Comments on: Spying at Home

By: rollo lovecraft

rollo lovecraft — Fri, 23 Dec 2005 00:47:16 +0000

Oh Dear makes the point at the heart of the dark-side argument.
All these iniquitous secret things rely on faith, trust and confidence in the authorities whose responsibility is not just to safeguard what is, but to protect the originating moments of what will be.
To this faith is charged the acceptance of covert maneuvers that we are required to believe are in our best interests – screams from the margins that are only the sounds of information being gathered, important information that will make us more secure.
Things shift – the raw material of the American republic as it was found in Jefferson’s moment is gone, replaced by what is for the most a weaker more timid thing. What were once marginalized attributes are central now, and the reverse holds true as well.
Everyone likes to see themselves as central to what’s in question – humanity, decent folks, right-thinking citizens, whatever.
So the debate could be about how erroneous it is for these quisling bastards, who wouldn’t sacrifice anything that would give them the slightest hurt, to step into the inheritance of those who gave all.
They put about their garish reverence for heroes all the time – the firemen and police of 9/11, the soldiers of all our wars against tyranny and oppression, the leaders who braved persecution for noble cause, right on back to Jesus. But they destroy everything those heroes suffered to preserve on the fetid altars of their greedy little dreams of satisfaction.
The smoke and mirror substanceless rationalizing of secret operations we’re asked to trust and keep the faith toward proceeds directly out of a proven cess pool of inhuman cruelty – a festering moat in the service of materially bloated conniving opportunists and erstwhile black-magicians.
It’s one thing to trust those who know more than we do, who have graver responsibilities and more serious and immediate decisions to make than we do generally; it’s quite another to trust blindly those whose visible actions clearly demonstrate a total disregard for any higher ethic whatsoever.
The chancer’s loyalty is earned by the probability of sharing in the spoils of the aftermath of their masters’ cunning aggressions, nothing more than that.
The rest is a shield of dishonesty, and repurposed innocence held up like a shield – against which our blows are intended to fall, checked and harmless.
Skullduggery, jiggery-pokery, hugger-mugger – all are effective tools, most especially in a contest where victory is stripped to utility, where nobility is arcane and foreign, and love of truth no more than a handicap, an irrational impractical idealism of no use whatsoever – to cowards overwhelmed by the already towering and still accumulating mass of their perfidy.

By: abb1

abb1 — Wed, 21 Dec 2005 18:08:11 +0000

Well, that’s exactly my point: it’s a clandestine operation against the American public.

But I guess you’re implying that the ‘evildoers’, ‘enemies of the people’ somehow get bewildered by wiretapping without a court order – could you elaborate on this theory, please?

By: oh dear

oh dear — Wed, 21 Dec 2005 15:43:15 +0000

abb1 opines: What about the fact that this has been done secretly? At least in the (absolutely despicable) “Hamdi case” they did it openly, tried to defend their bullshit ‘argument’.

If they thought what the NSA has been doing was legal, why didn’t they just announce it right from the beginning?

That’s right, we announce top secret clandestine operations ‘openly’. Where is the transparency. The NSA is way too secretive

You’re a genius abb1.

By: Uncle Kvetch

Uncle Kvetch — Wed, 21 Dec 2005 15:20:23 +0000

This has already been linked to in another CT thread, but for Bro. Bartleby's benefit, Hilzoy at Obsidian Wings neatly debunks the "Clinton & Carter did it too!" dodge. Go read.

By: jonathan

jonathan — Wed, 21 Dec 2005 12:38:10 +0000

Comes with the territory, USA.

By: CharleyCarp

CharleyCarp — Wed, 21 Dec 2005 04:29:28 +0000

It seems to me that FISA itself provides for how it is to be applied in case of a declared war. 50 USC section 1811. There’s no reason to think that a President would have greater power in a lesser war. It seems to me than that unless the AUMF contained some kind of repealing language, or something that would support repeal of FISA by implication, at best AUMF only triggers the application of section 1811.

Here, by the way, is an excerpt from Hamdi worth thinking about in this context:

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.

By: Thomas

Thomas — Wed, 21 Dec 2005 04:12:36 +0000

John Q, where has the argument I made been “previously refuted”? On the back of one of your envelopes?

Chris, I’m not sure where we disagree, other than the conclusion. I don’t believe, and nowhere suggested, that the holding in Hamdi was directly on point. Rather, Hamdi provides a useful and relevant precedent interpreting the AUMF and its interactions with sections of the USC. I believe that, following Hamdi, the question is whether surveillance, etc. are incidents of war, and that, when one examines that question, one finds that they are—and, more relevantly for our purposes, one finds that, at the very least, there’s a reasonable, good faith argument that such surveillance is an incident of war.

By: Bro. Bartleby

Bro. Bartleby — Wed, 21 Dec 2005 01:55:06 +0000

Clinton, February 9, 1995: “The Attorney General is authorized to approve physical searches, without a court order”
Jimmy Carter Signed Executive Order on May 23, 1979: “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”
WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also—in the delicate words of a Justice Department official—to “places where you wouldn’t find or would be unlikely to find information involving a U.S. citizen… would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order.”
Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president “has inherent authority to conduct warrantless searches for foreign intelligence purposes.”
Secret searches and wiretaps of Aldrich Ames’s office and home in June and October 1993, both without a federal warrant.

By: John Quiggin

John Quiggin — Tue, 20 Dec 2005 22:35:54 +0000

A ton of effort on our part to extract such a lame and previously-refuted argument!

I don’t think anyone here should sign up as an interrogator.

By: Robin Green

Robin Green — Tue, 20 Dec 2005 22:28:28 +0000

Another example of trolling seems to have been passed over above:

and that by keeping the other branches informed, the President provided adequate opportunity for our system of flexible checks and balances to do its work.

But isn’t this precisely the point … that the Legislative and Judicial branches were not given a chance to block this? Did the White House ask for retroactive authorisation – or any authorisation at all – for the warantless NSA spying? No, quite the contrary – they even asked the press to cover up the existence of this program!

By: djw

djw — Tue, 20 Dec 2005 20:14:00 +0000

Now you’ve joined the party, a bit late, and suggest that the issue is one of morality, of all things. Frankly, I’m a bit lost with that suggestion.

Perfect. Just exquisite.

By: chris lovell

chris lovell — Tue, 20 Dec 2005 18:47:54 +0000

The languge quoted goes, as I read it, to whether a truly indefinite detention is authorized by AUMF. O’Connor’s opinion says no, there are limits to the authorization—the detained can, under international law, be detained only for the duration of hostilities.

Nifty! An actual argument. However, it’s based on a misreading. (Only time will tell if it is a tendentious misreading.) You seem to think that O’Connor views interrogation as a “fundamental incident of war.” But that’s not what the opinion says. Here’s some of O’Connor’s opinion as quoted by Orin Kerr:

The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .

Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here…

Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized…

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.”

O’Connor states plainly that the purpose of detention is to prevent a combatant from returning to the battlefield, but she does not say that interrogation is a goal of detention or that interrogation is a “fundamental incident of war.” You certainly can argue that interrogation, surveillance, etc. are incidents of war, but I don’t think you can do it on the basis of Hamdi.

Note that O’Connor narrowly limits who can be detained under this opinion: Taliban combatants, who engaged in armed conflict against the United States. I’d be willing to be that most of the US citizens whose communications have been surveilled by the NSA program do not meet this definition. I don’t think it’s a good idea to use this intentionally quite limited decision as the justification for a broad-based program of domestic spying.

By: chris lovell

chris lovell — Tue, 20 Dec 2005 17:24:43 +0000

Chris: I didn’t intend any attack on Kieran’s intellectual honesty or capabilitty, as I said. Rhetoric of avoidance isn’t dishonest; it’s unbecoming. Making mistakes in a field outside one’s expertise isn’t evidence of a lack of capability, but of a lack of expertise. Is that clear enough?

When you say that “apparently intelligent people” are “unable to understand” “a rather elementary point” I’d say you’re questioning their intellectual capability. When you accuse someone of engaging in a “pernicious” argument, or of a preference for “the right rhetorical response” over learning “anything at all about the underlying substance” you’re questioning their intellectual honesty. Is that clear enough?

By: Mrs Tilton

Mrs Tilton — Tue, 20 Dec 2005 15:13:50 +0000

Pointing out that you don’t have the expertise isn’t a claim about mine, is it?

As you have cast the matter, I’m afraid it is. You really can’t see why?

If not, Kieran, then perhaps it’s for the best this fellow spends his time cluttering up your comments box rather than advising his firm’s clients on SOX compliance. Much safer for the clients that way.

By: abb1

abb1 — Tue, 20 Dec 2005 15:03:47 +0000

Atrios posted this:

http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.