Where are you going with this?

by Ted on January 3, 2006

Dwight Meredith:

Perhaps FISA is unduly restrictive. If so, let’s pass a better law. If, instead, we just let the President break the law anytime he decides to do so, we should not be surprised when some President decides to use that power in ways we find abhorrent. At that point, it will be nearly impossible to fix. No statute will be able to bind the President and both impeachment and constitutional amendment are very blunt instruments with long time lags. It is far better to decide what checks are needed before the fact.

Boy howdy. Other folks have used up most of the good points on the warantless wiretaps, but this point is absolutely vital. The White House has aggressively promoted the theory that the President can ignore the letter of the law if, in his judgement, national security would be better served by a different law permitting warrantless wiretaps, torture, etc. If the other branches of government give up the ability to constrain the President, they will likely never get it back again. Presidential campaigns don’t produce very many Cincinnatuses.

I’ve been a little surprised at the number of self-proclaimed small-government conservatives and libertarians who have stepped up to bat for Bush on this. The chasm between “Republicans” and “conservatives” continues to widen. I don’t see any way to reconcile the two. This country has had a pretty good run without subscribing to the theory of Presidential untouchability. The division of powers and rule of law seem to have paid some significant dividends. Letting them slip, even with the best of intentions, seems deeply, tragically unconservative. And yet the Pajamasphere seems intent on sneering at the press and cheerleading as the President jumps the rails.

“Those who would give up essential liberty to purchase a little temporary safety deserve $3.5 million in venture capital“, apparently.

{ 42 comments }

1

PersonFromPorlock 01.03.06 at 5:14 pm

Mr. Bush doesn’t understand that while the President is the Commander-in-Chief, the Commander-in-Chief isn’t the President. Rather, he is the senior military officer, which puts him under Congress’ Article I authority. It’s a completely different job from President, even though being President is the only job qualification.

There are thus two reasons why Mr. Bush is wrong in saying that being Commander-in-Chief in time of war gives him license to disregard the civil law; first, the powers of the C-in-C don’t carry over to the Presidency; and second, even in military law, those powers are subordinate to the Congress’ Constitutional power to control the military.

2

Pooh 01.03.06 at 6:12 pm

From Jackson’s concurrence in Youngstown:

No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.

So what person said.

3

Barry 01.03.06 at 6:18 pm

“I’ve been a little surprised at the number of self-proclaimed small-government conservatives and libertarians who have stepped up to bat for Bush on this. “

‘Small-government conservative’ = government should be stripped down to essential functions: cronyism and oppression.

‘libertarians’ 10% of the time= libertarianism; the other 90% of the time= deniable Republicanism, Republicanism under a false flag.

By now, everybody should realize this.

4

mrjauk 01.03.06 at 6:33 pm

The chasm between “Republicans” and “conservatives” continues to widen.

This is really the heart of the matter. For these people, supporting the Republican party has become an intrinsic, rather than extrinsic, good.
Put differently, for these people support of this President/administration has become an end in itself rather than a means to an end–such as the preservation of liberty. It’s not dissimilar to the most virulent strains of nationalism; “my country right or wrong” has morphed into “my party, right or (even against my most deeply cherished beliefs) wrong.”

5

Raymond 01.03.06 at 9:49 pm

What I find interesting is the lack of strategic thinking. Impeachment is never gonna happen, and the attempt will simply mean losing more elections and wondering/whining why you lost. The abramoff scandal would have more traction, its pretty bad for the republicans even if many dems are involved.

All this whining about civil liberties/warrantless surveillance doesn’t resonate with most people. As a libertarian, I just don’t have any problem with how the administration is fighting this war.

The CIA was gutted back in the 1970’s by our liberal sisters and our intelligence agencies turned to electronic means to meet our intel needs. Its a good point that Bush should have sought new laws that took into account 9-11 and our modern intel gathering capabilities. Had Bush done this it would have exposed this capability to some extent, but I still think he should have done it.

How have concerns about civil liberties affected you guys personally? How have fears of surveillance affected your life? I think at worst there might be some liberal white male who skipped the annual christmas party at his local bathouse and didn’t get his present from his secret santa. There’s all sorts of generalized whining, but if you’re not some guy named muhammed who thinks travelling to afghanistan to study religion is a good idea, you’ve got nothing to worry about.

6

Barbar 01.03.06 at 9:53 pm

I love how “conservative” thought has become indistinguishable from parody.

Or do these guys really just think that all political discussions revolve around being on the winning team? So much for the pride of “standing for something.”

Jesus H. Christ.

7

Barbar 01.03.06 at 9:58 pm

All this whining about civil liberties/warrantless surveillance doesn’t resonate with most people. As a libertarian, …

Bwahahahaha. OK, you got me, good one.

8

Barry 01.03.06 at 10:09 pm

Raymond: “As a libertarian, I just don’t have any problem with how the administration is fighting this war.”

Ah, a data point in favor of my theory, above.

Raymond, we don’t need advice from Republicans.

9

Walt Pohl 01.03.06 at 10:47 pm

Raymond, that’s some funny shit.

10

Justin 01.03.06 at 11:00 pm

Raymond (and Jane Galt) is a perfect example of the “selfish liberterian”. Selfish liberterians don’t want the government out of PEOPLE’S lives…they want the government out of THEIR life. So, if you’re a man (or, in Jane Galt’s world, a woman who has means to easily violate the law), abortion restrictions are A-OK. Racial profiling against Arabs? Fine if you’re white (ditto goes to racial profiling against other races). Government shutting down the New York Times? Bad…if you’re a subscriber. If you get your news from the New York Post anyway, then maybe Safire’s column will become available. Ban pot? Fine, I don’t smoke. Ban cocaine? ::sniff sniff:: HOW DARE THEY???????

We as intellectuals like to think of liberterianism as an abstract principle – Nozick and Hayek and all that jazz. But for most “liberterians”, including the ones I knew in law school, its a pragmatic principle – they don’t want the government messing with them. They’re just risk adverse – but if they’re 98% sure this is unlikely to affect them personally, they’re at best indifferent.

11

jet 01.03.06 at 11:26 pm

If you want to convince a Republican that unchecked powers for the Presidency are a bad idea, just remind him that a Clinton might get back in the office and if he remembers Filegate.

12

tatere 01.04.06 at 12:50 am

… a Clinton might get back in the office …

The utter disregard for this possibility – that someday they might not be in power – has been there from the beginning. It creeps me out. Is there a plan that’s behind that attidude? A Reichstag fire on the way? A coup should the country have the temerity to diselect them?

But then I remember that, no, they’re just dumb.

13

bad Jim 01.04.06 at 3:28 am

As a card-carrying civil libertarian, I’m always flabbergasted by the sort of thinking represented by

if you’re not some guy named muhammed who thinks travelling to afghanistan to study religion is a good idea, you’ve got nothing to worry about

Ignore the implicit racism. We don’t even need Pastor Niemöller’s “First they came for the communists.” It’s as simple as this: if we’re subject to unlimited surveillance we no longer live in a free country, even if for now they choose to jail very few of us.

14

Seth Finkelstein 01.04.06 at 3:41 am

… that someday they might not be in power …

Academic types value intellectual consistency much more that political operatives. The latter can change their positions (“Rule Of Law!” “Executive Power!”) in the time it takes them to draw breath. Their “philosophy” might be summarized as “Whatever works right now”.

15

Jack 01.04.06 at 3:57 am

bad jim,
they jail quite a lot of you.

16

john m. 01.04.06 at 4:02 am

“…a Clinton might get back in the office..”
“…that someday they might not be in power…”

Do you think it has occurred to them that maybe they should not be engaging in the total demolition of the core of the US constitution because it actually furthers the goal of their enemies i.e. the destruction of what has made the US a great force for freedom rather than for reasons of political expediency? As soon as the US administration (voluntarily it appears) removes/removed the constitutional freedoms of its citizens I’m at a complete loss as to exactly what they are protecting other than the right to be not a religious middle eastern gentleman. Personal safety is a human right but not to be confused with freedom – to use a childish example, I can keep you perfectly safe by locking you in a cell for the rest of your life. If the balance of freedom vs. personal safety can be (and is being) arbitarily decided by a President (elected or otherwise) then I cannot see how this can be described as a free society. Seriously, what do you say to someone who thinks the biggest internal threat to the US right now is a Clinton coming to power? It actually frightens me…

17

Brendan 01.04.06 at 4:47 am

‘How have concerns about civil liberties affected you guys personally? How have fears of surveillance affected your life?’

Incidentally, this betrays a fundamental and staggering lack of insight into what life in a fascist state is like. Whereas it used to be thought (for example) that in Nazi Germany the whole populace cowered in fear of the whip, it is now realised that the Gestapo (in most cities) was actually quite small, that ‘racially pure’ Germans were rarely harassed (unless they had the ‘wrong’ political views) and so forth. In other words, for most (non-Jewish/Romany) Germans, life just went on as usual. Fears of ‘surveillance’ didn’t affect their lives either.

(Note for the hard of thinking. I am not suggesting by this analogy that the US is like Hitler’s Germany…although it might end up that way in 20 or 30 years time if people like Raymond have their way.

18

nick s 01.04.06 at 4:59 am

How have concerns about civil liberties affected you guys personally?

Reply with your name, address, phone number, and details of all your conversations, emails and blog comments for the past year, and we’ll talk.

19

abb1 01.04.06 at 5:14 am

20 or 30 years? You’ve got to be kidding.

August 9, 1932: Emergency decree to combat terrorism creates special tribunals without appeal.

February 27, 1933 Reichstag fire.

February 28, 1933: Hitler granted emergency powers.

February 1933: First concentration camp set up.

That’s 6 months.

June 22, 1933: SPD banned.
July 14, 1933: Law prohibits new parties.

That’s another 6 months.

Work of the Gestapo, 1933-45; cases by category (Overy: 35):
• Continuation of outlawed organizations: 30%
• Non-conforming behavior: 29%
• Acquiring or spreading prohibited matter: 5%
• Listening to foreign radio: 2%
• Political passivity: 1%
• Conventional criminality: 12%
• Other: 21% At its peak, whole security apparatus numbers less than 51,000 for population of 90M; relies on informers.

20

Brendan 01.04.06 at 6:42 am

Sorry one last point. Of course the extreme right are going to go on about ‘whining’ about civil liberties (as though wanting to have protection from the a view shared only by middle class academics), but the key point about this situation is, to quote Kos:

‘The… Bush Administration continues to argue the John Yoo position — that War Makes Presidents Kings, and thus not bound by Congessional law. And that is not only a preposterous position – it is one of the most dangerous arguments ever made by a President. It is a direct assault on the Constitution.

While reasonable and intelligent conservatives like Professor Kerr struggle desperately to avoid this, it is inescapable — President Bush has mounted a frontal assault on the Constitution.’

I have noticed that, interestingly enough, not too many ‘Conservatives’ (who are of course not Conservatives at all but dangerous radicals) actually bother to deny that this action was un-constitutional, merely shrugging their shoulders and arguing that it was a ‘minor’ act or something like that.

Still, the Constitution’s just a piece of paper, eh?

21

PersonFromPorlock 01.04.06 at 7:05 am

A small defense of Raymond; in an imperfect world, the quantity of sin is important since the sin itself (in this case, unjustified surveillance) is always there. The FBI did not scruple to spy on Martin Luther King jr., for instance.

Raymond’s point that the Bush administration is not as bad in its snooping as it might be is therefore meaningful. The fear that the snooping establishes a precedent ignores a long-established practice of moderate cheating on the Constitution. The ‘precedent’, in other words, is nothing new.

That’s not to say it ought to be shrugged off, but public concern has served in the past to limit the cheating and probably will in the future; the sky is not falling.

22

fred lapides 01.04.06 at 7:38 am

“Raymond” would do well to stop spitting out the typical rage and hate that usually comes from the Right. And turn his attention to reading up on NSA–try Bamford’s two booksw–before he tells us all about the weak sisters of the Left who dismantled our intel…Does he know WHY FISA was put into place? Does he actually know what NSA ils legally allowed to do and has been doing?

Question: if NSA can wiretap “Mohammed,” then ‘what does theFBI have legal rights to do? Can they too tap now without court ok?

23

John Emerson 01.04.06 at 7:40 am

Yay! Raymond! A specimen conservatarian idiot has graced us with his presence!

At Jim Henley’s Unqualified Offerings we had a discussion about this, and the libertarians over there claimed that only 75.5% of libertarians are utter phonies.

Person, you should have quit while you were ahead. The sky may or may not be falling, and your complacent, silly use of the “Chicken Little” meme is unworthy of your better self.

There are many things about the Bush administration which makes him less worthy of trust than those who came before, rather than more.

24

PersonFromPorlock 01.04.06 at 8:14 am

The sky may or may not be falling, and your complacent, silly use of the “Chicken Little” meme…

JE, the sky isn’t falling, it’s just a little lower than we’d like it to be… and has been for a long time.

25

Brendan 01.04.06 at 9:00 am

‘Raymond’s point that the Bush administration is not as bad in its snooping as it might be is therefore meaningful. The fear that the snooping establishes a precedent ignores a long-established practice of moderate cheating on the Constitution. The ‘precedent’, in other words, is nothing new.’

You miss the fundamental point. It’s true that the Feds (amongst others) have a history of ‘black bag jobs’ etc. But the key point, of course, is that we didn’t find out about these things until many years later. In other words, the people responsible knew (or suspected) that their actions were illegal, and then (like any criminal) attempted to hide their actions, and provide a cover story for when they were caught etc.

This situation is rather different. Bush isn’t lying, and stating that he didn’t rubbish the Constitution. He is boasting about the fact that he broke the law. He is (more or less openly) repeating Nixon’s line that ‘when the President does it, that means it’s not illegal’. Except of course Nixon got impeached for that kind of talk.

But with the Republicans adopting a ‘my party right or wrong’ line, and the Democrats sitting like rabbits mesmerised by oncoming headlights, who has the political will to do what has to be done to Bush?

26

aaron 01.04.06 at 10:01 am

The program does have oversight. So long as the wiretaps are not used for personal gain, they are legit. It does violate FISA, but FISA isn’t valid in this regard.

My guess is that eventually they will be charged under FISA (I would guess after the administration ends), and that it will be declared invalid in the context of the wiretaps, but a thorough investigation will be done to make sure they weren’t abused.

27

John Emerson 01.04.06 at 10:09 am

Person, thanks for the bald assertion. It’s very convincing.

I objected to your use of the Chicken Little metaphor. I suppose there’s some other children’s tale I could use to show just how silly your ideas are — Three Little Pigs? Little Red Riding Hood? Rumpelstiltskin? — but why bother?

You’re wrong! (That’s as good an argument as yours).

28

Thomas 01.04.06 at 10:12 am

Brendan, you will particularly enjoy this fascinating passage from the Church Committee report:

In 1940, President Roosevelt authorized FBI wiretapping against “persons suspected of subversive activities against the United States, including suspected spies,” requiring the specific approval of the Attorney General for each tap and directing that they be limited “insofar as possible to aliens. ” 68
This order was issued in the face of the Federal Communications Act of 1934, which had prohibited wiretapping. 69 However, the Attorney General interpreted the Act of 1934 so as to permit government wiretapping. Since the Act made it unlawful to “intercept and divulge” communications, Attorney General Jackson contended that it did not apply if there was no divulgence, outside the Government. [Emphasis added] 70 Attorney General Jackson’s questionable Interpretation was accepted by succeeding Attorneys General (until 1968) but never by the courts. 71
Jackson informed the Congress of his interpretation. Congress considered enacting an exception to the 1934 Act, and held hearings in which Director Hoover said wiretapping was “of considerable importance” because of the “gravity” to “national safety” of such offenses as espionage and sabotage. 72 Apparently relying upon Jackson’s statutory interpretation, Congress then dropped the matter, leaving the authorization of wiretaps to Executive discretion, without either statutory standards or the requirement of a judicial warrant. 73

_____

For those at home, that’s the same Jackson who was quoted above, in comment 2. Everything old is new again, except, in my view, the legal interpretation is less strained, and this time the president has political opponents less concerned with the threats facing the nation.

Still, Brendan’s reference to the ‘will to do what has to be done’ does have the whiff of fascism about it, so we must be ever vigilant against his type.

29

otto 01.04.06 at 10:20 am

From original post
“Perhaps FISA is unduly restrictive. If so, let’s pass a better law.”

I am a little disturbed by this line of reasoning. There is a tendency for all arguments against this policy to be made on procedural grounds (I think MY and Josh Marshall have done this too) but backing away from making any argument that FISA should be restrictive. Even though the procedural/constitutional interpretation arguments are vital, arguing only on procedural grounds but yielding consistently on the substance will have little bite – like the many conservative commentators who said that the Massachusetts supreme court was wrong to impose gay marriage but could not bring themselves to say that gay marriage is wrong. It’s a weak position in both cases.

If it turns out that escaping FISA was used to spy on US academics or journalists etc, then of course the substantive argument will be right back in play. Dont yield on it yet.

30

Uncle Kvetch 01.04.06 at 10:46 am

JE, the sky isn’t falling, it’s just a little lower than we’d like it to be… and has been for a long time.

You have no way of knowing whether it is or not, person…that’s the whole point of the discussion. You have absolutely nothing on which to base your belief, other than the say-so of an administration that has repeatedly shown both the willingness and the capacity to lie in the furtherance of its political agenda.

Jesus. Remember when the folks on the right used to strut and crow about being the “realists”?

31

Brendan 01.04.06 at 11:31 am

I’m not sure from Thomas’s post whether he is claiming that illegal wire tapping occurred under FDR or not. But the issue is not specifically to do with wiretapping: it’s to do with the President breaking the law. It’s also got to do with the President boasting about this and attempting to create a precedent whereby the President can break the law ‘when the country is at war’ whenever he wants (and since Bush was the one who actually launched the war, this means, effectively that the President can break this (or in theory any) law whenever he wants).

32

rollo 01.04.06 at 11:32 am

The sky isn’t falling because it hasn’t yet fallen. When and if it does fall, then afterward those of us still standing can say with absolute certainty that it was falling – at that prior time, after it’s been made essentially meaningless as information.
There’s a smirking tone to the irrational idiocies that get thrown at the idea of human-caused climate change and at the proofs of its validity, almost as though there’s no real concern for whether or not the climate’s being seriously disrupted. This is enabled by most people living now in environments whose connections to the weather are oblique, and primarily visual and distant – until it gets extreme.
A lot of the resistance is self-delusion and cowardice. Some of it’s definitely base greed and an attempt to milk the rewarding status quo ante for as long as possible. Very little of it is honest scepticism, and virtually none of it is altruistic.
Suggesting that “apologies” might be in order seems almost obsequious in its genteel reserve.

33

rollo 01.04.06 at 11:35 am

Wrong tab. Next post over.

34

Barry 01.04.06 at 11:44 am

otto: “If it turns out that escaping FISA was used to spy on US academics or journalists etc, then of course the substantive argument will be right back in play. Dont yield on it yet.”

Good point, otto. And given both this administration’s attitude, and the fact that insiders seemed to have objections, the only reason that they wouldn’t have is that they were too busy spying on Democratic politicians.

35

PersonFromPorlock 01.04.06 at 12:04 pm

I suppose there’s some other children’s tale I could use to show just how silly your ideas are—Three Little Pigs? Little Red Riding Hood? Rumpelstiltskin?

JE: How about “The Trial of Billy Jack?”

36

john m. 01.04.06 at 12:56 pm

Did the original Person from Porlock have a warrant for his drug bust? And just look at the consequences…

37

PersonFromPorlock 01.04.06 at 6:10 pm

John M.: Well, the secret of great art is said to be ‘knowing when to stop’!

38

Matt Weiner 01.04.06 at 8:28 pm

Hey, everyone see this?

39

otto 01.04.06 at 9:46 pm

“If it turns out that escaping FISA was used to spy on US academics or journalists etc, then of course the substantive argument will be right back in play. Dont yield on it yet.”

Voila:
See Brad Delong on Andrea Mitchell on Christine Amanpour.
http://www.typepad.com/t/trackback/3970978

40

otto 01.04.06 at 9:50 pm

41

theorajones 01.05.06 at 11:28 am

Poster #1 makes a good point. As an historical aside, George Washington turned his power over to the Continental Congress, not to a President.

Can you please elaborate further on the Commander-in-Chief role and what it means? I don’t udnerstand what you mean that it’s a congressional role.

Thank you.

42

PersonFromPorlock 01.06.06 at 5:11 pm

Theorajones:

The powers of Congress described in Article I Section 8 read in part: To raise and support Armies…To provide and maintain a Navy…To make Rules for the Government and Regulation of the land and naval Forces…. all of which makes it pretty clear that Congress has power over the military.

Thus, when the President assumes the role of Commander-in-Chief, he is assuming the top position in an organization which is subordinate to Congress. The only way in which this subordination can be squared with the separation of powers is by assuming that the President as C-in-C is no longer functioning as President, which is why I say it’s a separate job whose only qualification is that its holder is also the President.

So the President as C-in-C has less autonomy than he has as plain President; and his powers as C-in-C have no bearing on his powers as President because they’re different jobs.

Hope this helps.

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