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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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Monday, 23 January 2006
They Call It Stormy Monday, But Tuesday's Just The Same
Topic: Chasing the Zeitgeist

They Call It Stormy Monday, But Tuesday's Just The Same

Monday, January 23rd opened with this - "A British scientist says he has proven January 23 to be the year's lowest emotional point."

This fellow's name is Clifford Arnall and he's got this special formula - personal and seasonal factors all weighed against each other - bleak weather, debt versus monthly salary, the elapsed time since Christmas, the elapsed time since failure to quit a bad habit (think about your New Year resolutions), winter-time low motivational levels bumping up against the actual need to take some sort of action about this or that. And there are no holidays scheduled any time soon. (The next is Valentine's Day, which is the cause of tremendous anxiety and subsequent depression, self-reproach and guilt, of course.) He says his formula is valid for both the UK and most of the United States. He may not have "proved" anything, but he's clearly on to something. Some of us would argue Groundhog Day might be a better fit here, unless you live in Punxsutawney and own a concession stand.

But his day was the day Ford announced the plan to shed thirty-thousand workers in the next year or two, and close fourteen major assembly and parts plants. The idea is to make twenty-five percent fewer cars and trucks, and make car and trucks people might actually want to own. It is a matter of survival. The Windstar minivan wasn't going to save the company, and only the police and strange old men in baseball caps drive the Crown Victoria, which tends to blow up in a large fireball when tapped from behind, unless you buy the dealer-installed upgrade they've not publicized. Time to rethink all this.

This is bad news, made even more depressing with the note that only one thousand of the thirty-thousand jobs that will disappear will be Canadian Ford jobs, which might have something to do with labor costs there - the government picks up all the healthcare costs. It might have something to do with Ontario having the highest percentage of workers with college degrees in the industrialized world, or not. Both are advantages that have been pointed out in the pages before (see this last July). Still, the Ford announcement was a Clifford Arnall moment. Lou Dobbs on CNN was fuming.

But note this point-counterpoint -

White House Begins New Effort to Defend Surveillance Program -
President Bush today opened what amounts to a weeklong media blitz against criticism of the National Security Agency's warrantless eavesdropping program, calling it a "terrorist surveillance program" that had saved lives.

Mr. Bush hotly denied charges that he had done anything illegal by authorizing the warrantless eavesdropping program. "If I wanted to break the law," he told an audience at Kansas State University, "why was I briefing Congress?"

Earlier in the day, in Washington, Gen. Michael V. Hayden, who led the National Security Agency when it began the warrantless wiretaps, vigorously defended the program , though he acknowledged that it depended on a lower standard of evidence than required by courts.

"The trigger is quicker and a bit softer," said General Hayden, an Air Force officer who is now the principal deputy director of the new national intelligence agency, "but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates."

The standard laid out by General Hayden - a "reasonable basis to believe" - is lower than "probable cause," the standard used by the special court created by Congress to handle surveillance involving foreign intelligence.
Killing Me Softly -
... I'm down in the dumps, mostly because I am watching George W. Bush repeat his patented mantra for the 514,346th time. It's filled with lies, mischaracterizations and simple-minded gibberish, as always, and I'm watching it go out unfiltered, in its entirety, unchallenged by the media, no Democrats in sight, on every cable channel. I think they are personally trying to drive me crazy.

There is one new wrinkle. Regarding the illegal wiretapping, he just said, "it's amazing to me when people say I just wanted to break the law. If I wanted to break the law why would I brief congress?"

His masterful sound guy is there, compressing the sound, building the audience response to statements like that from a distant chuckle to a soft moan of appreciation, slowly ratcheting it up to a low roar until it reaches a crescendo of ecstatic, sustained hysteria. I think I even saw some rending of garments in the fourth row.

They are going to the 9/11 well again. They say that Democrats are sending talking points to Osama and giving aid and comfort to the enemy. Rove says we don't believe that the government should monitor al Qaeda's telephone calls. The next several months will be spent fending off accusations that if we don't let the president do anything he damned well pleases we are all going to die.

I don't know if it will work again. But I also don't know if I can take this campaign one more time. Five years of hearing the same thing over and over again and watching American sheeple fall for it over and over again is just too depressing. I can't tell you how much I'm looking forward to January 20, 2009 (and I'm of an age where rushing the future is no longer wise.) The day I no longer have to listen to one more word from this immoral, dishonest, incompetent, delusional prick will be the best day of my life.
That's the kind of day it was, and indeed, the news media dutifully repeated the Karl Rove talking point from his speech last Friday, where he said the Democrats simply don't want to monitor the bad guys making plans. The day was filled with Democrats, even the useless John Kerry, saying of course we do - but we want to do is sensibly, carefully, and methodically - not with a wholesale spying on everyone - and within the law and constitutionally.

This of course is a major miscalculation on the part of the Democrats. They seem to think people value their privacy, but they clearly don't - if the NSA wants to put a camera in their shower or record every telephone call and email and file it all, that's fine. Anything to get the bad guys. On the Fox News panel shows with "real Americans," on all the call-in radio shows, it's the same. If you have nothing to hide (and good people don't) then there's no problem. These people just wonder what the Democrats have to hide. Privacy is a loser of an issue.

And of course in the question-and-answer with General Hayden he said the constitution said searches just had to be reasonable - there was nothing in the Fourth Amendment about "probable cause" - those two words just aren't there and everyone knew it. He scolded the reporters. The administration was just being reasonable. He knew his stuff. The news media reported all this dutifully, and didn't note that those two words - "probable cause" - actually are there in the Fourth Amendment, in every copy. But you don't want to embarrass the guy, and if you catch him out and expose him saying something that just isn't so, well, then you're giving comfort to the enemy and the Fox guys - O'Reilly and Hannity - will be on your case, and America will turn away from you, and you'll lose even more advertising revenue. So that passed.

For many of this, this was another Clifford Arnall moment.

But then there is the refreshing new openness from the administration, as in this -
Move over, Oprah. President Bush is making himself into television's newest talk show host by featuring audience participation in his appearances.

Bush has been taking questions from audience members in recent speeches, and the White House says none has been prescreened even though the sessions are limited to invited groups. It's a throwback to the folksy style on the campaign trail that helped him win re-election and a departure from the heavily scripted speeches that were the norm last year.
So the startling news of the day was that the president, starting with this appearance at Kansas State University in Manhattan (Kansas), was going to talk unscripted questions. He was going to dazzle them with his openness and willingness to respond to anything they put to him. He'd show all the doubters he was quick on his feet (with his mouth) and in command of all issue.

Yeah, yeah, the audience was carefully screened and all his worshipers, but for once he didn't know the questions coming and hadn't memorized the answers. This was not exactly Question Time in the House of Commons, but you have to start somewhere.

How did that go? As a general rule, see Crooks and Liars for video. They have him here (Windows Media) and here (QuickTime), looking really bamboozled when someone asked him about the big hit movie about the two gay cowboys, "Brokeback Mountain" -
Q: You're a rancher, a lot of us here in Kansas are ranchers - I just wanted to get your opinion on Brokeback Mountain, if you'd seen it yet?

Bush: I hadn't seen it - I hope you go back to the ranch and the farms...
And what? Get out of his face? Maybe this unscripted thing wasn't such a good idea. Those of us who caught a bit of this noticed the woman who asked about the 12.7 billion dollars cut from education funding, particularly from the student loan program - how was this going to make anything better for the country? The answer? The funding wasn't really "cut." Things were "restructured." No one in the room was buying it. You can imagine the "Note to Staff" - do better audience screening, and no more university appearances.

Ah well. That wasn't nearly as odd as some other recent questions to the opposition.

You may recall that two weeks ago the singer and activist Harry Belafonte, almost eighty now, was in Chile and called George Bush was the "greatest terrorist in the world" (see this). Belafonte has been saying that a lot. He's not happy. And Sunday, on NBC's "Meet the Press," this came up. Tim Russert, the host and "owner" of the show, had as his guest the junior senator from Illinois, Barack Obama, a rising star in the Democratic Party - the man who gave that amazing speech at the Democratic Convention in Boston.

Well, Russert put two and two together. Harry Belafonte is black. Barack Obama is black. Neither supports Bush. Ask Barack Obama about Harry. Yes, Harry Belafonte is a private citizen with no connection to the Democratic Party, but, well, they're both black folk aren't they? Russert saw an opening (see the video here).

It was one of those all-you-black-folk-are-alike moments. Barack Obama was, pretty much, being asked to explain what's wrong with the black folks. Why don't they like George? Note here the only other time Russert questioned anyone about Harry Belafonte before was when he asked Colin Powell. Tim wants to find out what black folks are up to?

He might ask what Navy folks are up to - see the Wikipedia entry on Harry Belafonte (here). Harry Belafonte is a WWII veteran - Navy. He enlisted, voluntarily. And James Webb, secretary of the Navy in the Reagan administration, a Marine platoon and company commander in Vietnam, on January 18th in the New York Times here, was all over the administration for personally attacking decorated veterans who disagreed with current policy. Maybe it's a Navy thing, Tim.

Peter Daou here -
My question is, why? Why did Russert ask Obama in particular about the statements of someone who isn't an elected official, who doesn't speak for Democrats, who doesn't represent Obama, who doesn't represent the Democratic Party, who is entitled to his own opinion.

Why?

Since when does an elected Democrat have to answer for the words of a citizen, however outrageous those words, even if that citizen has a public profile? And what's the real motive behind bringing the Belafonte quote into a discussion with Obama? The guilt-by-association game between terrorists and Democrats has been in hyper-drive this past week...
Yeah, well, scroll down to one of the comments and you get an explanation -
People objecting to Russert's question are apparently not aware that all prominent black people get together at a meeting in Secaucus, New Jersey, every Wednesday afternoon to share fried chicken and watermelon and decide what all black people think that week. Russert, being the perceptive newsman that he is, knows about these meetings. That is why he asked the question.
That must be it.

Steve Gilliard here -
Obama, like too many liberals, try to play nice when asked stupid questions, which implies weakness.

All he had to do was ask: "Did you ask me that question because I was black? Because as I understand it, Mr. Belafonte is entitled to his opinion, and is alone accountable for it. When was the last time you asked a white Senator to account for the ravings of Pat Robertson, who unlike Mr. Belafonte, has the ear of the President and the national media."
That would have been cool.

Well, see this - a screen capture of Secretary Of State Rice, a black woman, being asked her reaction to Hally Berry, a black woman, winning the Oscar way back when. Tim just doesn't "get" black folk. (Rice did say film awards wasn't her area of expertise, but was polite about it. Tim didn't get it.)

It all pretty comical.

Ah well, race issues aside, the rules of political discourse have changed, Glenn Greenwald explains here.

Read the whole thing but see the end -
It is a despicable act of deranged hatred to call George Bush a "terrorist." But it is perfectly acceptable, even common, to accuse Bush's political opponents of being traitors, committing treason, being on "the other side" (i.e., with the terrorists), and pronouncing that they should hang. And there's one last rule you don't want to forget about. It's from Newt Gingrich, announced on Hannity & Colmes:

"I think it's quite clear as you point out, Sean, that from this tape, that bin Laden and his lieutenants are monitoring the American news media, they're monitoring public opinion polling, and I suspect they take a great deal of comfort when they see people attacking United States policies."

So, according to Newt, anyone who is "attacking United States policies" - what we in the United States used to call "criticizing the Government" - is now guilty of giving "a great deal of comfort" to Al Qaeda.

These rules seem very fair and evenly applied and I think we owe it to the country to be a little more diligent in complying with them. After all, if we don't stop with all of this criticism of the Commander-in-Chief, we might lose our freedoms.
But Glenn is not bitter, is he?

It's the day.

Posted by Alan at 21:09 PST | Post Comment | Permalink
Updated: Monday, 23 January 2006 21:13 PST home

Sunday, 22 January 2006
Where it all comes together...
Topic: Announcements

Redirection: Where it all comes together...

The new issue of Just Above Sunset, the weekly magazine-format parent site to this daily web log, is now on line.

This issue - Volume 4, Number 4 for the week of Sunday, January 22, 2006 - covers many topics.

In current events, you'll find items on the two birthdays, Martin Luther King's and Ben Franklin's (the three-hundredth), that consider their legacies, and what they might make of what we have now. Of course the big news of the last week was that we finally heard from Osama Bin Laden again, and that caused all sorts of turmoil, reviewed here with commentary. The remaining current events items cover what seems to be a constitutional showdown - just who gets to ignore the law and why - and the conflict between, on one hand, privacy and freedom, and on the other, security and comfort. Ah, it's just the usual big issues, with some exclusive observations from our friend in Europe.

"Our Man in Paris," Ric Erickson is back, but this time not with any slice of life in Paris, but with a real challenge to Americans.

Bob Patterson is back, as the World's Laziest Journalist reporting on car enthusiasts out here, and, as our Book Wrangler, telling us what's up in El Paso - he just returned.

There are four pages of Southern California photography - the world famous LA landmark (the big donut), for nature buff some intense bird studies, for fans of irony some very strange sign at the beach, and, as many request, a botanical study.

The quotes this week - given current events - are about the nature of the law.

Direct links to specific pages -

Current Events ______________________

King Day: 'His voice was like a furnace of optimism, trying to triumph over despair.'
Ben's Day: Things Have Changed
Perspective: Perhaps When You Are In The United States It Is Difficult To Have A Notion Of What Really Is Going On There
Dangerous Ideas: News From Abroad (Thursday's Osama Bin Laden Surprise, and More)
Constitutional Law: The Professionals' Views
Safe and Convenient: The Price of Security and Other Things

The International Desk ______________________

Our Man in Paris: Commentary on the War of Ideas

Bob Patterson ______________________

WLJ Weekly: from the desk of the World's Laziest Journalist - " ... rent a very fast car with no top and ... "
Book Wrangler: Alligators In El Paso And Other Texas Subjects

Southern California Photography ______________________

Randy's Donuts: The Quintessential LA Landmark
Shore Birds: A Little Hitchcock, A Bit of Aerodynamics
Signs Seen at the Beach
Botanicals: The Coral Tree

Quotes for the week of January 22, 1006 - The Law

From the photography pages...



Posted by Alan at 05:46 PST | Post Comment | Permalink
home

Saturday, 21 January 2006
Safe and Convenient: The Price of Security and Other Things
Topic: In these times...

Safe and Convenient: The Price of Security and Other Things

He's back, as we see here - "Embattled White House adviser Karl Rove vowed Friday to make the war on terrorism a central campaign issue in November..."

Oh, it'll be more than that. At a more basic level there are simply two views of the world these days, and the idea Rove is peddling is one side. This one view is clear and unified - we're all in mortal danger, and have been since the 1933 or so, as there are madmen in the world (it gets worse every year), the family as a unit is disintegrating (divorce, gay marriage, a finally this movie about these very strange cowboys), there are always so many more odd others with odd religions and funny foods and nasty religions (the Catholic Cult-of-Mary turned out to be mostly harmless, the Jews finally seemed okay to everyone but Michael Jackson after his trial, but there's always the next as now we have Islam), and all the statistics show a steady climb is church-going and a yen for authority - a "big daddy" who lays down the new law (such as it is) and tell us what's good for us, and tells us anyone skeptical or raising questions is in cahoots with those who want to kill us all. This is supported by the nexus of talk radio - Rush and his imitators - promoting how awful the world is and how everything is disintegrating, and suggesting tight control from the top is the only thing that will save us all. Simple. Effective.

The other view is hardly worth mentioning - the one about tolerance and experimentation and seeing what's new and thinking about things and figuring out ways to adapt to how things change all the time - and trying some of the funny new foods. That's a minority view, and Rove knows it. These are the people who fly to Paris to see the sights there and hear a new language and sip cognac and chat with "the other."

But most people are afraid, anxious, turning inward from all the things science has discovered and toward the "faith," and turning outward for someone to tell them he or she will stop all this change, and make the queasy feeling that things are spinning out of control stop too. Out here you'll find them at Main Street USA at Disneyland down in Anaheim, or in Las Vegas exploring the fake Paris with its half-size Eiffel Tower, where it's safe and not too strange, although it is pretty strange the in other ways.

The latest twist on this "make us all safe, please" yearning, oddly enough, comes from a new effort by those we elected to do that at any cost. This is a combination of agreeing to prove to the government you are really not a terrorist - because, after all, they assume anyone of us could be - and the Reagan legacy view that anything the government can do can be done far better and far more efficiently if done by private enterprise, because if profit is involved and money is to be made, competition drives effectiveness to the ultimate. Whether this is true or not is not at issue, as people generally have come to believe this is true.

Thus we have this (AP) - "Airline passengers who buy a pre-approved security pass could have their credit histories and property records examined as part of the government's plan to turn over the Registered Traveler program to private companies."

The idea is the private companies would run the background checks, not the Transportation Security Administration (TSA). You'd give the private firms fingerprints of all your ten digits and permission to check your credit record and all property records, bank records, insurance data, and any court documents - anything they can find. If you pass, and don't seem to fit the profile of anyone who would be in league with any terrorist, you'd get to breeze through airport security - you don't have to take off your shoes or unpack your laptop computer or any of that. Pay the fee, pass the investigation, and you become a "trusted traveler."

The curious thing is what Amy von Walter, a spokeswoman for the Transportation Security Administration said - the agency wanted to be able to identify a terrorist who wasn't already known to law enforcement or intelligence agencies.

That's novel. Let the private firms - in their quest to make big bucks - do what the law enforcement or intelligence agencies can't do effectively - identify the bad guys. This gives a whole new meaning to what Adam Smith called the "invisible hand" of competition that makes all things run well.

So we'd now have, after June 20 when the program starts, Registered Travelers. These are the people who are "certified safe," not by the government, but by private firms.

The AP reports a few of the private firms are a tad surprised by their new role in preventative law enforcement, and wondering what to do. You see, before these companies will be allowed to sell "Registered Traveler Cards" they have to demonstrate that they can somehow or other definitively determine if any particular applicant is, say, a member of some terrorist sleeper cell. The FBI and CIA and NSA and such do this sort of thing all the time. But it's new to these guys.

The AP notes James Dempsey, executive director of the Center for Democracy and Technology, said that the idea that commercial data can somehow be used to find a sleeper cell is "highly speculative." And Marcia Hofmann, an attorney with the privacy group Electronic Privacy Information Center, is cited saying it wasn't clear whether federal privacy laws would apply to the program - ''It sounds like they want private companies to be in the business of law enforcement and intelligence gathering."

Well, yes, they do. The Transportation Security Administration was stung bad last year with a test program the collected airline passengers' personal data without their permission or knowledge. They secretly gathered files on a quarter million people. That was "Secure Flight" - every time someone hopped on a plane you automatically run the name against government lists of suspicious names. That didn't work out so well. Lots of name sound alike - some three-year-olds came up and that sort of thing. So it is obviously better to make this "private," and not governmental, and make it voluntary - you agree these firms can know everything. The government does catch crap.

Yes, yes - private firms are sometimes hacked. Yeah, last year someone stole, from ChoicePoint, all the personal data on over a million federal employees with Bank of America charge cards. Stuff happens.

Should you worry? -
There's already a private company running a Registered Traveler test program at the Orlando (Fla.) Airport. Verified Identity Pass, which was started by media entrepreneur Steven Brill, charges $79.95 for the card.

Earlier this month, the company told the TSA that it tested whether commercial data services could authenticate that a person is who he says he is.

The results: ''We dropped the idea after fully testing it and finding that it had no security benefits and significant, almost show-stopping negatives,'' the company said in a document responding to the TSA's request for information.
That's not encouraging. Asking a private firm to operate like the old East German secret police does, of course, involve a learning curve.

But there's money to be made, so General Electric, ARINC and Iridian Technologies, and some airports, are lining up for contracts. If people want "authority figures" to keep them safe, and ask for that, and will even pay for it, you take their money. This is America.

But our friend, Ric Erickson, editor of MetropoleParis, sent an email to us here in Hollywood with this curious quote from the Transportation Security Administration - "We know that terrorists may seek to exploit the Registered Traveler program, and the program must be designed to thwart those efforts. Therefore, program benefits will change from time to time in order to make it more difficult for terrorists to anticipate our security activities. Further, TSA will not exempt Registered Traveler participants from random additional screening."

What? So what good is the whole program if, by revealing all and letting some for-profit firm says you're really not a terrorist, you still have to take off you shoes?

Ric: "Yes, but will they give you your money back - if you are a terrorist and have purchased an ID card in good faith." He notes this Google ad - "ID Card Solutions Custom ID Cards as low as .35 Each. Low Price Guarantee (Free Shipping) IDCard.Allid.com" - so you can make money on either side of this.

Ric also notes an item he found in Le Devoir about how the US government is bringing in ID cards through the back door. -
The problem is that they want to turn it over to private companies... So to travel abroad you'll need a passport, but if you don't go abroad you'll need one of these private ID cards - and if you want to skip the shoe search, you'll need the private card. You may get searched anyway, even having both passport and the ID card.

Apparently Canadians still don't need passports for US visits, but if they don't have one, they'll need these new private ID cards. Won't that be neat - the US accepting only its own ID cards? It'll also be a great way for keeping better track of Americans. Who are, as we know, almost all terrorists.

As I understand it, I am now required to get some new model passport if I want to visit the USA. My machine-readable passport is no longer good enough. And the other hand-made one has always been flaky. I could avoid it by getting a visa from the consulate but they cost something like $90 I think. Cheaper to get new paper with my eyeballs printed on it.

Anyhow, it's another good laugh for Bin Laden, if the dude even exists.
Interesting.

Anyway, Karl Rove is back, and he knows which way the wind is blowing. Shrink government, privatize everything you can, and trust that frightened, anxious people - most of us these days - will agree to most anything, and pay for it.

The Democrats had better run on some other issue. The Republicans will make the war on terrorism a central campaign issue, and they've won on that issue already.

__

Note:

Ric in Paris is wondering about all the news -
Do you hear Cheney? He said, "The United States doesn't negotiate with terrorists," in response to Bin Laden (allegedly) proposing to quit bugging the United States. All he asked for was the US to quit Afghanistan and Iraq. Man, I thought the US wanted to get out of those places. Is Cheney worried about his shares in Halliburton? Why is he so tight? It isn't as if it's his money.

But the world is doing okay. Disney is reported to be eager to buy Steve Jobs out of Pixar, sort of to pep up Disney's animation business. Apparently what they really want is the guy who runs Pixar, who used to be a Disney animator. The word is that Jobs wants to dump Pixar, pick up a cool six billion, and invest his ill-gotten plus values in the next generation of iPods - you know, the one with the 23" flat screen that fits in a pocket, has a 33.6 Mega virtual hard disk, GPS, telephone, video camera and the old MGM back lot built right in. Not announced last week at the Macintosh-MacWorld annual confest in San Francisco was the super new and ultra-mini new Mac. It fits inside a ring you wear on your finger and controls the entire Hollywood TV production so you can watch next season's TV serials on the inside of your closed eyelids while having triple-bypass surgery, with stereo surround sound and virtual nurses who strip to their Deadly Nightshade undies. It's pretty cool and insanely clever. When they get the one of two minor bugs ironed out of it, it'll be priced at $1.99 including tax, slightly higher west of New Jersey. Folks who are still paying attention will appreciate knowing that they should get their new iPods and ultra-minis in New Jersey before visiting France, because Jacques announced on Thursday that France was going to wrap atom bombs around the necks of dudes that mess with France or the euro. On account of this the price will be the same, 1.99 euros, which you should know is about 21 percent more that your limp greenbacks. Jacques gets that plus the 19.6 percent sales tax, so you see, things really are cheaper here. Taxes are a little higher though, but Jesus, this is France for Christ's sake!
And so it goes.

Posted by Alan at 10:13 PST | Post Comment | Permalink
Updated: Saturday, 21 January 2006 10:15 PST home

Friday, 20 January 2006
Constitutional Law: The Professionals' Views
Topic: The Law

Constitutional Law: The Professionals' Views

One contributor to these pages, our friend the high-powered Wall Street attorney with his office more than thirty floors above the hole where the World Trade Center once stood, studied constitutional law under the late Peter Rodino. Rodino, of course, chaired the committee that voted to impeach Richard Nixon. Rodino knows things, and they became friends. And as much as it would be good to have our Wall Street friend comment on the extraordinary events of this week - the administration presenting a completely unexpected interpretation of the constitution that argues the president need not follow any law he decides limits his actions - that is just not going to happen. Our friend's work precludes that (he's kind of busy), and he plays in two orchestras (see this, his photos of the green room at Carnegie Hall), and his daughter is on pins and needles waiting to see which college will accept her, and there are pressing matters with a few boards he chairs, and there's the pro bono work. Things will only get worse when, soon, his son starts to drive. So we must turn elsewhere to unpack this whole business.

Glenn Greenwald for the past ten years has been a litigator in New York, specializing in First Amendment challenges, civil rights cases, and corporate and security fraud matters. He will have to do. At his law site Unclaimed Territory, Greenwald explains, here, just what seems to be going on. What follows is an attempt to follow him through it all, taking the detailed professional view and putting it in layman's terms.

First of all there's setting the stage.

A month ago (December 22nd) the Department of Justice issued a five-page letter outlining its arguments as to why the President's NSA warrantless eavesdropping program was legally justified. That's here. Then the Congressional Research Service - independent and nonpartisan - on January 5th said that didn't seem to be so. That's here (.pdf format). Then on the 9th there was this (also .pdf format), a letter from fourteen big-gun lawyers and former government people saying this NSA program was clearly illegal - William Sessions who used to run the FBI, and Lawrence Tribe, the man who teaches constitutional law at Harvard, David Cole who does the same at Georgetown, from Duke, Curtis Bradley and Walter Dellinger, from the University of Chicago, Richard Epstein and Geoffrey Stone. That was pretty impressive. And Greenwald points to this, an index of all the arguments on the web that any way you looked at this, the executive order to the NSA to ignore the law and bypass the FISA court was illegal.

The response to all this "push back" saying the president had broken, was breaking, and vowed to continue breaking the law - and to Gore's Martin Luther King Day speech (see Things Have Changed in these pages) - came on Thursday, January 19th with the Department of Justice issuing a forty-two page letter explaining the administration's position. It seemed to be an attempt at clarification.

This long "letter" makes the original claims - the president can break any law he wants as the constitution says he's supposed to protect us, and the congress, even if they didn't realize it, said he could when they authorized him to invade Afghanistan and take "any appropriate action" to deal with any state that supported terrorists and any people or organizations who were terrorists.

But here's the kicker - Greenwald points out that, in addition to adding detail to these first two arguments, now there's a third - if it becomes necessary now the Department of Justice is prepared to argue that the controlling law - the FISA statutes that requires showing probable cause and obtaining a warrant before secretly tapping into the voice and electronic communication of US citizens - is itself unconstitutional. Any law the "impedes" the President's power to do what he feels is "appropriate" is, by its very nature, unconstitutional, as long as as the president says what he is doing is related in any way to the War on Terror. (Of course, he gets to decide just what is the related to the war on terror.)

This is a new one. Congress is acting unconstitutionally when it passes any law that "impedes" the president in his duties, as he defines them. Cool.

This Department of Justice letter is here. (Yes, it's also in .pdf format.)

From Greenwald's observations, there's this, what he considers the core argument - neither the law, nor the courts, nor Congress, nor anything else, can interfere with, limit or even review the President's powers -
"Because the President has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President's most solemn constitutional obligation - to defend the United States against foreign attack."
Greenwald's take? They're saying the constitution not only allows, but requires, the President to defend the country. Therefore, the President is empowered to do anything at all which he "determines ... [is] necessary to the defense of the United States from a subsequent terrorist attack," and any "interference" - whether from the law, the Congress, or the courts - is "impermissible."

Greenwald -
In order to defend Bush's eavesdropping program, the Administration is required to assert this position of presidential omnipotence. It has no choice. That's because the DoJ's principal argument as to why the President had the right to eavesdrop outside of FISA is that the Congressional resolution authorizing the use of force in Afghanistan and against al Qaeda (AUMF) implicitly granted the President an exemption to FISA - even though it did not mention eavesdropping or FISA - because the AUMF's "expansive language ...places the President's authority at its zenith" (p. 11) and thus "affords the President, at minimum, discretion to employ the traditional incidents of the use of military force" including within the U.S. and against U.S. citizens (p. 10 & 11) (President can use these powers "wherever [terrorists] may be - on United States soil or abroad").
What would Pete Rodino say?

More snippets from the document -
- "[T]he President's role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence." (p. 30);

- The President is the "sole organ for the Nation in foreign affairs" (p. 1);

- "The President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected"), quoting a concurring opinion from radical Executive Branch fanatic Judge Laurence Silberman) (p. 10);

- "[I]t is clear that some presidential authorities in this context are beyond Congress's ability to regulate" (p. 30);

- "Indeed, 'in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere'") (quoting Attorney General Robert H. Jackson) (p. 10);

- "Among the President's most basic constitutional duties is the duty to protect the Nation from armed attack" and the "Constitution gives him all necessary authority to fulfill that responsibility." (p. 9);

- the President's war powers "includes all that is necessary and proper for carrying these powers into execution" (p. 7)
This applies, Greenwald notes, "even in conflicts where, as the Administration concedes is the case here, no war has been declared by Congress (p. 26) (acknowledging the "important differences between a formal declaration of war and a resolution such as the AUMF").

Just call it a war and that will do? Seems so. No formal war declaration by Congress is required.

And as for this idea that congress is acting unconstitutionally when it passes any law that "impedes" the president in his duties, as he defines them, note these -
- Congress knew when it was enacting FISA that it "was pressing or even exceeding constitutional limits" (p. 19);

- "Whether Congress may interfere with the President's constitutional authority" to eavesdrop on Americans as part of the war against terrorists "poses a difficult constitutional question" (p. 29);

- "If an interpretation of FISA that allows the President to conduct the NSA activities were not 'fairly possible,' FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict." (p. 35).
So, as Greenwald sees it, "anything which stands in the way of George Bush's powers - which 'impedes' or 'interferes' with those powers - is now, according to the Department of Justice, unconstitutional."

That does seem to be the argument. And the logic is clear - even if the congress actually had specifically said, "Do what you must, George, but don't break the law," it won't matter. They can't say that. They're not allowed to. That's unconstitutional.

Oh, and by the way, note here that Attorney General Alberto Gonzalez says no Special Counsel is needed to investigate any of this because he himself already looked into all this, and, golly, everything that was done and still being done is perfectly legal. Move on, folks. Nothing to see here.

Basically, the letter concedes the law is clear, and that the administration broke it and is breaking it, but the law is really unconstitutional and thus doesn't really matter much, if you think about it their way. The letter refers to "[t]he President's determination that electronic surveillance of al Qaeda outside the confines of FISA was 'necessary and appropriate.'" (p. 36, fn. 21). Trust him. Has he ever misled anyone or gotten anything wrong? And heck, he's determined.

In these pages, back in December, you'd find a discussion of the legal theorist behind all this, John Yoo, now safely back at UC Berkeley. But his theories live on - nothing "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." This is Yoo writ large.

Greenwald says "it is difficult to overstate how radical and consequential this development is."

Is it? Ric Erickson, editor of MetropoleParis, often tells me that, from afar, it seems to him the government here has taken the position that its citizens are the enemy, until they prove otherwise. There's something to that.

Things certainly are changing. And in this War on Terror, what next is "necessary and appropriate" - canceling the next presidential election?

Ah heck, keep us scared enough and we'll agree to anything.

__

Notes and Quotes:

Elsewhere, Greenwald, with no small amount of irony, quotes Bush's very favorite Supreme Court Justice, Antonin Scalia. That's this, Scalia's dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) -
"The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.

Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, ?8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.

As Hamilton explained, the President's military authority would be "much inferior" to that of the British King: "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.
When Alito gets there he'll take Tony aside and explain how things really work.

And one reader left this at Greenwald's site - "Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do." - J.P. Morgan

Ha!

Posted by Alan at 21:06 PST | Post Comment | Permalink
Updated: Friday, 20 January 2006 21:10 PST home

Thursday, 19 January 2006
Dangerous Ideas: News From Abroad And An Exclusive Essay From Paris - The Bad News Is That The West Is Going To Have To Think
Topic: In these times...

Dangerous Ideas: News From Abroad And An Exclusive Essay From Paris - The Bad News Is That The West Is Going To Have To Think

Thursday is the day for the weekly photo shoot for the weekend edition of Just Above Sunset, the parent site to this daily web log. But Thursday, January 19th was a day of far too much news, and news that deserves some comment. There will be time later to process the one hundred and thirty shots, to choose the best and edit those for web posting (some are really good and, as usual, many not so good).

The 19th was the day al-Jazeera broadcast an audio tape purporting to be by al-Qaeda leader Osama Bin Laden, and after analysis, it turned out to be him. He said he and his people are making preparations for attacks in the United States, but he is offering a possible truce to rebuild Iraq and Afghanistan - if we leave. We should save a lot of money and lives if we just went home. This was the first time in more than a year he's said anything at all (the last time was December 2004), and this new tape was released just after our airstrike in Pakistan - targeting his deputy, Ayman al-Zawahri, and killing a good number of civilians (including women and children). Well, the word now is we did get four leading al Qaeda figures and maybe one of them was al-Zawahri's son-in-law. Close enough. But the word is this new tape was made in early December, so he's not commenting on that.

Curiously Osama Bin Laden did an Oprah Winfrey thing. He recommended a book - "if you are sincere in your desire for peace and security, we have answered you. And if Bush decides to carry on with his lies and oppression, then it would be useful for you to read the book The Rogue State."

That's by William Blum. He said the introduction of the book has this: "If I were president, I would stop the attacks on the United States: First I would give an apology to all the widows and orphans and those who were tortured. Then I would announce that American interference in the nations of the world has ended." Unfortunately, the Associated Press here reports that's actually from another book by Blum, Freeing The World To Death: Essays on the American Empire (2004). Close enough.

BBC provides a full text of the message here, translated of course, including what this truce business is about, a "long-term truce with fair conditions that we adhere to. ... Both sides can enjoy security and stability under this truce so we can build Iraq and Afghanistan, which have been destroyed in this war. There is no shame in this solution, which prevents the wasting of billions of dollars that have gone to those with influence and merchants of war in America."

The AP tapped Jeremy Bennie, a terrorism analyst for Jane's Defense Weekly, who sad bin Laden appeared to be "playing the peacemaker, the more statesmanlike character" with his offer of a truce - "They want to promote the image that they can launch attacks if and when it suits them. They want us to believe they are in control." They got a comment too from Richard Clarke, the former White House anti-terrorism chief who ruffled so many feathers - "the initial significance of this (tape) is that he's still alive" but "the only new element in his statement is that they are planning an attack soon on the United States." He adds, not helpfully, "Would he say that and risk being proved wrong, if he can't pull it off in a month or so?"

Oh great. And this is only part of the message. Al Jazeera only released the "newsworthy" part of what they say is a much longer message.

What prompted this from Osama Bin Laden now? -
... what prompted me to speak are the repeated fallacies of your President Bush in his comment on the outcome of the US opinion polls, which indicated that the overwhelming majority of you want the withdrawal of the forces from Iraq, but he objected to this desire and said that the withdrawal of troops would send a wrong message to the enemy.

Bush said: It is better to fight them on their ground than they fighting us on our ground.

In my response to these fallacies, I say: The war in Iraq is raging, and the operations in Afghanistan are on the rise in our favor...
He doesn't like logical fallacies? He also mentions he doesn't think much of the plan to bomb the head office of al Jazeera in Qatar, after we bombed the offices in Kabul and Baghdad. He doesn't like our taking wives and children hostage to get his guys to talk, and didn't think much of our use of white phosphorous and all the rest. He's not happy. He suggests we agree to this truce or some really bad things will happen here. But he gets his answer here - "Vice President Dick Cheney dismissed Osama bin Laden's offer of a truce today - calling it 'some kind of a ploy' - and said it is not possible to sit down and negotiate a settlement with al Qaeda." Cheney is the final word. Bush was riding his bicycle.

What to make of this new statement from Osama Bin Laden?

This is good for the administration. The Evil One says "BOO!" and the Patriot Act gets made permanent and the whole wiretapping thing is forgiven, and the Republicans sweep the mid-term elections. If nothing happens the administration claims what they do keeps us safe, and if something happens, they claim we need them more than ever. Ah well.

Over at Time Magazine we get this, it's just an internal turf war over there -
Despite directly addressing Americans, its primary purpose may nonetheless be to remind Arab and Muslim audiences of his existence, and to reiterate his claim to primacy among the Jihadists....

[I]n the year of Bin Laden's silence, he has begun to be supplanted as the media face of global jihad by Musab al-Zarqawi, whose grisly exploits in Iraq grab headlines week after week. Not only that, Zarqawi may even be running operations abroad.... Although Zarqawi two years ago swore an oath of loyalty to Bin Laden, he is believed previously to have had something of a competitive relationship with the al-Qaeda leadership. And the public statements attributed to Zarqawi and those of Ayman al-Zawahiri have been noticeably at odds over questions of beheading kidnap victims and of wanton violence against Shiite Muslims. Zarqawi may have embraced the Qaeda brand with Bin Laden as its figurehead, but his essentially autonomous field operation in Iraq has become the movement's center of gravity.
So it's jealousy. Here's it's just blithering fear, the kind that drives out measured discourse and makes us all beg the administration to do anything to keep us from dying.

That essay from Paris? Ric Erickson, editor of MetropoleParis, elsewhere in these pages (see Perspective: Perhaps When You Are In The United States It Is Difficult To Have A Notion Of What Really Is Going On There) had some things to say about where others in this world see us headed with all this, and how they really want us to be the land of freedom and democracy, even as we're intent on throwing those away here at home, to be "safe."

This, from Paris -
Cassette Blues

PARIS - Thursday, January 19, 2006 - Since 9/11 I have been astonished at the seeming ease with which fundamental elements of the constitution have been trashed and overturned in the name of a 'war' against an enemy of ideas.

For what is behind Islamic-based terrorism directed against western targets other than a 'war' of ideas, of ideals?

The defense against ideas does not require laws for dealing with your own citizens as if they were potential terrorists. After all your own citizens are supposed to be on your side.

So it seems, in this 'war,' that the United States has gone about it in the wrongest ways possible. This was something the government decided to do - not the people - and the government decided it needed extraordinary powers for - for the 'defense of the west.'

As we have seen the government's policies and actions, instead of 'defending the west,' have produced an opposite result. Afghanistan invaded for scant purpose. Iraq invaded for even less purpose. Civil liberties reduced at home, based on a fictitious 'war.' Fictitious because it has no plan, no purpose, and is conducted against the wrong people - that is, mostly ordinary people who are not engaged in a 'war' with the west.

As a reminder, this is how the 'battle with world communism' was fought. It was assumed that communism was a danger to the west because - what? It was dangerous? It was stronger? It was a better idea? Its ideals were attractive?

Some people would say that communism collapsed as a result of the onslaught of Coca-Cola. In reality communism fell down because of its own internal contradictions. While attractive socially as an ideal, communism doesn't work because people aren't ideal. There is no way to achieve 100 percent full-time idealism by everybody. So that all-powerful enemy bit the dust, not thanks to being surrounded by iron, but by history.

Here it is useful to also recall that communists were not considered to be stupid or uneducated. They had a wishful ideal that didn't work, and turned out to be indefensible. The west 'won' by default.

It was not a sure thing, according to the politicians. There was a constant fear that communism would prove so irresistible that Americans would forsake Disneyland for the considerable charms of the Black Sea. More wishful thinking that didn't happen.

Today's situation is radically different. There is a small group of people in the world who have declared 'war' on western ideals. This is not based on the notion of economic unfairness or envy, but on a moral stance that has decided that the west is rotten and corrupt from top to bottom - that the west is in moral error.

For all anyone knows it may be true. But that it is proposed by people who are religious fundamentalists, that it proposes that all of mankind adopt the same religious attitude - that of the 15th century - one of ignorance and intolerance. It is not one that is likely to find many takers unless they are still, already in the 15th century.

As such it hardly seems that its message could be compelling. How do you convert folks back to the past? Wilder versions of the Christian right seem to have this as a goal too. But look at it. If it worked in the 15th century we nevertheless grew out of it and we are wherever we are today. We aren't going back.

So, then, there still is this 'war.' Does anyone think it will be won with guns? Bombs, smart bombs, missiles, atomic submarines, bombers, laser, radar, satellite positioning, bam, bam, bam, rata-tat-tat?

The bad news is that the west is going to have to think. This is a 'war' that will be won with ideas. If the west is all so superior, ideally and morally, it is not only going to have to defend itself with ideas, it is going to have to have ideas that are better than theirs in order to prevail.

Don't tell me this is impossible. Don't tell me the only way to do it is to junk the constitution. Don't tell me you have to suspect all Americans of being on the enemy's side. Don't tell me to fear - stop telling me bullshit.

Most of all, stop telling me that GW Bush is the supremo in this war. Tonight's TV-news reported the story of a new audio taped message by Bin Laden. In the middle of the news another story was interrupted to say that the CIA had confirmed the authenticity of the tape. Audio tape is yesterday's technology. Bin Laden just tossed a 50-cent bomb at the west and hit a media bull's-eye. The guy isn't even afraid to think.

It may be late, but it's never too soon to wake up. Light the fucking lightbulb!
Enough said.

Many of us are tired of being told to be afraid. And we want our country back - the one based on some pretty good ideas. We think those ideas can win this thing.

Ric's essay will be published as a stand-alone page in this weekend's issue of Just Above Sunset.

__

Note:

Other news buried by the Osama Bin Laden statement?

There's this (Reuters), from the land of the cheese-eating surrender monkeys - "France said on Thursday it would be ready to use nuclear weapons against any state that carried out a terrorist attack against it, reaffirming the need for its nuclear deterrent." Heads are exploding on the conservative right in America. Now what do we call those Freedom Fries?

In Baghdad, two coordinated suicide bombings - in a crowded street and in a café - killed fifteen more people (see CNN here). But things are going well.

After not much of this recently, a suicide bomber messes up a whole lot of people in the middle of Tel-Aviv, and as Knight-Ridder puts it dryly, Suicide Bombing Poses Challenge To Acting Israeli Prime Minister. No kidding. Ariel Sharon has not come out of his coma. He won't. Everyone knows that. Israel is "on hold" at the moment. Who knows what to do?

Then there's this from Eric Lichtblau in the New York Times -
WASHINGTON, Jan. 19 - The Bush administration today offered its fullest defense of the National Security Agency's domestic eavesdropping program, saying that congressional authorization to defeat Al Qaeda after the Sept. 11 attacks "places the president at the zenith of his powers in authorizing the NSA activities."
Short form? He's allowed to break the law. That's his job.

From Ric in Paris -
From his zenith the only way is downhill. Yeah, it means he has gotten as high as he's ever going to get.

Notice that it was quite some time ago. Where is he now?
Short answer? Thirty-nine percent.

And there's this from Ezra Klein -
I do like this new policy of honest arguments from the White House. Used to be that they'd do bad things and lie, distort, and spin their way out. Now they just suggest their critics are traitors helping the other side, respond to allegations of domestic spying by saying, essentially, "damn right we're spying on you," open McCarthyesque investigations into whoever leaks their illegal secrets, and justify their actions on the theory that the president can do as he damn well pleases. It's refreshing. And so's the paper, which simply reprises arguments the Congressional Research Service report demolished weeks ago. Such a Focaultian willingness to deny the authority of legal experts is a welcome display of postmodern thinking from an administration all too often trapped in absolutes. As I said, refreshing.
As Ric says, we're losing something here. And here, ace attorney and legal analyst, Dahlia Lithwick, explains what to expect when Judge Alito ascends to the Supreme Court - an analysis of his rulings, his writings, his answers in the nomination hearings. Short form? The president's allowed to break the law. That's his job.

And a new wrinkle here - "The Bush administration, seeking to revive an online pornography law struck down by the US Supreme Court, has subpoenaed Google Inc. for details on what its users have been looking for through its popular search engine."

Logoff. Now.

Then there's just odd news, like this - "VATICAN CITY, Vatican City (UPI) -- The official Vatican newspaper has published an article praising as 'correct' a recent U.S. court decision that intelligent design is not science."

What? The judge in the Dover Pennsylvania case issues a long, reasoned, clear, and even elegant ruling that you cannot teach "intelligent design" in science classes in public schools, as it's not science. And the Vatican agrees? Darwin is just fine with them? That's is exactly what the full article reports. Heads are exploding on the conservative right in America. The Catholic Church hates abortion, and they thought they could convince this new pope to give up on his opposition to the death penalty and his opposition to wars. He's German, after all. Now this? It's amusing.

And in the background the issue with Iran and its nuclear ambitions is still there. Note Fred Kaplan here -
What to do about Iran? The mullahs seem intent on acquiring a nuclear arsenal. Everything they've been doing lately - enriching uranium, spinning centrifuges, really just about anything they could do short of actual bomb production - is legally permitted under the Nuclear Non-Proliferation Treaty (a serious problem with the NPT these days). The Bush administration is pushing the U.N. Security Council to impose sanctions. But Russia and China would likely veto the motion, owing to the former's massive investment in Iranian reactors and the latter's heavy dependence on Iranian oil. The entire industrialized world is leery of economic confrontation for this same reason; Western Europe and Japan get 10 percent to 15 percent of their oil imports from Iran. As for a military strike on Iran's nuclear facilities, two objections stand out, among several others: It would be very difficult (the facilities are scattered, some buried deep underground), and it would be widely regarded as premature at best (even the most pessimistic intelligence estimates don't foresee an Iranian bomb for at least a few years).

Still, it's too risky simply to shrug and to hope for the best. Iran's new president, Mahmoud Ahmadinejad, has openly expansive ambitions across the Middle East, not least to "wipe Israel off the face of the map." Some political scientists have argued that the spread of nuclear weapons is a good thing, that it makes countries more responsible. Could anyone still argue that the theory, dubious enough in general, applies to Iran? Maybe a nuclear Iran could be "deterred" or "contained," but even that's a gamble.
He goes on to say there's just no good solution to the problem, and cites why, and asks his readers if they can think of anything. If you have any ideas click on the link and write him.

Thursday, January 19, 2006, was quite a news day.

Posted by Alan at 21:00 PST | Post Comment | Permalink
Updated: Thursday, 19 January 2006 21:21 PST home

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