As seen from Just Above Sunset

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

Wednesday, 18 January 2006

Perspective: Perhaps When You Are In The United States It Is Difficult To Have A Notion Of What Really Is Going On There
Topic: Couldn't be so...

Perspective: Perhaps When You Are In The United States It Is Difficult To Have A Notion Of What Really Is Going On There

Tuesday, January 17, 2006, was Benjamin Franklin's birthday, and the item on that, Things Have Changed, was an extended discussion of the issue of the day, the contention by the White House that the constitution implicitly gives the president the "plenary power" to disregard any law that interferes with his duties as commander-in-chief. Those laws not only include the FISA law that requires court approval - an easily obtained warrant based on probable cause - to scan the email and telephone conversations of American citizens, but treaties that have the force of law, and most recently the McCain Amendment which the president signed into law with his own "signing statement" that he would indeed be glad to follow the law here, except when it limited his "plenary powers," and then he wouldn't. It is most curious.

Now the courts may one day laugh at these "signing statements" saying it's not his job to say what the law means - the congress enacts the laws and the executive branch implements and enforces them. The congress already said what the law means - that's in the statute - and if there's an issue, some ambiguity, the courts will decide "congressional intent." That's not his business and these "signing statements" could be ruled to be piffle (not a legal term, but close enough). But as many have pointed out (as here), Judge Samuel Alito, who will take his seat on the Supreme Court in February, since the early eighties has argued these "signing statements" trump what congress believes it enacted and whatever ambiguities the court untangles - the idea being such assertions of "plenary power" make the executive the cannot-be-challenged co-equal of the other branches of government. This is a novel view of the constitution, but now at least one on the Supreme Court will have argued that view openly for more than twenty years. The others on the court simply stopped the Florida vote count nearly six years ago and put the man in office.

These are interesting times, and as far as the "spying scandal" goes, all this is raising some concern. The man the court told to shut up and go home way back when, Al Gore, gave his Martin Luther King Day speech, riffing on how King was "bugged" and harassed and now something bigger and even more dangerous is afoot (transcript here). But no one pays attention to him. And as mentioned, there were the lawsuits - "Federal lawsuits were filed Tuesday seeking to halt President Bush's domestic eavesdropping program, calling it an 'illegal and unconstitutional program' of electronic eavesdropping on American citizens."

But even if civil libertarians and conservative no-preface libertarians have a problem with this NSA program - outside the law - the president says he will continue and no one can stop him from continuing, as he's just doing his job. And here you see middle-of-the-road political shows where big-time hosts say that if the president broke any laws, that's fine - "Yeah. Well, maybe that's part of the job."

There's a lot of that going around - people want a strong daddy who will protect them, and maybe do nasty things to the bad guys, things they don't want to know about, and they don't want a mommy scold - and folks just don't like details. The world's is a very scary place now, so they've been told, so all this is fine. Fear works.

Well, sometimes you need to step back and see all this from the outside. The day after Franklin's birthday, Ric Erickson, editor of MetropoleParis, sent along an email to the Just Above Sunset discussion group. Understand Ric was born in Canada, worked for many years as a journalist in Germany, and has been in Paris for a long time, and for years has kept his ear to the ground on things there. (And Franklin himself spent many years in Paris - coffee at the Procope and all that.)

From Paris to the Hollywood desk, Ric says he has a problem with this whole idea that all this is okay, as the president is "just doing his job" -

What IS his job exactly? I thought he was supposed to uphold the laws of the United States; not sign statements that he believes that he can ignore the laws and intends to do so.

It looks like disrespect to me. GW Bush is disrespecting congress, the senate, the courts - the whole caboodle. How can we tell our kids they shouldn't lie, cheat, rob, torture, rape and pillage when the president's attitude is - he can and will if he thinks it necessary?

Who does he think he is? The president of the United States is a citizen, subject to the laws of the land. He is not some kind of über-citizen. Look it up. There is only one class of citizen in the United States.

Nobody should bend on this. The FISA laws that have weasel clauses that allow near-nonobservance. He could have done it the legal way but he chose not to. What does this tell you?

From here it looks like the United States is in the process throwing its laws down the toilet. Excuse me - I mean GW Bush, the president of the United States, is saying that, as president, he does not have to obey the laws of the land. Sorry to repeat, but this is fundamental.

Remember that some laws are set by precedence. If BushCo keeps this up your constitution is not going to worth recycling as toilet paper. The presidential notions of the law will be cast in iron, rendering the congress and the courts impotent. Is that where you want to go?

If so, get it over with. Get ready to accept GW Bush as dictator.

If that's what he wants let him have it. The little democracy, the little freedom you had, kiss it goodbye. I hope you enjoy the 'security' it gives you.

If so, I'll tell you what those cute little backpacks are for. If you've got half a brain you'll keep one handy, packed with the bare essentials you'll need when the masked 'security' secret police arrive at 4:15 am to haul you away and stuff you into a secret dungeon, 'on suspicion.'

Not that they'll will need any reason. As someone who appreciates democracy you'll will be a threat to the state run by BushCo. You deserve to be disappeared. Get in the toilet and flush it.

Is that what this looks like from the outside looking in?

Our friend the high-powered Wall Street attorney, from his office high above the hole where the World Trade Center stood (he lost friends there and has no love for the bad guys), adds this - "I have now read your email several times looking for some point you might have missed. You hit them all."

Dick in Rochester recommends everyone read again It Can't Happen Here and A Nation of Sheep. (That second book was written by William J. Lederer in 1961, and he co-authored The Ugly American in 1958 with Eugene Burdick, curiously enough.)

But there was more from Ric in Paris, late Wednesday, January 18th -

Ironic coincidence is tonight's broadcast on Franco-German TV 'Arte' of a documentary about Germans who joined the French resistance during World War Two.

Either fleeing Germany after Hitler's rise to power in 1933, or deserting from the occupying Wehrmacht in France, German members of the resistance were relatively few but real all the same. At long last they have been officially honored in France. Germany, officially, still doesn't want to know. (Willy 'Weinbrand' Brandt is dead.)

This took a certain amount of reckless courage. To the Nazis the resistance was composed entirely of 'terrorists.' They bumped these off with scant ceremony, and were even swifter with Germans. By 'swifter,' I mean if torture was involved, it was better to be anything other than German. Germans if caught were treasonous terrorists.

All the same, the resistance won, and liberated Paris. (According to the documentary, Paris is the only city in WWII to have liberated itself.) Before the Liberation German members of the resistance actively encouraged soldiers to desert from the occupying force.

Today there are annual reunions in France, and a handful of Germans show up to take part in them.

Also today, in France, some people are careful to distinguish between Nazis of the occupying force, and Germans - as in, 'bad' Nazis and harmless Germans. Other people are not so careful.

Many people throughout the world believe in the PR of the United States, the notions of 'freedom' and 'democracy.' Even if they doubt a bit, they want to believe. If you lack one or both the notion is attractive.

Would they fight for it? It's fair to assume that people who have lived with a lack of freedom and/or democracy have a stronger appreciation of it, especially if they have tasted it. Especially if it beckons with a promise of economic possibilities.

Would somebody born into it risk their necks for it? If there was a danger of losing it? Or would they have to be plunged into a dictatorship before they would realize what they were losing - or had lost?

Perhaps when you are in the United States it is difficult to have a notion of what really is going on there. There is too much noise being made by the loudest squeaking doors for anybody to hear quiet determination.

I suspect that opposition to a dictatorship in the United States - the kind that can get rough, the kind that knows about organization, the kind that is used to being spied on - could be greater than is generally believed. You are, in face of the government, not alone.

Think about it. The government wants you to think that you are alone.

"What can I do?" "Can't fight city hall!" Divide and rule. Divide, divide, divide - until no neighbor can be trusted. Every man alone in his own lifebuoy, made in China, for an American company, possibly Wal-Mart.

You've got to get it into your heads that the Chinese lifebuoy is defective. The lifebuoy you need will be made in America. This is the lifebuoy everybody else in the world wants.

So the rest of the world is hoping beyond hope the someone here will stand up, and then another will, and then another, and stop this nonsense?

It would seem the American Dream, as diffuse as that is, and as betrayed as it so often is, is still important, even in France.

Ah heck, they helped us with our first revolution - there are hundreds of American town named Lafayette - and maybe they, and many others, don't want to see us throw this all away.

Let's see. How does it go?

Allons enfants de la Patrie,
Le jour de gloire est arrivé !
Contre nous de la tyrannie,
L'étendard sanglant est levé !

Aux armes, citoyens !

Ah, that's it. But that's so... French.

But sometimes you have allies you just didn't imagine you'd have, as in this press release, Wednesday, January 18th - Leading Conservatives Call for Extensive Hearings on NSA Surveillance; Checks on Invasive Federal Powers Essential.

It opens with this -

Patriots to Restore Checks and Balances (PRCB) today called upon Congress to hold open, substantive oversight hearings examining the President's authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA).

Former U.S. Rep. Bob Barr, chairman of PRCB, was joined by fellow conservatives Grover Norquist, president of Americans for Tax Reform (ATR); David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman and CEO of the Free Congress Foundation and Alan Gottlieb, founder of the Second Amendment Foundation, in urging lawmakers to use NSA hearings to establish a solid foundation for restoring much needed constitutional checks and balances to intelligence law.

Oh my! Grover Norquist is as right-wing as they come, and a buddy of Abramoff from college days, and Paul Weyrich is the founding president of the Heritage Foundation.

Well, the piling on has begun. They're traitors and not real conservatives. One of the milder comments here - "... every single one of the conservatives mentioned has been against the Patriot Act and related executive-branch efforts against terrorism from the word go. ... Their arguments for their civil libertarian positions strike me as almost all weak (or, in the case of Grover Norquist, who speaks only in generalities on these issues, non-existent)."

Nothing to see here folks. Move on. These aren't "real" conservatives. We misinformed you before. They don't matter now.

Then again, as Tip from Boston once said, all politics is local. And what Ric from Paris was talking about above comes home here, to Los Angeles, specifically to UCLA, a few miles west on Sunset.

Wednesday, January 18th brought us this in the Los Angeles Times -

A fledgling alumni group headed by a former campus Republican leader is offering students payments of up to $100 per class to provide information on instructors who are "abusive, one-sided or off-topic" in advocating political ideologies.

The year-old Bruin Alumni Assn. says its "Exposing UCLA's Radical Professors" initiative takes aim at faculty "actively proselytizing their extreme views in the classroom, whether or not the commentary is relevant to the class topic." Although the group says it is concerned about radical professors of any political stripe, it has named an initial "Dirty 30" of teachers it identifies with left-wing or liberal causes.

Sell your teacher. It's an easy hundred bucks.

What they're looking for is any criticism of the president, overt or subtle. You are welcome, one presumes, to report any science professor who teaches evolution as fact, or asserts that global warming is actually occurring (that's all a left-wing hoax). American history courses better reveal all the bad stuff about FDR turning America into a nation of victims who expect the hard-working to support their laziness. And on and on...

The thought police are out there now. And gee, if this is a success, we could see a program where you get a hundred bucks for turning in your parents.

Well, this is not a government program. It's just folks defending the president from... from the educated and skeptical. That sort of thing is discouraged. It's not illegal. Yet.

Maybe Ric in Paris sees things as they are, from that distance.

Posted by Alan at 20:00 PST | Post Comment | Permalink
Updated: Wednesday, 18 January 2006 21:37 PST home

Tuesday, 17 January 2006

Ben's Day: Things Have Changed
Topic: For policy wonks...

Ben's Day: Things Have Changed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But here's the core -

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

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

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

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

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

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

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

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

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

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

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

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

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

That speech is here -

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

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

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

And he's off and running -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here's an interesting comment from Josh Marshall -

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

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

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

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

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

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

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

Posted by Alan at 20:37 PST | Post Comment | Permalink
Updated: Wednesday, 18 January 2006 05:42 PST home

Monday, 16 January 2006

King Day: 'His voice was like a furnace of optimism, trying to triumph over despair.'
Topic: Race

King Day: 'His voice was like a furnace of optimism, trying to triumph over despair.'

Some thoughts, as this odd holiday draws to a close... Martin Luther King Day, Monday, January 16, 2006, was, as usual, low-key. Government offices, schools and the markets were closed, but most everyone was at work, and as with all holidays, there were the sales at the malls. There aren't many American holidays where folks attend to just what is being noted. Actually there are none, save, perhaps, Christmas Day. Easter is a Sunday so that is a different thing. The Fourth of July brings fireworks, so that's special. Thanksgiving is overeating and watching the Detroit Lions lose another game. All the others are just a day off, for some.

Here in Los Angeles we did have the King Day Parade in the Crenshaw District, kicking off the month-long celebration, in February, of African-American heritage, Black History Month. And our conspicuously Hispanic new mayor, Antonio Villaraigosa, said this, "I have said that if it were not for Tom Bradley, Martin Luther King and the civil-rights movement, I would not be standing here today. A good number of us sitting here - women and people of color - every one of us were blessed by the sacrifices and courage and the indomitable spirit of Rosa Parks and the courage of Martin Luther King."

Something did change in the sixties, and change again on April 4, 1968, when King was assassinated, and the riots followed. Something was getting fixed and then something was broken.

With this Martin Luther King Day we got, from Taylor Branch, his third and final volume of the King years, At Canaan's Edge: America in the King Years, 1965-68. This was the lead review in the Los Angeles Times Sunday book review. Anne-Marie O'Connor not only comments on the book, but got Taylor Branch on the phone.

Taylor Branch writes in this new book that at the time the war in Vietnam "was foundering" and antiwar sentiment was spreading, and the civil-rights struggle "was taking aim at the last vestiges of American feudalism, challenging segregation and the kind of institutionalized racism that fueled an FBI smear campaign against King." Yep, the FBI was all over him. And Taylor Branch says by phone -

Race was, and is, still scary to a lot of people. King's enemies knew that he spoke to a lot of people, and a lot of people agreed with him. He was mesmerizing, because of the timbre of his voice and his words. His voice was like a furnace of optimism, trying to triumph over despair. He defined something that was strong enough to offer hope in the face of suffering.

He was living in a time when people got lynched for almost nothing, and there was no expectation there was going to be justice. Black people were largely invisible. To be a symbol of that hope over despair is an amazing thing.

Yes. Some of us remember that, even those of us who were white kids in junior high at the time. And O'Connor quotes Clarence Jones, King's onetime attorney - "Taylor wasn't there. He was an outsider, a white Southerner. He never spoke to Mr. King. Here's this white Southern man gathering this meticulous scholarship, and you know what? He got it right."

Well, you look at things long and hard enough, and think about them, and sometimes you see what's really going on.

Branch began of course with Parting the Waters (1988) - a bestseller that won him a Pulitzer Prize. Ten years later was Pillar of Fire, and this new book warps it up. (In his spare time Branch ghost-wrote John Dean's autobiography, and co-wrote that basketball memoir with Bill Russell, the legendary and outspoken basketball star.)

Branch sees what's going on, as O'Connor notes -

The America that emerges from Branch's pages is on the razor's edge of history, and it could be cutting and ugly. King's demands for racial equality were met in Southern newspapers with grotesque cartoons whose smiling minstrels were the face of virulent hatred.

FBI agents slink around "At Canaan's Edge" like goons in a noir novel, spreading lies in a relentlessly hostile campaign to discredit him on every conceivable level, a far cry from the frequent Hollywood portrayals of civil-rights-era agents as white knights doing battle against an anonymous black backdrop.

One of the more dubious FBI smears was an attempt to portray him as an associate of Muhammad Ali. An FBI agent timidly pointed out the obvious: The plan might backfire because many people regarded the boxer as a folk hero. But his supervisors went ahead with the plan.

FBI agents wiretapped King's hotel room and phone conversations for years to record information about his infidelities, which they unsuccessfully tried to disseminate in the press. Branch says the FBI even tried to dissuade King from traveling to Oslo, Norway, to accept the 1964 Nobel Peace Prize by blackmailing him for his personal life. In Branch's eyes, the FBI was "blackmailing him toward suicide."

Well. James Earl Ray took care of things so it didn't come to that.

But the damage was done. King had started something.

Branch credits the King-led civil rights movement with "deepening democratization, providing momentum for the budding antiwar and women's movements," and "making gay rights imaginable."

King was writ large. He's echoing Jefferson and Lincoln as well as Isaiah and Jeremiah. He speaks on the shoulders of the prophets and the patriots alike. We don't hear that kind of language now, and if we did I think it would make us all better citizens.

Maybe so. But as for the civil rights movement with "deepening democratization, providing momentum for the budding antiwar and women's movements," and "making gay rights imaginable," is that a stretch?

Well, Taylor Branch says no, and argues that in his long assessment of King and his legacy, Globalizing King's Legacy, published in the New York Times on the holiday, and the following day in the Times' Paris newspaper, the International Herald Tribune.

Everyone has honed in on what comes near the end of the piece -

We could also restore Dr. King's role in the continuing story of freedom to its rightful prominence, emphasizing that the best way to safeguard democracy is to practice it. And we must recognize that the accepted tradeoff between freedom and security is misguided, because our values are the essence of our strength. If dungeons, brute force and arbitrary rule were the keys to real power, Saudi Arabia would be a model for the future instead of the past.

But there's more, and he uses the twentieth of these "official celebrations" to explain.

He quotes King after the Voting Rights Act of 1965, claiming the movement had revived nothing less than the visionary heritage of the American Revolution. -"The stirring lesson of this age is that mass nonviolent direct action is not a peculiar device for Negro agitation. "Rather it is a historically validated method for defending freedom and democracy, and for enlarging these values for the benefit of the whole society."

King makes that extraordinary claim, but Branch notes what followed -

Parallel tides opened doors for the first female students at some universities and most private colleges, then the military academies. In 1972, civil rights agitation over doctrines of equal souls produced the first public ordination of a female rabbi in the United States, and the Episcopal Church soon introduced female clergy members in spite of schismatic revolts to preserve religious authority for men. Pauli Murray, a lawyer who was one of the pioneer priests, had pursued a legal appeal that in 1966 overturned several state laws flatly prohibiting jury service by women. "The principle announced seems so obvious today," Dr. Murray would write in a memoir, "that it is difficult to remember the dramatic break the court was making."

Overseas, as an amalgam of forces suddenly dissolved the Soviet empire atop its mountain of nuclear weapons, Dr. King's message echoed in the strains of "We Shall Overcome" heard along the Berlin Wall and the streets of Prague. Likewise, South African apartheid melted without the long-dreaded racial Armageddon, on miraculous healing words from a former prisoner, Nelson Mandela. Students shocked the world from Tiananmen Square with nonviolent demonstrations modeled on American sit-ins, planting seeds of democracy within the authoritarian shell of Chinese Communism.

These and other sweeping trends from the civil rights era have transformed daily life in many countries, and now their benefit is scarcely contested.

Yes, all that followed, and what King did started something, or at least made something possible.

And now? Branch says "the political discourse behind them is atrophied."

Public service has fallen into sad disrepute. Spitballs pass for debate. Comedians write the best-selling books on civics. Dr. King's ideas are not so much rebutted as cordoned off or begrudged, and for two generations his voice of anguished hope has given way to a dominant slogan that government itself is bad.

Above all, no one speaks for nonviolence. Indeed, the most powerful discipline from the freedom movement was the first to be ridiculed across the political spectrum. "A hundred political commentators have interred nonviolence into a premature grave," Dr. King complained after Selma. The concept seemed alien and unmanly.

Yep, we live in an age where violence is not only praised, but all else is considered foolishness. Branch is, with King, saying that "every ballot - the most basic element of free government - is by definition a piece of nonviolence, symbolizing hard-won or hopeful consent to raise politics above anarchy and war."

Of course we have to have a war to set up those elections in Iraq. Very odd. What would King think of that? Branch says that a few hours before King stepped out on the Memphis balcony and was gunned down he said, "In our next campaign we have to institutionalize nonviolence and take it international." A preemptive war may not have been what he had in mind. Still, the president on the holiday visited the Library of Congress and did a photo-op where he peered that the Emancipation Proclamation under glass, and later said King was "one of the greatest Americans who ever lived." But he did not urge that we institutionalize nonviolence. That's not his style.

On the King holiday the president had to deal with the fallout from his style of making the world better - As Pakistanis Protest, Questions Remain - Four Days After The Deadly Airstrikes, Answers Prove Elusive.

That item, from Jim Maceda of NBC, is one of many summaries of the situation - we tried to take out Osama bin Laden's second in command, Ayman al-Zawahiri, with a precision airstrike in the wilds of Pakistan, but didn't seem to get him. We got eighteen civilians, including women and children, and over the weekend, "tens of thousands of angry Pakistanis took to the streets." This is not good.

The president's father, now a UN special envoy, met with Pakistan President Pervez Musharra, and got an earful. The elder Bush wanted to talk about earthquake relief, but Pervez Musharra is catching crap from his own people over this. We're supposed to be allies. One supposes folks are asking Musharra just why being with the Americans in all this is such a good thing. Maceda says this mistake "squandered all goodwill toward America and damaged Musharraf's credibility." No kidding.

But is it their fault? What did Pakistanis really know about the attack? -

Very little. It seemed to take the country by surprise. Government officials claim they had no warning. Even former intelligence chief Gen. Hameed Gul, who worked closely with the CIA for years, said he was shocked.

"The CIA, they are responsible for the action and then Pakistan is not taken into confidence," he says.

But other counterterrorism sources tell NBC News that, with 50,000 security forces along the Afghan border, Pakistani agents must have been in the know.

Could the intelligence have been phony?

Pakistan's five intelligence agencies - with different agendas - compete with each other. Intelligence is often sold to the highest bidder and corruption runs deep.

This, lying and death from the sky, is not with King would have envisioned as bringing democracy to the world.

Jim Miklaszewski provides more detail here - we're talking not one Predator drone, but three, simultaneously firing hellfire missiles at three separate targets. The CIA drones monitored the movements of al Qaeda suspects at the village for two weeks before the attack - and this was CIA and not the military, who are saying nothing. "Live Predator video is fed real-time from Pakistan to the Global Response Center on the sixth floor of the CIA outside Washington. From there, CIA Director Porter Goss himself would give the order. But if he's not available, the deputy or assistant CIA directors five levels down can also order the strike." Fine. That's what we do.

But it may turn out all fine. It seems we're testing bits and pieces, and the DNA from some small chunk of flesh from the scene may match the DNA of Ayman al-Zawahiri, and everyone will calm down and we'll look real good after all, because now, unlike the days of Martin Luther King, the ends really do justify the means.

That may be what has really changed. King, in inspired by Gandhi, held that the means by which you achieve your goal were, well, part of the goal - don't sink to violence, keep your dignity, and your honor, and as Taylor Branch says, understand "the best way to safeguard democracy is to practice it." Now? We'll bomb and kill to force you accept democracy.

King saw the same problem with Vietnam -

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond to compassion my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them too because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

The president may say nice things about him on the holiday, but King would not be amused.

These days are like those days. The New York Times here quotes unnamed "American counterterrorism" officials about this business in Pakistan -

They offered a defense of the attack, saying they did not believe that innocent bystanders in Pakistan had been killed. One counterterrorism official said that even if Mr. Zawahiri was not killed in the attacks, "Some very senior Al Qaeda types might have been." The official declined to identify other Qaeda members thought to have been at the scene.

Well, you never know.

And then have your politicians -

"Now, it's a regrettable situation, but what else are we supposed to do?" Sen. Evan Bayh, asked rhetorically. "It's like the wild, wild west out there. The Pakistani border's a real problem."

Bayh, an Indiana Democrat, said the "real problem" lay with the Pakistani government's inability to control that part of the country, where sympathetic residents were believed to be harboring al Qaeda leaders.

"So, regrettably, this kind of thing is what we're left with," Bayh told CNN's "Late Edition with Wolf Blitzer."

... And Sen. Trent Lott added, "I would have a problem if we didn't do it."

"There's no question that they're still causing the death of millions of - or thousands of - innocent people and directing operations in Iraq," said Lott, a Mississippi Republican. "Absolutely, we should do it."

Bayh expressed similar sentiments, and cited the al Qaeda attacks on New York and Washington of September 11, 2001, as justification. "These people killed 3,000 Americans. They have to be brought to justice."

Senator John McCain, also concurred. "It's terrible when innocent people are killed; we regret that," he told CBS' "Face the Nation."

"But we have to do what we think is necessary to take out al Qaeda, particularly the top operatives. This guy has been more visible than Osama bin Laden lately.

"We regret it. We understand the anger that people feel, but the United States' priorities are to get rid of al Qaeda, and this was an effort to do so."

He added, "We apologize, but I can't tell you that we wouldn't do the same thing again."

The end justifies the means, and sorry about the dead kids.

All that is discussed by "Jeanne" here at Body and Soul -

We don't believe we killed innocent people. And even if we did, it doesn't matter because we might have killed some bad people at the same time and that would be good. And even if we didn't get any bad people, some of the "innocent" people may be sympathetic to the bad people. After all, these people killed three thousand Americans. Well, maybe not "these people" precisely, but some people who kind of looked like them, and came from roughly the same part of the world, give or take a thousand miles.

At least 18 people dead, and the senators are most anxious to assure us that it will happen again - just in case anyone was worried that we might display some signs of humanity.

So what else are we supposed to do? I know that's a rhetorical question, but let's treat it as an honest one nonetheless.

What else are we supposed to do?

... Awhile back, I said that I thought the Christian Peacemaker Teams were doing the most essential work in the world today - serving as models of what can be done with love, without violence. This is what I was talking about. Violence has not only produced nothing but more violence - blowback, if you will - but it's lead far too many of us to a soul-numbing state where we learn that we have murdered children and can convince ourselves there's no other way.

... Imagine what might happen if, today, in Pakistan, in Dr. King's honor, we took those words to heart, and heard the cries, and vowed to do everything we could to repair the damage, acknowledging that we could never entirely do so?

That'll be the day. We don't have leaders like that these days.

We don't, even on domestic issues.

Back in November, on the occasion of what would have been Bobby Kennedy's eightieth birthday, in these pages, here, you find what he had to say -

... there is another kind of violence, slower but just as deadly, destructive as the shot or the bomb in the night. This is the violence of institutions, indifference and inaction and slow decay. This is the violence that afflicts the poor; this poisons relations between men because their skin has different colors. This is the slow destruction of a child by hunger, and schools without books and homes without heat in the winter.

This is the breaking of a man's spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all. I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies - to be met not with cooperation but with conquest, to be subjugated and mastered.

We learn, at the last, to look on our brothers as aliens, men with whom we share a city, but not a community, men bound to us in common dwelling, but not in common effort. We learn to share only a common fear - only a common desire to retreat from each other - only a common impulse to meet disagreement with force. For all this there are no final answers. Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is not what program to enact. The question is whether we can find in our midst and in our own hearts that leadership of human purpose that will recognize the terrible truths of our existence.

We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of all. We must admit in ourselves that our own children's future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled nor enriched by hatred or revenge. Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land.

Well, he got shot too, just down the hill at the old Ambassador Hotel (now almost gone as they're tearing it down to build a new high school complex there).

Can the Democrats find another like him?

Consider this -

Let's review. Bush steals one, probably both elections through vote fraud, but the Democrats won't make an issue of it because that would undermine faith in the democratic process. Bush fails to react to copious pre-9/11 warnings, before the attack, but the Democrats won't make an issue of it because that would undermine national unity at a time when we need to pull together. Bush makes a decision to go to war, then lies repeatedly to fool the country into supporting it, but the Democrats won't make an issue of it because that would undermine our troops and war effort. Secret Bush policies condone and cover-up prisoner torture, but the Democrats won't make an issue of it because they suspect that people basically don't mind torture (really) as long as the victims "deserve it" and it is in the service of "protecting" us. The Bush gang hands them the biggest gift imaginable in the Plame scandal, but the Democrats won't make an issue of it because they don't want the investigation to appear "partisan." Bush breaks the law, illegally eavesdrops on innocent Americans, then says openly that he thinks its just fine and plans to keep doing it, but the Democrats won't make an issue of it because they are afraid of appearing "soft" on national security. Bush appoints a Supreme Court nominee who is openly supportive of the worst of these Executive policies, and who is explicitly committed to overturning abortion rights, but the Democrats won't make an issue of it because they are afraid of a fight over the filibuster. Congressional Republicans have created the biggest corruption scandal in decades, but the Democrats won't make an issue of it because a couple of them might be caught up in the net. Do these people WANT to win?

Maybe not.

Posted in these pages here on 28 May 2003, in the first year on line -

Do you remember the clear-headed, no-bullshit, let's-be-fair liberals of yesterday? Bobby Kennedy in that last run just laying it all out - hey, some stuff is wrong here and why don't we think it through, fix it and make things better? Well, Bobby got shot. Martin Luther King doing the same thing. Well, he got shot a few months earlier than Bobby. Of course, to be fair, George Wallace got shot too. Lots of people got shot.

But the point is that those optimistic "why don't we fix it and make things better" kinds of guys are nowhere to be found these days.

... No Democrat will win anything by whining about the smirking frat boy or by fretting about some British essayist hating cheeseburgers and everything American. To win the Democrats would have to field an opponent with a sense of humor, some brains, and a lot of optimism, someone who listens to what is being said, and is willing to say - "Hey, some stuff is wrong here and why don't we think it through, fix it and make things better?"

It does not seem like that is going to happen. And if it did, he or she would get shot.

So on and on we go.

The best we can do now is Al Gore?

In Martin Luther King Day Address, Gore Compares Wiretapping Of Americans To Surveillance Of King and this: "Al Gore has become the conscience of the Democratic Party."

It sort of makes you miss Martin and Bobby.

Posted by Alan at 20:57 PST | Post Comment | Permalink
Updated: Monday, 16 January 2006 21:07 PST home

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