by hilzoy
For several days now, I've been meaning to write about the Judiciary Committee's hearings on the NSA domestic surveillance program. I read the transcripts. A lot of it was incredibly dull -- much duller than I had expected -- since Gonzales seemed to stick remorselessly to a few single rules:
(a) When asked about the legal justification for the actual NSA program, repeat things the administration has already said.
(b) When asked any question about the legal justification for anything other than the actual NSA program, refuse to answer on the grounds that you have not done the requisite constitutional analysis. Do this even if the question involves a straightforward application of principles you have already enunciated.
(c) When asked any factual question, do not answer, on the grounds that it is an "operational detail", regardless of whether or not this description is even remotely plausible.
On the whole, that made for some pretty dull testimony. However, there were some interesting and alarming bits sprinkled here and there, and I wanted to write both about them and about the administration's truly alarming view of presidential power. Fortunately, Glenn Greenwald has written a great post about the latter topic. Below the fold, I'll copy some of it (though you should read the whole thing), and then use a few bits of Gonzales' testimony to illustrate.
Greenwald is laying out points that he thinks people should make when explaining the NSA program. His first is this:
"(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him."
Greenwald begins by saying that he thinks the issue is best described in this way, rather than as an issue about the rule of law. If we make it about the rule of law, the administration will be able to trot out its legal justifications, everyone will get confused, and the whole thing will just seem like an arcane legal disagreement. Far better, he says, to explain clearly what their legal theory is, and why it is genuinely radical and frightening. He then does exactly that.
"The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II "inherent authority" to engage in warrantless eavesdropping against Americans. Their argument is much, much broader -- and much more radical -- than that. Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil. In a Press Release issued on January 27, the DoJ summarized its position on the legality of its actions this way:
"In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental incident(s) of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force."Gonzales took that argument even one step further on Monday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all "incidents of war" both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.
The "war powers" which a President can use in war against our enemies are virtually limitless -- they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing. The reason the Administration claims it can engage in warrantless eavesdropping against Americans is because it has the general right to use all of these war powers against Americans on American soil, of which eavesdropping is but one example. Without hyperbole, it is hard to imagine a theory more dangerous or contrary to our nation’s principles than a theory that vests the President -- not just Bush but all future Presidents -- limitless authority to use war powers against American citizens within this country.
Critically, these claimed powers are not purely theoretical or, as Gonzales claimed in response to questions from Sen. Feinstein, "hypothetical." Quite the contrary. Not only has the Administration claimed these powers, they have exercised them aggressively -- not just against Al Qaeda, but against American citizens.
In my view, the single most significant and staggering action of the Bush Administration – and there is an intense competition for that title, with many worthy entries – is the fact that the Administration already has detained an American citizen on American soil (Jose Padilla), threw him into a military prison indefinitely, refused to charge him with any crime, and refused even to allow him access to a lawyer, and then kept him there for several years. Then, the Administration argued that federal courts are powerless even to review, let alone limit or restrict, the Government’s detention of American citizens with no due process.
And to justify this truly authoritarian nightmare – being detained and locked away with no due process by your own Government – the Administration relied upon precisely the same theory which Gonzales advocated on Monday to justify the Administration’s warrantless eavesdropping on Americans. Like warrantless eavesdropping, indefinite detention is a "war power," and the Administration therefore claims that it has the right even to detain American citizens with no charges, and nothing can limit or stop that power.
If the American people decide through the Congress that we do not want the Government to be able to use those war powers against us -- as, for instance, we did in 1978 when we, through our representatives, enacted FISA, or when we enacted legislation last December banning the use of torture -- do we really have a system of Government where the President can literally ignore that, violate the laws that we enact, and then use those war powers against American citizens in the face of laws prohibiting it?
Under the Bush Administration, that is the country we have become. Alberto Gonzales spent 8 hours on national television the other day justifying why we must be a country which lives under a system which operates in that manner. That is a system of government wholly foreign to how Americans understand their nation and how our nation has always functioned. There is no more important priority than making as clear as possible to Americans just how broad and truly radical are the powers claimed by this President."
Sorry for the extended quote: it was too good to cut. The rest is just as good. Read it all.
***
Greenwald said a lot of what I wanted to say about the radical nature of the administration's argument. I have spent my life loving this country for its values, among them the right not to be tossed in jail at the whim of some ruler, but to be guaranteed the right to live free from searches, wiretapping, surveillance, and arrest unless some official could convince a judge that there was probable cause to believe that I had committed a crime. I could scarcely believe it when Padilla was locked up: I was as shocked as I would have been had Bush asserted the right to ban Lutheranism, or to close down the New York Times. It was such a complete betrayal of our country's core values that it took my breath away.
I feel the same way about the NSA story. To me, this has nothing whatsoever to do with whether or not we want to know what al Qaeda members are saying to one another. Of course we do, and I can't imagine that the FISA court would be unwilling to issue a warrant in any such case. Nor does it have anything to do with my concern for the national defense: I can't see how getting warrants would have harmed us in any way, especially since it's possible to apply for them 72 hours after beginning surveillance. (By contrast, not getting warrants is putting cases against terrorists in jeopardy.) It's about whether or not the President has the right to order surveillance of US citizens without getting a warrant, without any sort of judicial oversight, and with only the barest gesture at informing Congress. (Informing eight members of Congress who are bound to complete secrecy, and who therefore have no way of making any of their concerns known to anyone, scarcely counts as allowing for Congressional oversight.)
Moreover, as Greenwald points out, it's about more than that: the administration's position allows for the use of any "war powers" against US citizens, at any time during the 'war on terror', which will probably not end in my lifetime. As Greenwald notes, "war powers" covers a lot: "they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing." He adds that this is not hypothetical, since the administration has actually used those powers, both in the NSA program and against Jose Padilla.
If these two examples don't do it for you, though, just ask yourself this: is there any reason to think that President Bush has not invoked what he takes to be his authority to use war powers against US citizens in any other way? Has he authorized a program to open citizens' mail, search their homes, install cameras and microphones in their living rooms and bedrooms, imprison them without notifying anyone, torture them, or kill them? Espionage is an "essential incident of war": has he decided to plant spies and agents provocateurs in Muslim seminaries and mosques, or for that matter in anti-war groups or labor unions? Has he decided that, since propaganda is an "essential incident of war", he can run disinformation programs within the United States, or subvert our democratic institutions? If he had done any of these things, how on earth would we know?
Well, we might try asking Alberto Gonzales. Luckily for us, this idea occurred to several Senators on the Judiciary Committee. Here are his answers (note: in reading the first passage, in which Gonzales claims that the President has not authorized anything that violates the law, bear in mind that Gonzales claims, in answers to questions by Durbin and Feingold, that when the President authorizes the use of any 'incident of war', even one that is prohibited by law, he does not violate that law, since the AUMF and the Constitution give him authority to authorize such actions legally):
"FEINSTEIN: Senator Kennedy asked you about first-class mail, has it been opened, and you declined answering.Let me ask this way: Has any other secret order or directive been issued by the president or any other senior administration official which authorizes conduct which would otherwise be prohibited by law? Yes or no will do.
GONZALES: Senator, the president has not authorized any conduct that I'm aware of that is in contravention of law.
FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than NSA surveillance?
GONZALES: Again, Senator, I'm not sure how to answer that question.
The president has exercised his authority to authorize this very targeted surveillance of international communication of the enemy. So I'm sorry, your question is?
FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we're discussing, the NSA surveillance program?
GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized. I'm here to...
FEINSTEIN: OK. That's fine.
GONZALES: OK.
FEINSTEIN: That's fine. I just want to ask some others. If you don't want to answer them, don't answer them.
GONZALES: Yes, ma'am.
FEINSTEIN: Can the president suspend the application of the Posse Comitatus Act legally?
GONZALES: Well, of course, Senator, that is not what is at issue here.
FEINSTEIN: I understand that.
GONZALES: This is not about law enforcement, it's about foreign intelligence.
FEINSTEIN: I'm asking a question. You choose not to answer it?
GONZALES: Yes, ma'am.
FEINSTEIN: OK.
Can the president suspend, in secret or otherwise, the application of Section 503 of the National Security Act, which states that "no covert action may be conducted which is intended to influence United States political processes, public opinion, policies or media"?
FEINSTEIN: In other words, can he engage in otherwise illegal propaganda?
GONZALES: Senator, let me respond to -- this will probably be my response to all your questions with these kind of hypotheticals.
And the question as to whether or not -- can Congress pass a statute that is in tension with a president's constitutional authority. Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible. I think that, again...
FEINSTEIN: OK, that's fine. I don't want to argue with you." (cite)
And again:
"LEAHY: (...) Well, if the president has that authority, does he also have the authority to wiretap Americans' domestic calls and e-mails under this authority if he feels it involves Al Qaida activity?I'm talking about within this country, under this authority you have talked about. Does he have the power under your authority to wiretap Americans within the United States if they're involved in Al Qaida activity?
GONZALES: Sir, I've been asked this question several times.
LEAHY: I know. And you've had somewhat of a vague answer, so I'm asking again.
GONZALES: And I've said that that presents a different legal question, a possibly tough constitutional question. And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.
GONZALES: I will say that that is not what we are talking about here. That is not...
LEAHY: Are you doing that?
GONZALES: ... what the president has authorized.
LEAHY: Are you doing that?
GONZALES: I can't give you assurances. That is not what the president has authorized for this program.
LEAHY: Are you doing that? Are you doing that?
GONZALES: Senator, you're asking me again about operations, what are we doing.
LEAHY: Thank you."
And again:
"SCHUMER: (...) Now, here's the next question I have: Has the government done this? Has the government searched someone's home, an American citizen, or office, without a warrant since 9/11, let's say?GONZALES: To my knowledge, that has not happened under the terrorist surveillance program, and I'm not going to go beyond that.
SCHUMER: I don't know what that -- what does that mean, under the terrorist surveillance program? The terrorist surveillance program is about wiretaps. This is about searching someone's home. It's different.
So it wouldn't be done under the surveillance program. I'm asking you if it has been done, period.
GONZALES: But now you're asking me questions about operations or possible operations, and I'm not going to get into that, Senator.
SCHUMER: I'm not asking you about any operation. I'm not asking you how many times. I'm not asking you where...
GONZALES: You asked me has that been done.
SCHUMER: Yes.
GONZALES: Have we done something?
SCHUMER: Yes.
GONZALES: That is an operational question, in terms of how we're using capabilities.
SCHUMER: So you won't answer whether it is allowed and you won't answer whether it's been done.
I mean, isn't part of your -- in all due respect, as somebody who genuinely likes you, but isn't this part of your job, to answer a question like this?
GONZALES: Of course it is, Senator.
SCHUMER: But you're not answering it.
GONZALES: Well, I'm not saying that I will not answer the question.
SCHUMER: Oh.
GONZALES: I'm just not prepared to give you an answer at this time.
SCHUMER: OK. All right. Well, I'll accept.
And I have another one, and we can go through the same thing.
How about wiretaps? Under the legal theory, can the government, without ever going to a judge, wiretap purely domestic phone calls?
GONZALES: Again, Senator, give me the opportunity to think about that. But, of course, that is not what this program is...
SCHUMER: It's not. I understand. I'm asking because, under the AUMF theory, you were allowed to do it for these wiretaps. I just want to know what's going on now.
Let me just -- has the government done this? You can get back to me in writing.
GONZALES: Thank you, Senator.
SCHUMER: OK. And one other. Same issue. Placed a listening device -- has the government, without every going to a judge, placed a listening device inside an American home to listen to the conversations that go on there?
Same answer.
GONZALES: Same answer, Senator.
SCHUMER: OK.
But now I have another one. And let's see if you give the same answer here.
GONZALES: All right.
SCHUMER: And that is: Under the legal theory, can the government, without going to a judge -- this is legal theory; I'm not asking you whether they do this -- monitor private calls of its political enemies, people not associated with terrorism but people who they don't like politically?
GONZALES: We're not going to do that. That's not going to happen.
SCHUMER: OK."
As I read it, Gonzales just refuses to answer the question whether or not the President has authorized any other program that would be illegal were it not for the AUMF and his Article II powers. That is: Gonzales is not saying whether or not the President has decided to do things that would normally be illegal, on the grounds that he has the right to override laws when he decides that the "war on terror" requires it.
Think about that. Think about the range of things that the President might have decided to do on those grounds. Ask yourselves how, exactly, anyone would ever find out about these programs, or how any abuses they led to might be discovered and corrected.
Then ask yourself whether this is the country you always thought you lived in. As far as I'm concerned, the answer is: No. Obviously, no. And I want my country back.
Lastly, and apologies for not saying this in one comment, RonK's cite is one guy's opinion. "Alan Hirsch, a freelance writer and constitutional scholar, received a B.A. from Amherst College and a J.D. from Yale Law School."
It seems like a reasonable piece, but it's still just one guy's opinion.
Posted by: Gary Farber | February 09, 2006 at 09:34 PM
"You accuse me of argument by assertion."
And finally finally: in point of fact, I hadn't even read what you'd written, Bob, let alone "accuse[d]" you of a damn thing. I'd just like to be very clear about that.
When I have something to say to someone, I try to remember to quote what they say, and to address them. Occasionally I will forget, or write carelessly, but it might be a good idea to ask me first, rather than to attempt mindreading, if you might be so kind.
Posted by: Gary Farber | February 09, 2006 at 09:39 PM
"You accuse me of argument by assertion."
Shall I go through the archives?
In any case, I should have added some meaningful emphasis, for you have accused me of it, and in fact do so in the next thread, but with:
"No. (And since it seems to come up a lot, members of Congress can't be impeached, either; they can only be censured, or expelled, and/or then tried by the courts.)" ...7:33
You plainly do the same yourself, without cite or supporting evidence.
And this kinda goes to the point of battling citations. Since my cite didn't persuade, as usual, I am less convinced of the usefulness of cites and evidence in argument. It is as often used to distract, delay, and obfuscate as to arrive at a consensual agreement. Facts have been of little to no use to the left in last few years.
Withholding judgement until certainty is universal may work in science, but is the exact opposite of what is necessary in politics and morality.
Posted by: bob mcmanus | February 09, 2006 at 11:43 PM
People say I am mean to the likes of charleycarp for not appreciating his efforts. I do appreciate his efforts, but they are under the old understanding, that the laws and courts and decisions are important. Those thing are no longer important, no longer matter.
I've missed anyone saying such things to you bob. I've never felt this way about your views -- I understand where you're coming from, and although I am not ready to agree with you that our old system is gone, I'd never take your opinion that it is personally.
I've got a couple of clients who would say you've the better of the argument, by the way.
If I agreed with you that the situation is completely hopeless, I'm not sure what I'd do. I'm never really sure what it is that you think should be done. I'm not ready for violence, personally, and think my side of the political divide would do even worse at that than under whatever remnant of the old system survives.
Let me put it another way. We're currently getting what we deserve. I'd like us to deserve better. You have an idea how to get there?
Posted by: CharleyCarp | February 10, 2006 at 12:50 AM
"Shall I go through the archives?"
To demonstrate something said in the present tense? I wouldn't suggest it, no.
"In any case, I should have added some meaningful emphasis, for you have accused me of it, and in fact do so in the next thread...."
Bob, first you say I responded to a comment I hadn't even read, and in response to my noting that, you hare off to justify your mistaken response by bringing up something -- whatever it is -- entirely different.
I think it's probably more useful if I don't offer further comments on this for you to respond to.
I can't resist, however, responding to this: "Facts have been of little to no use to the left in last few years."
Whatever works for you; I'm unlikely to surrender a fondness for them.
Posted by: Gary Farber | February 10, 2006 at 12:55 AM
Bob, I really do disagree about whether the courts matter, and I think the Pres shows his fear of the courts often enough to give me reason to think we're still in this game.
The Pres has been strutting about for 4 years bragging about how he's bringing terrorists to justice. See how many foreigners he's had tried? He's scared, because the only people on earth he can't intimidate are in the federal judiciary. And even plenty of conservatives in the judiciary realize this, and being actual conservatives, rather than [insert derogatory phrase here], they'll stand up to the Admin in favor of the rule of law.
{I wonder if it isn't because judges have been under serious physical threat for a long time. People on the front line -- and I work close enough to the WH to be on the front line too -- either go crazy, or find a way to go on living despite the dangers. It's the armchair fraidy-cats that are such a pain . . .}
Posted by: CharleyCarp | February 10, 2006 at 12:58 AM
"Whatever works for you; I'm unlikely to surrender a fondness for them."
A passionate and sincere rhetoric (or any other effective rhetoric) seems to be makes the world go round, from personal relationships to foreign affairs. I am not disturbed or discouraged that many people are not logical or scientific or informed and open enough to be approached on those grounds, but it does give cause to adjust tools, tactics, methods.
Facts can be a safe harbor. What I put out there may not be adequate or effective, but at least I do my best to be certain it is me and not a shield or mask.
...
Charley, I of course hope you are right. After the behaviour of the administration following the last detainee decisions at SCOTUS, I would be surprised if we don't have a Jacksonian ("Let him enforce it") moment of open defiance. Courts might be hesitant to provoke a constitutional crisis. Luttig encouraged some people, but I don't trust him.
Posted by: bob mcmanus | February 10, 2006 at 01:43 AM
(Sorry haven't read all the comments)
Just curious, but when, between now and the scheduled elections of DEC2007 will he name himself leader of the US for the duration of the war?
Even scarier is that he could probably get away with it, as he is currently succeeding in scaring the pants of a majority of the american people(re terrorists).
If the US is gone (in its current form) then we are sure to follow. What can we do?
Posted by: Debbie(aussie) | February 10, 2006 at 05:41 AM
Debbie, I consider it more likely that Jeb Bush (or some other suitable custodian) will be put forward as the next Presidential candidate it won't-matter-if-you-vote-against-him. The principle is that they want to stay in power, and that their President shall have monarchical powers: they only have to find another Presidential candidate with a sense of privilege uncontrolled by any sense of responsibility - someone who won't watch the news and always goes to bed at nine. The kind of guy who does what his staff tell him in times of national emergency, and reads from an autocue well. George W. Bush has been the perfect President from the point of view of Nixon's and Reagan's crowd: I'm sure they can find another Republican just like him for Diebold to vote for.
Posted by: Jesurgislac | February 10, 2006 at 05:51 AM
I haven't read thru all the comments to see if anybody else has noted this, but the NSA program is at least somewhat consistent with what the Senate Intelligence Committee recommended doing in 2002
These are some excerpts from the (PDF) Recommendations of the Senate Intelligence Committee in December 2002, in response to the Sept 11, 2001 attacks:
I think that there were at least some Democrats on the committee when these recommendations were made. Did they change their minds after that?
Posted by: DaveC | February 10, 2006 at 09:58 AM
I'm certainly all for bringing this NSA matter up for a vote in the Senate, just like the House vote on Murtha's suggestion to immediately withdraw the troops from Iraq. Just so the American people can see where the various Senators stand.
Posted by: DaveC | February 10, 2006 at 10:04 AM
I suppose though that if this is debated, though, that even more details that will damage the effectiveness of the program will leak out, because Senators (from both parties) are unable to keep their mouths shut when entrusted with classified information.
Posted by: DaveC | February 10, 2006 at 10:10 AM
implement and fully utilize data mining and other advanced analytical tools, consistent with applicable law;
I think you bolded the wrong part.
Posted by: Phil | February 10, 2006 at 10:12 AM
That first post is a very fair point, DaveC, but don't forget this
implement and fully utilize data mining and other advanced analytical tools, consistent with applicable law;
It's been suggested that there are other programs, and if Congress is not being adequately briefed, I don't think it is a matter of changing their minds.
Posted by: liberal japonicus | February 10, 2006 at 10:13 AM
.I'm certainly all for bringing this NSA matter up for a vote in the Senate, just like the House vote on Murtha's suggestion to immediately withdraw the troops from Iraq.
Dave, you know damned well that a) that was not Murtha's suggestion, and b) what the House voted on had nothing to do with Murtha's ideas. Why let yourself be used as a tool to peddle someone else's lies?
Posted by: Phil | February 10, 2006 at 10:13 AM
DaveC,
appreciate it, and although the program may be like this (since we have little to no details, it is hard to say) the line above you didn't highlight is "consistent with applicable law;"
That is the main issue.
There are two aspects under discussion with the NSA program.
The first is what it does. Hard to discuss without the facts of what the program is. It is entirely possible it is a wonderful system that may do wonderful things, and 99% of the American people would be fully in support of it.
The other question is whether or not it is legal. And if it is constitutional.
The adminsitaation says it is. Many people in both parties are skeptical. And Gonzales with his little side-stepping didn't help.
Posted by: john miller | February 10, 2006 at 10:14 AM
Looks like a few of us caught the wrong line being bold.
Posted by: john miller | February 10, 2006 at 10:15 AM
Ahh, lockstep liberals...
(I insert a brief note acknowledging that Phil might take exception to this, but I'm only going for the laugh)
Posted by: liberal japonicus | February 10, 2006 at 10:21 AM
The consistent with applicable law clause was in the section on the FBI doing domestic surveillance, which teh liberals present as the whole purpose of the NSA program. I disagree with that claim, especially when it is made at funerals and such.
Posted by: DaveC | February 10, 2006 at 10:33 AM
You should credit me with my restraint in saying teh liberals instead of ALL YOU LIBERALS AND THE MAINSTREAM MEDIA.
I did that for Gary's sake.
Posted by: DaveC | February 10, 2006 at 10:38 AM
DaveC, which liberals are saying that the "whole purpose" of the NSA program is domestic surveillance?
Just curious.
Posted by: john miller | February 10, 2006 at 10:42 AM
john, The 1st sentence of this post is
That's the way this issue is presented, consistently on in the papers and on the radio and TV news. and even on smart peoples' weblogs. and insinuated by ex-president at a large funeral.
I don't think that this is by and large a domestic spying program, but it is being framed that way for maximum possible political damage to the Bush administration.
And I think that in the course of the leaks and these charges our country's security has been compromised. I am not unaware that there are people who disagree with me.
Related discussion about problems with FISA program were discussed on the Hugh Hewitt show.
Posted by: DaveC | February 10, 2006 at 10:57 AM
We'll see, bob, we'll see. I think there's plenty of support in the base for an Andrew Jackson moment, but not more than 15% in the general population. Especially if the Court makes orders like Rasul: directing a procedural remedy, not actual release of anyone.
I just checked the docket in Qassim (that's the case Hil has been posting about, much more than Hamdan or Al Odah). There's one judge on the Q panel also on the AO panel: Sentelle. Just ask yourself 'how would Jesse Helms vote' and you'll have a reasonable prediction. Others on the Q panel, though, are Tatel and Garland. Both of the latter are fully capable of summoning outrage.
Briefing in Q concludes March 22.
Posted by: CharleyCarp | February 10, 2006 at 10:58 AM
DaveC:
No. If you can point to the part that recommends "and violate FISA," or "and we've now realized that FISA is un-constitutional, and thus can be ignored," let us know."I suppose though that if this is debated, though, that even more details that will damage the effectiveness of the program will leak out..."
Name three details that have leaked that damage the effectiveness of the program, please.
"just like the House vote on Murtha's suggestion to immediately withdraw the troops from Iraq.
That wasn't Murtha's suggestion, and his actual proposal wasn't put forward, and wasn't voted for.
But if you're willing to stand up for the principle that the opposing Party gets to write the Bill putting forth the "ideas" of the other party, I'll be right with you in favoring that so long as the Republicans are in the majority. I look forward to your posts advocating this, in consistency with your present advocation of this idea as regards Murtha, DaveC. When do you think you might have your first post done?
"The consistent with applicable law clause was in the section on the FBI doing domestic surveillance, which teh liberals present as the whole purpose of the NSA program."
Quote me or Hilzoy making such a claim. Alternatively, quote and cite three prominent liberals making such a claim.
"I don't think that this is by and large a domestic spying program, but it is being framed that way for maximum possible political damage to the Bush administration."
No, DaveC. It's being "framed that way," because the domestic aspect is the concern, and the surveillance of non-U.S. citizens aspect isn't. Few object to the U.S. bugging non-citizens overseas (sorry, non-U.S. citizens, but, no, you don't get the benefits of the U.S. Constitution, for the most part, when you're not citizens and not on US territory, any more than we get the benefits of your constitutions over here). But we do have an odd insistence that the Constitution applies on US territory and to US citizens whereever they are, Dave. Do you object to that?
Posted by: Gary Farber | February 10, 2006 at 11:25 AM
Gary, thank you.
I actually had to do some work and didn't get an opportunity to get back to Dave about his last statement. You, as usual, covered it in detail.
Now back to doing what I am theoretically being paid for.
Posted by: john miller | February 10, 2006 at 11:33 AM
"And I think that in the course of the leaks and these charges our country's security has been compromised."
Fine. Support your thinking with facts. Cite three.
Incidentally, I'd like to ask: where did you stand on the Waco incident? The shooting at Ruby Ridge? On the Brady Bill?
"Related discussion about problems with FISA program were discussed on the Hugh Hewitt show."
Say, DaveC, who appointed the chief judges of the Foreign Intelligence Court?
You cite Hewitt's (how, there's a guy always ready to challenge President Bush, right? How credible!) two "smart guys" discussion, including Erwin Chemerinsky, professor of law at Duke University Law School. Here's some of what he said:
So, he has a problem with what the President is doing, but he thinks it needs to be solved by Congress. Meanwhile, you, DaveC, are objecting to Congress interfering, or investigating. Right?EC continues:
Disagree, DaveC, with your own cite?To answer a question I asked you earlier: "FISA judges were appointed by Chief Justice Rehnquist."
I guess we shouldn't have liberal Justices like Rehnquist making such appointments, eh?
Posted by: Gary Farber | February 10, 2006 at 11:37 AM
Gary beat me to the Hewitt link. I'll just excerpt the closing remark.
That writ would be filed with the FISA reviewing court.
Brilliant analysis by John "[Yes to searches and] 'he could detain you without a warrant as well'" Eastman.
His "undermine the whole notion of appellate process" quote earlier in the piece is particularly nice when combined with his closing statement, too.
Hewitt, I suppose, at least deserves credit for making the transcript available. Thanks for the link DaveC, but good luck defending the pro-administration side of that content.
Posted by: CMatt | February 10, 2006 at 12:34 PM
It's worthy of note and emphasis -- the man who stood on principle (the principle that George Bush Is Always Right) to defend the nomination of Harriet Miers to SCOTUS right up through her withdrawal -- that Hewitt entitles his segment, and repeatedly refers to, "freelancing FISA judges."
That's the Court created by statute (by bi-partisan vote, in 1978, via FISA), whose judges, as previously mentioned, are appointed by the Chief Justice of the Supreme Court, hitherto of late, CJ Rehnquist, that noted radical leftist, and henceforth untrustworthy liberal John Roberts, which is appealable to a special Appeals Court, and then to the full Supreme Court of the United States of America.
So when Mr. Hewitt refers to "freelancing," what he is objecting to is the entire concept of an "independent judiciary."
Let's all take note of that, and of what's overtly suggested here. You, too, DaveC. Is having an independent judiciary, and three independent branches of government, each checking and balancing the two others, a principle conservatism now rejects? Do you reject it? Please let us know.
Posted by: Gary Farber | February 10, 2006 at 12:56 PM
For instance, here.
Posted by: Slartibartfast | February 10, 2006 at 04:14 PM
Posted by: Gary Farber | February 10, 2006 at 05:32 PM
But we do have an odd insistence that the Constitution applies on US territory and to US citizens whereever they are, Dave. Do you object to that?
Well, I suppose I would argue that Mohammed Atta and his 911 gang should not be protected from surveillance because the had actulayy made inside the country, if that is what you are saying. Yes, they were in US territory, but if that situation occurs again, I would prefer that the NSA monitors terrorist phone calls from within the US.
Posted by: DaveC | February 11, 2006 at 12:30 AM
Disagree, DaveC, with your own cite?
See, that was a discussion, with both sides represented. Hard to believe that could happen on a right-wing radio show? I linked it because it was interesting, and a real discussion.
Posted by: DaveC | February 11, 2006 at 12:34 AM
"Well, I suppose I would argue that Mohammed Atta and his 911 gang should not be protected from surveillance because the had actulayy made inside the country, if that is what you are saying."
No, Dave. That's not remotely what I'm saying. That's not remotely what anyone is saying.
As I've pointed out, I used to work in the World Trade Center. I used to live in walking distance of the World Trade Center. I have friends who lived within a block of the World Trade Center, who were unable to return to their homes for most of a year. I have friends whose close friends and relatives died in the World Trade Center. I grew up and spent most of my life within viewing distance of the World Trade Center, though the early years of my life were, of course, before it was built.
I'm unclear if any of the above is true of you.
I feel a need to say at this point that I am becoming extremely offended at your insinuations and outright statements that anyone who is a Democrat doesn't care about Mohammed Atta, September 11th, and/or terrorism.
More correctly, I am past the point of remaining patient with how extremely offensive you have been in making such remarks for several days now.
I ask you to either defend your remarks, including those I've now asked to to respond about several times, over a number of days, or withdraw them, and to meanwhile please consider not repeating variants of them.
I like you, Dave, but you are being immensely, immensely, immensely, offensive.
Until you defend or withdraw your repeated remarks -- let me know if you need a link to the previous iteration and a reminder -- I have no further interest in responding to such comments as "Yes, they were in US territory, but if that situation occurs again, I would prefer that the NSA monitors terrorist phone calls from within the US," as if anyone disagreed with you. Such remarks are unworthy of you; I prefer to think that you are a better person than this, and that you have some excuse for making such remarks, which I shan't speculate about. But clearing that up is up to you.
Posted by: Gary Farber | February 11, 2006 at 01:40 AM
DaveC:
Did you see http://riverbendblog.blogspot.com/>Riverbend's February 11 post about a raid she experienced? See, this is where you end up without a Fourth Amendment. And your willingness to allow the Fourth Amendment to be suspended for anyone effectively means it's suspended for everyone -- because the state can't tell before it searches your house, or before it listens to your calls, that you're not a member of AQ.
And you can't say they'll only search the people they know are affiliated with AQ, because the whole point of the controversy is that they are searching people of whom they are not sure enough in their suspicions -- much less knowledge -- to get a warrant. The standard for a warrant is quite low, and the judges quite generous, and yet the imposition of any restrictions at all are unacceptable.
Now, I expect from you some kind of partisan nonsense. Of course this is a losing issue for Dems. Standing up for freedom against the tyrany of the majority nearly always is.
To be fair, it seems that your conception of what NSA ought to do has some limits, ie, that you're not now willing to completely suspend the Fourth Amendment. So here are the questions for you: (a) what exactly are those limits (and you have to assume non-omniscient humans living within them); and (b) who makes sure the state stays within them (and how)?
Posted by: CharleyCarp | February 11, 2006 at 08:29 AM
And DaveC, my bet is that if you had a blank slate to work on, and the agenda expressed above, what you'd end up with wouldn't be materially different from FISA.
Or close enough that the changes that would have to be made to FISA would command substantial majorities in both houses of Congress, and among both caucuses.
Posted by: CharleyCarp | February 11, 2006 at 08:32 AM
Thank you for reminding me to check Baghdad Burning, charley. My bloglines doesn't show her updates.
I don't think I have anything adequate to say about her and her posts today. What and how she writes makes me feel she is my sister. She is Iraq to me.
Americans came to the neighborhood, took four men away, never see or heard from again.
Disappeared. This kind of disciplined brutality has a name.
Posted by: bob mcmanus | February 11, 2006 at 12:35 PM
This should have gone here, where perhaps DaveC and Blogbudsman and others are more apt to see it, than on the open thread:
Again, the Guantanamo lies. Stuart Taylor, and Corine Hegland, at National Journal. Absolute must reads, though nothing new to anyone here who has been reading Katherine and Hilzoy all along, or who has read certain other blogs all along.
Save for those lost in fantasy, denial, and wishful thinking. At best. Hi, DaveC! Hi, Blogbudsman!
Also: more Republican traitors. And I've added a set of my NSA Program-related links here. Get back to me when you're done, if you feel like checking out the facts.
Posted by: Gary Farber | February 11, 2006 at 12:39 PM
Bob, did you read about what we did to the Turks, and the results?
Tangentially, on Gonzales testimony and Glenn Greenwald.
On the other hand (sort of, not quite), what Iraqis think.
Posted by: Gary Farber | February 11, 2006 at 12:45 PM
CC: "Now, I expect from you some kind of partisan nonsense."
Not necessarily civil.
Posted by: rilkefan | February 11, 2006 at 01:13 PM
RF: Fair enough. But what I meant was an assertion either (a) that Dems would be making a mistake to emphasize this or (b) that Dems in Congress were briefed and didn't stop it.
I view either of these as 'partisan nonsense' in the context of the discussion, and that the term 'partisan' is meant to describe the subject of the nonsense, not merely the identity and motive of the purveyor.*
To respond, preemptively, to (a) and (b) -- only barely preemption, since both assertions are out there:
I sent an email last month to GF about a record called Blows Against the Empire.** If anyone in the government read that email without a warrant, I think (a) a crime has been committed and (b) whoever did it is liable to GF, me, or both for money damages. I don't care what Jane Harman did or didn't say in some WH briefing, or what Sen. Rockefeller did or didn't do on the floor of the Senate. (I don't think any "war" or theory about either me or GF would justify reading the email without a warrant. Not even, suppose, if I had sent an email to a Saudi person related to a suspected member of AQ not long before sending the email to GF).
If I find out that the email was read, I just might sue. If I do so, it won't be Hillary Clinton, John Kerry, 'the liberals,' 'the Democrats,' the ACLU, or AQ suing. And whether the suit would advance or interfere with the agenda of any of the foregoing doesn't mean they are in any way responsible for such a suit. Or have any impact on the legal merits of the claim.
*At the risk of blowing through the firewall, am I the only one who finds DaveC's writings on HOCB much more civil and rational than his contributions here? Is this because he's such a rebel that he's going against paradigm at both places? This is not a complaint, by the way, just an observation.
**What I didn't say to GF in the email, but should have, is that he should make the effort to track down the acoustic demo version of 'Hijack' that is included in the iTunes version of Blows.
Posted by: CharleyCarp | February 11, 2006 at 01:32 PM
"**What I didn't say to GF in the email, but should have, is that he should make the effort to track down the acoustic demo version of 'Hijack' that is included in the iTunes version of Blows."
I'd have to check my files to recall what I replied to Charley about the Jefferson Airplane album that was primarily Paul Kantner's project, but it was probably along the lines of that aside from being extremely well-known to rock music fans and Airplane fans of the time, the album was known to everyone in active sf fandom at the time, due to its being tied as the first album ever nominated for the Best Dramatic Presentation in 1971 (along with the album Don't Crush That Dwarf, Hand Me the Pliers by the Firesign Theater) (other nominations in the category that year were Colossus: The Forbin Project, Hauser's Memory, and No Blade of Grass). Partially due to the "generation gap" which existed as much in sf fandom as anywhere else, "No Award" triumphed. Like most years before 1977, it wasn't a very good year for non-text science fiction.
Posted by: Gary Farber | February 11, 2006 at 02:00 PM
GF, your friends at Communist Martyrs must be mighty proud of you. Using the word 'Airplane' to describe a record without Jorma!
Posted by: CharleyCarp | February 11, 2006 at 02:22 PM
Thanks, now I've got "We Built This City" in my head.
Posted by: rilkefan | February 11, 2006 at 02:31 PM
I ask you to either defend your remarks, including those I've now asked to to respond about several times, over a number of days, or withdraw them, and to meanwhile please consider not repeating variants of them
Look, I knew when I noted
that I would get hammered on the consistent with applicable law part of it, but I left that stuff in.
and I knew that in the Hewitt discussion about FISA judges, there were two sides presented.
So I am reading the stuff here, (not as much time to read all the comments these days) and when I make some comment that makes me sound like a jerk, well the discussion is framed in such a way that it is very easy to sound like a jerk, being against civil liberties, etc. So, yes I got frustrated and made a blanket generalisation, and I apologize for that. And especially to Gary, who extensively commented about Echelon and data mining in general. In my "real life" I encounter many people who disagree with me, like everybody that lives under my roof. I have found it easier to hold my tongue and not discuss anything controversial with them, and when I'm at the Unitarian church, I keep my mouth shut so as not to have any offense redirected at other family members. So I slipped up here, and I'll try not to repeat that mistake.
Posted by: DaveC | February 11, 2006 at 02:34 PM
"Using the word 'Airplane' to describe a record without Jorma!"
That's whose name is on the album. I assume a "Jefferson Airplane" credit would/did sell far better at the time (and likely any other time) than "Paul Kantner And Friends."
You can always listen to it while eating some hot tuna.
It was a nice concept album (although the story/concept was largely swiped from Heinlein's "Universe," circa 1941), but not the crown of creation.
Posted by: Gary Farber | February 11, 2006 at 02:40 PM
You can always listen to it while eating some hot tuna.
Did anyone else's mind go to a very dirty place just then?
Posted by: Anarch | February 11, 2006 at 04:43 PM
Anarch:
Is that a reference to their original working name for the band?
Posted by: wmr | February 11, 2006 at 07:35 PM
Speaking of Chavez:
"Is that a reference to their original working name for the band?"Kids! (No.)
Posted by: Gary Farber | February 11, 2006 at 07:58 PM
DaveC, I wondered about your status in a Unitarian church. My memory of the Unitarian fellowship of my childhood was that its members could tolerate just about anyone except a Republican. As a matter of fact up until middle school age I thought the designations "Unitarian", "Quaker", "Jew", and "Democrat" were just different words for the same people.
Posted by: lily | February 11, 2006 at 08:01 PM
"That's whose name is on the album"
Blows Against the Empire
I beg to differ. The first "Starship" album. AMG gives one explanation, but I would be surprised if there also weren't contractual/rights problems, i.e, Marty being a jerk. Good album, some weak songs, but at least one masterpiece, "A Child is Coming" which has an astonishing bass guitar run by Jack Cassidy. Umm, bought it on release day. Sigh.
...
"Bob, did you read about what we did to the Turks, and the results?"
I used the words "disciplined brutality" in an attempt to describe something I thought I would never see American soldiers do as a general practice. Dresden is one kind of mistake, My Lai another kind, this feels a third variety. Americans might have engaged in similar behavior in the Philippines and Vietnam.
But whatever else is wrong here, obviously a lot, I feel our soldiers are being damaged by these kinds of missions.
Posted by: bob mcmanus | February 11, 2006 at 09:57 PM
It's possible I'm misrembering, Bob.
However, the source you cite got the following wildly wrong, so it's clearly unreliable: "Blows eventually went gold, and it was even nominated for a science fiction award usually reserved for novels."
Um, no.
But you may be entirely right about the album; I lost all my LPs in the fire in '91. And thinking about it, your saying it was "Starship" (which might be what Charley was also suggesting, but that didn't occur to me when I read his comment) stirs an extremely vague memory. To be honest, though, I really don't care enough to bother googling.
"I feel our soldiers are being damaged by these kinds of missions."
I can't imagine it being good for anyone's mental health, if that's what you mean.
Posted by: Gary Farber | February 11, 2006 at 10:27 PM
"To be honest, though, I really don't care enough to bother googling."
Okay, I lied. Who am I kidding? Anyway, you're right, I was wrong. Thanks for the correction.
Posted by: Gary Farber | February 11, 2006 at 10:29 PM
I can't believe you could have thought I meant anything else. I'll leave you with the lyrics of Diana (part 2) from the Sunfighter record:
Posted by: CharleyCarp | February 12, 2006 at 12:53 AM
I was highly amused when, in the process of confirming that Hot Tuna really did spring from whence I thought, I found this article on hot tuna.
[Well, salmon sharks, really, but hey, it's their article...]
Posted by: Anarch | February 13, 2006 at 03:01 PM