Mark Schmitt on abuse of executive power

“Given what we know about these previous episodes in which the executive branch created zones of extreme secrecy, I think it’s quite likely that we will soon learn that the NSA domestic surveillance program involved much more than just tracking people who received calls from known al Qaeda suspects, something that I certainly wouldn’t object to.”

Note that under the logic of this argument, the ‘rightness’ of the program depends entirely on how it was used: if it was in fact used only to track Al Qaeda suspects, its ok. And if his suspicions are borne out, and it was expanded to spy on political opponents, or journalists, etc, then the program was not ok. I think most people who agree with the president agree with this entirely-spying on Al Qaeda is ok, spying on the Democratic Party is not. But do those who disagree with the program accept these limits? Is spying on Al Qaeda ok?

Steve

If it’s really al Qaeda, they would hardly have a problem getting a warrant from the normally rubber-stamp FISA court. If they don’t seek one, or are turned down and do it anyway, there is every reason to assume they’re up to no good.

Peripherally connected- just the other day I saw an item in one of the local alternative papers about leaked DOD documents showing that the Pentagon labeled a peaceful Friends Service Committe rally as a “potential threat”. Gotta watch out for those violent revolutionary Quakers! This is the kind of Hoover / Nixon crap that is always the actual bottom line when the government bleats about “national security”. And this crowd is even less to be trusted than Nixon’s. For the only possible sane take on this stuff, consult good old Ben Franklin on the folly of attempting to trade liberty for security.

Another overlap which the Bushies wouldn’t like is with Francois Mitterand — running his own surveillance shop directly out of the Elysee Palace, justified as anti-terrorism but ended up spying on the journalists who might have reported on the mistress and daughter.

Steve,

Actually, I believe that the line being drawn by Mark Schmitt is a lot less fine than that. My understanding is that, when he says “(…) tracking people who received calls from known al Qaeda suspects, something that I certainly wouldn’t object to” he isn’t just talking about spying on Al Quaeda but, rather, spying on US citizens who are (supposedly?) (probably?) (possibly?) communicating with Al-Quaeda members. And that end – intercepting communications between US citizens and (supposed?) (probable?) (possible?) terrorists – would justify the means – eavesdropping without a warrant, i.e., violation of a civic freedom. This position is, in my opinion, extremely risky, in democratic terms (I voluntarily leave the legal and moral particulars aside). Why? Three reasons:

1. It isn’t efficient.
2. It creates an incentive for abuse.
3. It erodes the system.

About the issue you raise (Is spying on Al Quaeda OK?), I’d say yes, certainly, within the constitutional and legal limits established in a democratic state. Another completely different thing is an Echelon-type international communications spy net. That isn’t acceptable. And tt’s not me saying so, it was the Council of Europe. When they asked the Bush Administration about it the answer was (obviously) “no comment”.

Should we start a pool on what comes out? I’d like to place money on spying on Democratic politicians.

“… quite a big overlap with Nixon’s crowd”

In 2001 Dick Cheney stepped down from the International Advisory Board of Oxford Analytica. From the press release:

“We are enormously grateful for the long-standing support of Dick Cheney who has been part of our International Advisory Board for many years. We wish him well as Vice-President of the United States” commented David Young, Chief Executive of Oxford Analytica.

David Young founded OA in 1974, shortly after arriving in England from the US. The previous year he “was spared jail through the grant of limited immunity on the motion of the Senate Select Committee on Presidential Campaign Activities (the Senate Watergate Investigation Committee)” [link]

He was facing jail because he was the original Plumber.
Wikipedia cut and paste:

The group was formed in an almost direct response to the release of The Pentagon Papers in the New York Times beginning June 13, 1971 … On July 1, David Young joined the White House and together with Egil Krogh penned a memorandum to Nixon advisors Haldeman and John Ehrlichman advocating the formation of a White House Special Investigations Unit. Haldeman and Ehrlichman agreed to the plan and obtained the approval of Nixon. Young was put in charge of the unit and reported to Krogh. The nickname Plumbers came to being when Young posted his name on his office door which read ‘David R. Young, Plumber’.

Firstly, lets be clear that I’m not suggesting Cheney has anything to apologize for in his association with Young after 1974. Young was no Howard Hunt, and if anything it’s encouraging to see that there are second acts in American lives, even if sometimes they have to happen in Europe.

What this does though is shed light on an unapologetic mindset. The script runs as follows: the men ruined by Watergate acted virtuously in the service of a strong executive; they were hounded out by an overmighty, politically motivated press; the regrettable result was the malaise of the Carter years; to restore American strength a capable executive needed to regain lost power from those hoarding it but unable to wield it. The source of Bush’s theories of executive authority lead back to Watergate, and to the sense of a wrong that needed to be righted. And it’s striking to see so many parallels with the Nixon years, from the superficial (a damaging New York Times story is countered by a furious denouncement of the sources and an aggressive leak investigation) to the central (Bush’s claims that the powers inherent in the Presidency mean, in effect, “when the president does it that means it is not illegal“).

So, when Mark Schmitt writes about people firebombing the Brookings Institution, he is not talking about a distant past utterly unconnected with the present. And people preparing to defend the current administration should pause, revisit recent history, and ask themselves which side of it they want to find themselves on in the future.

It certainly seems as if these practices don’t automatically lead to totalitarianism—they certainly didn’t in the recent past.

They do lead (and did in the recent past) to some kind of -ism, that’s for sure.

But if it’s not totalitarian-ism, then everything is fine, right?

Rea, I think Thomas is making the point that if a Democratic president did it in the past, we’re not allowed to complain about Bush doing it now.

Am I getting warm, Thomas?

UK, not at all. I think, as Mark recognizes, one shouldn’t pretend to draw historical lessons on partisan lines. But the point I was making is much different, and is simply that acontextual complaints about particular practices aren’t much help. There are always trade-offs–contrary to Franklin’s unhelpful little saying–between liberty and security, and the question is how much liberty to trade for how much security. One concern often raised is that moving the liberty line even a little bit puts us on a slippery slope, or inevitably leads to further abuses, or other variations. But, as Mark recognizes, recent history shows that isn’t necessarily the case–we’ve proven quite capable of adjusting the boundary as needed, as circumstances changed. Now, facing a very real threat, why shouldn’t the line move from what it was in, say, 1998, to something more like it was in 1942, or 1948, or 1955, or 1962, or 1968, or 1972?

UK, on that I have to disagree. I posted elsewhere a bit from the Church Committee’s reports, which I’ll repost here:

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

_______

I think an examination of historical practices makes it pretty clear that presidents have, in recent times at least, been very willing to draw the line where they please. Further, from what we know now about the NSA program, it isn’t nearly as concerning as, say, the activities of FDR or Truman or JFK or Nixon. And “we” certainly retain our say in this: George Bush serves until January 2009, unless Congress decides to remove him earlier pursuant to its impeachment power. “We” will choose his replacement, and “we” choose the Congress. (And note that Congress was informed of this matter.)

UK, that we don’t know much is a fair point in response, but I would say that we didn’t know much, at the time, of what the presidents I mentioned were doing, and what we now know they did in this area is almost unimaginable–from the black bag jobs of Hoover’s FBI to JFK’s wiretaps on reporters, or the use of FBI surveillance information for political purposes by Truman, Eisenhower and Kennedy. It’d take a lot to exceed the practices of the mid-20th century.