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"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, 19 December 2005

Topic: The Law

The Good Old Days Return

As reported by Nasser Karimi of the Associated Press, Monday, December 19, Iran's President Bans Western Music.

Mahmoud Ahmadinejad is at it again. Wasn't it just last week he said the Holocaust never happened, or was some sort of exaggeration? I think he called a myth. And didn't he also suggest Israel, if not wiped from the face of the map, should at least be removed from the Middle East and be reestablished in Europe? (Where? They have spare room in Slovenia?)

Now this - it's time to move the country back to the early days of the 1979 Islamic Revolution. Those were the good old days?

We're told that ditties like George Michael's "Careless Whisper," Eric Clapton's "Rush" and the Eagles' "Hotel California" have commonly accompanied Iranian broadcasts. Perhaps the "Hotel California" thing explains the seventy-six logons to Just Above Sunset from Iran in the last two years, and the two or more logons to the daily web log from Tehran each week - California Dreamin' and all that.

This ban is puzzling, but the AP item notes they had also played there a lot of tunes by the schlock jazz saxophonist Kenny G. You can get behind banning him. No problem.

In any event, the official daily paper over there said that Ahmadinejad, as head of the Supreme Cultural Revolutionary Council (think of Bill O'Reilly and the Christmas Wars), said this was now required - no more "indecent and Western music" on Islamic Republic of Iran Broadcasting. Enough is enough.

It seems western music, films and clothing are widely available in Iran, "and hip-hop can be heard on Tehran's streets, blaring from car speakers or from music shops." Who'd have guessed? And there seems to be a thriving black market for bootleg videos and DVD's of films banned by the state.

But they had an election. Ahmadinejad won convincingly, on a platform to clean things up. Of course Ayatollah Khomeini outlawed all music as "un-Islamic" back in the good old days, but then, after he was gone, you started to get a bit of light classical music on state radio and television. Things were slipping, and by the late eighties there were, of all things, a few public concerts. So this had to stop.

Ahmadinejad campaigned on a platform to confront "the Western cultural invasion" and promote Islamic values. And he won. So they move back to the good old days.

Well, the Fox News O'Reilly-Gibson effort to punish those who use "Happy Holidays" and not "Merry Christmas" in advertising and in the personal greetings of us all on the streets and in the offices and homes in America, and all the talk in congress about getting the FCC to expand its regulation of what we are allowed to see and hear beyond the pubic broadcast media to now include pay-for-access cable television and satellite radio (the new realm of Howard Stern), means we too want to return to the good old days. But that would be the Ozzie and Harriet fifties, not seventeenth-century Puritan New England, or so we all hope.

And that bring us to Martin Garbus, partner in the law firm of Davis and Gilbert. Time Magazine says he's "legendary" (in some circles) and "one of the best trial lawyers in the country." The National Law Journal says he's America's "most prominent First Amendment lawyer" - one of the country's top ten litigators. He's now involved a copyright infringement suit against that hip-hop fellow Eminem (Marshall Mathers). Garbus represents a composer, not the Mathers fellow. And yes, this cause would be moot in Iran.

He's also presently representing employees in a class action employment discrimination suit challenging Bush's "faith based" initiative, and flight attendants in a labor dispute against their union and American Airlines. He's busy. And there's much more at his bio - he represented Lenny Bruce against obscenity charges, handled the estates of Marilyn Monroe, Igor Stravinsky, John Cheever and Margaret Mitchell, and was the fellow who handled Mitchell case involving that parody of "Gone With the Wind." (He lost that one, as discussed in these page in 2003 here, and in 2004 here.) Along the way he's represented and advocated on behalf of Nelson Mandela, Vaclav Havel, Daniel Ellsberg and Andrei Sakharov. He's a big gun.

And he's worried about going back to the good old days. In an item co-written with Leonard Weinglass - one of the attorneys involved in the 1971 Nixon case where the administration then contended the president's powers as Commander-in-Chief at a time of even undeclared war overrode the privacy rights of citizens (domestic spying was necessary and legal) - he's say we're back there again.

That's here, and the New York Times headline from Monday, December 19, 2005 is, of course, Bush Says U.S. Spy Program Is Legal and Essential.

It's the same argument. "Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States." Except Bush is winning this time.

Nixon lost -
A unanimous Supreme Court (the vote was 8-0, with Justice Rehnquist recusing himself because he was in the Justice Department legal counsel's office when the domestic spying program was formulated), with Justice Powell writing the opinion, in United States v. U.S. District Court, unambiguously rejected any such notion, articulating a clear-cut admonition to those who would diminish the import of the Fourth Amendment by suggesting that domestic spying at the whim of the president would be permitted under any circumstances.
So the Fourth Amendment, insofar as it protects us all from unreasonable search and seizure, seemed like a good thing then. As the fourth of the first ten amendments, the basic bill of rights, they didn't want to mess with it.

Then there was the exception -
... in a single aside, the court noted that previous presidents had engaged in domestic surveillance without securing warrants as part of ongoing efforts to secure foreign intelligence (mainly involving counter-espionage efforts directed against German and Italian embassies and counsulated by the Roosevelt Administration) and that the Court expresses no opinion on such efforts. That opening led to the enactment of Foreign Intelligence Surveillance Act (FISA) in 1978, a bill sponsored by Senator Ted Kennedy of Massachusetts with the blessing of the American Civil Liberties Union. FISA established for the first time in our history a "court" that existed outside the framework of the Fourth Amendment, a secret court that most Americans don't even know exists. It has a single function: to authorize by way of issuing warrants at the request of federal agents, surveillance within the United States on a minimal showing that the target is acting on behalf of a foreign power and that the foreign intelligence to be gathered is necessary for national security. The courtroom itself is in a vault-like chamber, a windowless room on the top floor of the Department of Justice, guarded by military security. There are seven rotating judges. The Court meets in secret, with no published opinions or public records. Nearly all of those spied upon never knew they were under surveillance.

No one, except the FISA judge involved and the Department of Justice knows what is done. No one, except the government and FISA judge knows who the warrants are aimed at. There is no review by anyone, neither the regular federal Appellate Courts nor the Congress, of its decisions. Over 15,000 search warrants, permitting eavesdropping, surveillance and break-ins, have been sought by the government and granted. Although the FISA court is required to determine if there are enough facts to justify a warrant, only eight times has it ever denied a warrant sought by the government. The FISA statute specifically gives the FISA Court the exclusive right to issue domestic spying warrants and that power has been generously exercised. There are more warrants issued by the FISA Court than by the over 1,000 district judges who sit throughout the United States in the Federal system.
So every administration since 1978 has had this super-secret court available to approve domestic spying. In the Times item above, reporting on the Monday the 19th Bush press conference, you'll note the president was asked why he felt he had to bypass this court. Heck, no one else had a problem with it. The president said it took too much time and speed was of the essence, or some such thing. Of course the law allows the spying, by wiretap or whatever, to take place without a hearing, as long as within seventy-two hours the court is notified about what was done and allowed to review what was done. What's the problem?

And it's not like these guys deny warrants, as you can see in this table (discussed here). They deny virtually nothing.

Something is up when this is not sufficient. Did Bush Domestic Spy Program Eavesdrop On American Journalists? That's possible.

Is this program, outside the law, being used to compile an "enemies list?" As Newsweek reported in their June 6 issue -
The bitter debate about John Bolton's nomination to the United Nations may have called unwelcome attention to the spying practices of the National Security Agency. Bolton told Congress last month that he asked the NSA for the names of Americans in raw intel reports. NSA rules prohibit the agency from spying on Americans; if electronic eavesdroppers inadvertently pick up American names, the NSA is supposed to black them out before forwarding reports to other agencies. But analysts and policymakers can make written requests to the NSA for U.S. names, which the State Department says Bolton did 10 times since 2001.

The Senate Foreign Relations Committee asked for more information about Bolton's requests, but the administration refused, leading to last week's vote to delay Bolton's nomination. Meanwhile, the Senate intelligence committee's chairman, Pat Roberts, and its top Democrat, Jay Rockefeller, got a closed-door briefing on Bolton's NSA dealings from the deputy intel czar, Gen. Michael Hayden. The senators agreed Bolton's initial NSA requests for U.S. names were legit. But the normally collegial Roberts and Rockefeller couldn't agree on whether Bolton handled the names appropriately once he received them. In dueling letters made public, the senators aired their differences. Senator Roberts argued that Democrats called unnecessary attention to intel "sources and methods" by raising Bolton's NSA dealings publicly. Rockefeller complained that Bolton sought out a State Department official whose name was supplied by the NSA "to congratulate him" - for unspecified reasons - which Rockefeller said was "not in keeping" with Bolton's request for the uncensored NSA report. Roberts said this charge was ill founded.
Something was up with that. There was lots of talk the Bolton was using the NSA intercepts to get back at people he didn't like, and who he thought were giving him and the administration grief. But the records weren't released and the matter disappeared. But now? Those people could be reporters or anyone who was making waves.

The senate did not confirm Bolton, partially because of this matter, so the president used a "recess appointment," while the senate was out of town, to name Bolton to the UN post, where he will serve, with no possible review, until after the 2006 mid-term elections, when we have a newly formed senate and it is seated. Very odd, isn't it?

But none of this matters. As of Monday, December 19th, the president is saying he will continue doing just what he as been doing, bypassing any judicial review of this domestic spying, not bothering with warrants, in order to keep us safe and free. It's for our own good. Things have changed.

Martin Garbus -
What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers.

Nothing that has gone on before in this post 9-11 period, including the Patriot Act, will so drastically alter the rights of Americans to be free of governmental intrusion than a reversal of that landmark decision prohibiting government surveillance without a warrant.
But a reversal of the Nixon decision gets us back to the good old days. Nixon was piker compared to these folks.

As for Roberts, Scalia, Thomas, Alito and Kennedy deferring to the idea of an executive branch that should not be subject to the law, well, the new nominee, Alito, has already ruled in the Sixth Circuit that the president is kind of special in a way. Congress may pass the laws, but the president was inherently protected "from congressional pilfering." (That nomination had little to do with Roe v Wade, as you see.)

Besides, Congress Gave President The Authority To Spy On Americans - the Attorney General said so on the Today Show on Monday, December 19th, so it must be so.

Of course that's news to one senator -
Sen. Russell Feingold (D-Wis) responded to Gonzales' comments in an NBC interview this morning. "This is just an outrageous power grab," he said. "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States. "There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution. "The president has, I think, made up a law that we never passed," said Sen. Russell Feingold (D-Wis.).
Yep, he has, but what are you going to do about it, Russ? The game is over. The good old days (before Nixon's attorneys blew it) are back.

Posted by Alan at 14:51 PST | Post Comment | Permalink
Updated: Monday, 19 December 2005 14:59 PST home

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