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Photos and text, unless otherwise noted, Copyright 2003,2004,2005,2006 - Alan M. Pavlik
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Consider:

"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"







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Saturday, 17 December 2005

Topic: Breaking News

Saturday Showdown: The Illegal Is Justified

"The illegal we do immediately. The unconstitutional takes a little longer." - Henry Kissinger, The New York Times, October 28, 1973

Yes, you don't have to be a weatherman to know which way the wind is blowing.

Elsewhere, in The Founding Fathers Superceded by John C. Yoo, digging under the disquieting events of the past week - from revelations that the military is keeping files on domestic dissidents (even Quaker grandmothers), to the administration agreeing to the McCain effort to state, flat out, we will not torture anyone, anywhere, to the senate refusing to extend the Patriot Act because it asked us to give up just too many of our rights, to Friday's news that the president had secretly authorized the National Security Agency (the NSA) to do domestic spying without bothering with warrants, ordering them to ignore a statute specifically regulating executive power - one could see something was up. A basic conflict was brewing, and it had to do the legal theory that the administration felt allowed any action the president took to be legal, no matter what statutes were on the books.

This is basic stuff, and the voices saying, "Now wait a minute," multiplied.

John C. Yoo was the Justice Department attorney who, from 2001 to 2003, provided the administration with the classified memoranda explaining why this "laws don't matter" approach was constitutional. As explained, that had two parts. The president's authority to override statute law derives from the 2001 congressional resolution authorizing the use of force to destroy al Qaida. Secondly, the congress, which passes laws, can only enforce them by either funding or not funding executive actions - they have no other legitimate power. As a corollary, the only other check on the executive's absolute power and autonomy comes every four years with the election of the president, where four years of unlimited authority are granted to the winner. It's an interesting theory.

In an email from Paris to here in Hollywood, Ric Erickson, editor of MetropoleParis, comments -
We survived 'voodoo' economics to get where we are - barely surviving. The question now is, can the United States survive Yoodoo law?

"The constitutional theory he espouses goes like this - neither the congress nor the judiciary (and by inference the laws they promulgate and interpret) have authority over an equal branch of government."

The axe cuts two ways. With the president having no authority over congress or the judiciary. Balances and checks. No branch more equal than any other.

"If anything rises to arguments before the Supreme Court on whether the administration acted unconstitutionally here and there - as in obviously breaking the law - these can be trotted out to explain things."

This is saying that the constitutional theories of a political hack - Yoo - carry more legal weight than the judicial opinions of the Supreme Court of the United States. If so, why have a Supreme Court?

I've said it before - lawyers are going to live a long time, have whole careers, with this mess. But what do I know?
Well, Saturday, December 17th, discussion of this theory jumped from the world of academics and legal scholars, and comments on the web, to the mainstream, with Scott Shane in the New York Times offering Behind Power, One Principle as Bush Pushes Prerogatives - "A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency."

So it's out there now. Do we have a "constitutional crisis" on our hands? Maybe so.

Here's some detail on authorizing the National Security Agency (the NSA) to do domestic spying without bothering with warrants, ordering them to ignore a statute specifically regulating executive power (skim if you're not interested). From Daniel J. Solove there is this analysis -
In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a "foreign power" or an "agent of a foreign power." 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the government must establish probable cause that the party's activities "may" or "are about to" involve a criminal violation.

FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be "solely directed" at gathering intelligence from "foreign powers" and there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 50 U.S.C. § 1802(a). The surveillance authorized by the President, however, involved U.S. citizens, thus making ? 1802 unavailable.

FISA also has § 1844, which provides that "the President, through the Attorney general, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence for a period not to exceed 15 days following a declaration of war by Congress." 50 U.S.C. § 1844. I don't know many details about the timing of the surveillance, but regardless of timing, the surveillance appears to have far exceeded the limited authorization in § 1844. The NY Times article suggests that the NSA may have engaged in wiretaps or other forms of electronic eavesdropping extending far beyond pen registers or trap and trace devices, which merely provide information about the phone numbers dialed.

Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I'm not an expert on the intricacies of the executive's military powers, so perhaps there's a justification. Thus far, however, the Bush Administration's "creative" interpretations of its legal authority to engage in surveillance, to detain enemy combatants, and to engage in torture seem to be just as "creative" as Bill Clinton's interpretation of what "sex" is.

Apparently, the President does have a legal rationale for his actions, but according to the NY Times article, it is classified. I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law. And please, no more "creativity."
President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law?

Saturday, December 17th he just said it was, so stuff it. Instead of the usual Saturday morning presidential address, usually taped the night before and carried here and there (and no one much listens to it), he gave the Saturday address live on national television, and he looked irritated, maybe angry. He was definitely in a bad mood. He said, yes, he had authorized the NSA to bypass the law, many times, and whoever leaked this to the Times was in deep trouble, and by the way, the senate blocking extension of the Patriot Act was irresponsible and dangerous and could kill us all or some such thing.

The Washington Post account of this curious out-of-tradition Saturday blast is here and the Associated Press version here -
President Bush said Saturday he personally has authorized a secret eavesdropping program in the U.S. more than 30 times since the Sept. 11 attacks and he lashed out at those involved in publicly revealing the program.

... "This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," Bush said.

... Appearing angry at times during his eight-minute address, Bush left no doubt that he will continue authorizing the program.

"I intend to do so for as long as our nation faces a continuing threat from al-Qaida and related groups," he said.
So that's that. In your face, wimps!

How about this -
This appears to me to be a true "line in the sand" moment for America, with a president openly and defiantly declaring himself ready to continue a program that legal scholars, members of Congress and - according to the Friday New York Times article that started this all - several NSA analysts themselves believe to be unconstitutional.

There appears to be no acknowledgement whatsoever of concerns voiced by critics of the program. There is the feeling in the air about all this - and perhaps it's just me - that we are being forced to a constitutional crisis by a president who no longer believes he needs to wear a mask to court public opinion. This reeks of raw will and power.
Well, it does bring matters to a head, doesn't it?

As for the legal theory underpinning this all, as noted in these pages, there are lots of implications. Josh Marshall here notes that this Yoo logic links back to the cave-in to McCain on banning torture - "By that reasoning the president must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper."

Yeah, lots of folks figured that out.

But here Marshall is just puzzled -
In his radio address today, discussing the NSA domestic wiretapping, the president said - "The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

How can this be true?

If I'm understanding this correctly, this program allowed the president to conduct warrantless wiretaps in cases where he could have conducted the same wiretaps with warrants by seeking a warrant from the FISA Court. If the wiretaps were against the "international communications of people with known links to al Qaeda and related terrorist organizations" then the FISA Court certainly would have issued the warrants.

So it's the same difference.
Is it? He could have got the warrants. Ordering the NSA to specifically not seek them is the "something else that is going on." It's a power thing, and his pride (and ego) are involved. That's where the anger comes from. He doesn't like limits. He's the president.

This is going to be interesting.

And two details deserve mention. In the Yoo item, there was a rundown on why the Times delayed publication of this NSA story - the right saying the Times published Friday to screw up the vote on the Patriot Act and mess up Bush, or that they wanted to make everyone forget the news of the successful elections in Iraq to mess up Bush, or (Matt Drudge) this was all tied to a new book the reporters had coming out soon. And on the left folks were saying the Times delayed publication to make sure Bush was reelected in 2004 - some sort of plot by Judy Miller? Paul Farhi in the Washington Post here addresses the matter in great detail, including the internal battles at the Times to publish earlier.

Bob Patterson, columnist in these pages, says -
How very gallant of the New York Times to wait until after the "accountability moment called the 2004 elections."

How can we ever thank that bastion of journalistic integrity for their display of patriotism?
It's a lot more complicated than that.

Secondly, this business about the president by the Yoo reasoning must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper, may be moot for an entirely different reason.

Lawmakers Back Use of Evidence Coerced From Detainees (NY Times) - "WASHINGTON, Dec. 16 - House and Senate negotiators agreed Friday to a measure that would enable the government to keep prisoners at Guantánamo Bay indefinitely on the basis of evidence obtained by coercive interrogations."

As you recall, Britain's highest court recently ruled that intelligence extracted by torture is not admissible in any British court. It never has been, but the Blair government argued when someone else does it, not the British, there should be an exception. There may be really useful stuff in what was "extracted." Tony got slapped down, and he was not happy. (Discussed last week in these pages here.)

We're going the other way. Senator Lindsey Graham was pushing this. And is winning the day.

See this in Newsweek as lobbying was underway -
... the Bush administration may still secure something of a victory in the Graham bill. According to an amended draft of the measure being circulated Thursday among the sponsors, Graham has agreed to language that loosens the restrictions on terror evidence that's obtained through "coercive" interrogations that may occur in other countries. Whereas Graham's previous draft had forbidden the use of such evidence - in accordance with standard rules of military justice - the new draft says that it should be barred only "to the extent practicable." The latest bill language also now says that the "probative value" of evidence should be considered - in other words, whether the information is persuasive.

In theory, this would permit U.S. military tribunals to use evidence obtained through torture or abuse in the prisons of other countries. The new Graham draft also adds more restrictions on the rights of terror detainees to sue or launch an action against the U.S. government outside of a narrow appeals process.

Wes Hickman, a spokesman for Graham, said he had no immediate comment on the negotiations. However, a Republican Senate aide who spoke on condition that he would not be named conceded that new language had toughened the bill. "There was a clause in the original bill that said the [tribunals] had to exclude any statements that were the result of torture or coercion. Now that's been changed to a 'consideration' clause that says the tribunal board must take into account the source of the information."

He contended the change had been requested by military judge advocates general.
It passed.

As noted here the Graham amendment already strips detainees of their right to file for habeas corpus. The amendment adopted by the senate did allow detainees to appeal tribunal findings to the courts, "but that doesn't get at one of the most important functions of habeas corpus: the right to ask why you're being held when the government has either held no hearing at all, or held one and found you innocent."

Like it matters?

Yes, we are holding people who have been found innocent by tribunals. We don't know where to send them now. Any spare rooms at the White House?

Anyway, this seem to be the first time we have allowed "the fruits of torture" to be admissible in any venue. We're not like the Brits.

And the administration is sitting pretty.

Posted by Alan at 12:55 PST | Post Comment | Permalink
Updated: Saturday, 17 December 2005 12:59 PST home

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