the attempted coup d’etat during his Presidency?

    I should have said, “without a warrant.” Or are you claiming that Adams opened mail without a warrant either?

    I never claimed that it was a S.C. decision.

    I never claimed you did. But what the hell is it? I can’t find it on the web, so if you’re going to cite it as any kind of authority, it would be nice to know exactly what kind of authority it carries. Maybe with an identification of the court, and a synopsis of the facts and holding?

    I also never claimed that it did, nor have I ever claimed that the President does have such power; again, it concerns a claim of inherent national security powers, including the “rescue” and “protective intervention” powers.

    “Rescue” and “protective intervention” refers to the power to send troops abroad to make war, in circumstances that don’t give Congress time to deliberate and act; it doesn’t have anything to do with reading people’s e-mails in the United States or listening in on their phone conversations.

  211. “Rob, there is no way that this or any other administration will ever, ever make it impossible for a group of determined, suicidal fanatics to ‘kill me and a bunch of my fellow citizens.’ But how many civil liberties are you willing to give up while the government tries?

    So again, how do you interpret Kwais’ comments that these people are going to put me in a burka?” – Jennifer

    Go argue with Kwais about it. I still think that he’s right, and that his efforts help to prevent both of those scenarios. But hey, I’m just a guy who has seen some of the transcripts from Islamic fundamentalists who specifically say that it’s their job to force the infidels learn to embrace the Muslim faith… Stick your head in the sand, or claim that it’s impossibloe to prevent, or whatever you plan on doing. I’m not going to worry about it until you’ve got enough of a majority to overturn current foreign policy.

  212. Stick your head in the sand, or claim that it’s impossibloe to prevent,

    So Rob, you’re claiming I was wrong when I said “it’s impossible to prevent suicidal religious fanatics from killing people if they really want to”? You think the government can in fact make it impossible for suicidal terrorists to commit acts of mass murder? How will they do this? And how many civil liberties will we have to give up?

    I also find it pretty funny, that the guy who thinks the government is indeed capable of keeping us perfectly safe accuses me of having my head in the sand.

  213. Perfectly safe, Jennifer? Hell no. And of course I never said that, but I realize it makes it easier to rail against something I didn’t say than what I actually wrote.

    Safer than when we lost civilian-laden jet aircraft, a paired set of major national landmarks and suffered damage to a third? Yes.

    And I think that the work being done by the military and other federal agencies certainly does make us safer. You’re saying that you honestly don’t think that?

  214. No, Rob, I don’t think that having the military in Iraq or the President gutting the Constitution makes us safer from people who would try to hijack jets in America. The government’s not doing security, but Security Theater. And taking far too much power for itself in the process.

  215. And that’s why I think you’re pulling an ostrich.

  216. Rob, admitting that the government can’t keep us completely safe is “pulling an ostrich?” Interesting.

  217. Just to clarify: “pulling an ostrich” means “refusing to admit a danger exists.” Whereas saying “the government can’t keep us perfectly safe” is ADMITTING a danger exists. And despite what anyone might feel better by believing, there is, as I’ve said before, no way ANY person or government can eradicate the threat of suicidal fanatics killing themselves and taking others along with them.

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