Tuesday, January 24, 2006

Defending The Indefensible

President Bush's greatest trump card with his base has been the misconception that he's a straight talkin' dude, just layin' it out proper for the American people. That's complete garbage, of course, as Bush is just as much a political animal as any other in Washington. That's why it comes as no surprise that he's back out on the road again, trying to defend the war in Iraq, again. However, he's added a new attraction to his dog-and-pony show of political spin: defending his abuses of executive power.

Now, I've written about this before but, given my recent absence and the maddening inability of the "So-Called Liberal Media" to cover this issue with any sort of investigative prowess, it bears bringing to the forefront again. First, here is some of what President Bush is saying, most recently at a speech given at the University of Kansas, via The Ministry of Truth's website:

It's what I would call a terrorist surveillance program. After the enemy attacked us, and after I realized that we were not protected by oceans, I asked people that work for you -- work for me, how best can we use information to protect the American people? You might remember there was hijackers here that had made calls outside the country to somebody else, prior to the September the 11th attacks. And I said, is there anything more we can do within the law, within the Constitution, to protect the American people. And they came back with a program, designed a program that I want to describe to you. And I want people here to clearly understand why I made the decision I made.

First of all, it seems likely that Bush may, assuming he's telling the truth, be the only person of his generation that actually believed being "separated by oceans" made America safe from its enemies. The oceans certainly didn't seem to slow the British much, and that was 230 years ago. I'm a member of Generation X, and even I can remember the almost constant undercurrent of fear in the country that, at any moment, the Soviet Union might launch its nuclear arsenal and begin WWIII. Especially for those folks living in Alaska, where Siberia is practically next door. As I've noted before, the "Straw Man" logical fallacy is one of the Right's favorites; predictably Bush's protected-by-oceans straw man fails to stand any scrutiny. Further, if Bush really did exhort his staff to work out the domestic spying plan, then he really needs to downsize some staff. They are not the one's risking impeachment for violating FISA; the President is.

First, I made the decision to do the following things because there's an enemy that still wants to harm the American people. What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why.

This addresses another charge lobbed at liberals frequently in the country, ie., that we don't understand the threat to the country. I say "au contraire"; I understand the threat to the country just fine. I remember September 11, 2001 with crystal clarity. I was one of the millions evacuated from the Chicago Loop by Mayor Daley and I can still remember watching people crouch in the street every time a jet flew over towards O'Hare, thinking the Sears Tower was next. I'll carry that memory with me until my dying day, I'm sure.

However, the reality of the 9/11 attacks didn't strip me of all reason and critical thinking ability, as it apparently did to a large chunk of the country. Unlike, say, our President, I actually understand the difference between religious terrorists and secular dictators. I also understand that the "price of freedom" that conservatives love to drone on about is often paid by innocent Americans. Sometimes our freedom costs us our lives and I, for one, wouldn't have it any other way. I'll die in a democracy any day before I live in a dictatorship.

Furthermore, the threat from religious fundamentalists and other fringe groups has always, always been a danger to the United States. The attacks of 9/11 were special for their theatrics, not their intent or their cause. It's a danger the U.S. will always face. However, I refuse to go into a pants-wetting paroxysm of fear every time some primitive Middle Eastern religious fundamentalist makes a new VHS tape. And I don't need Generalissimo Bush to strip the civil rights out of our society to make me feel better about the foreign religious nuts who want to kill Americans. Hell, we've had domestic religious nuts killing Americans for years, and the last time I checked, the country was still standing.

This is a -- I repeat to you, even though you hear words, "domestic spying," these are not phone calls within the United States. It's a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States. I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress, one of whom was Senator Pat Roberts, about this program. You know, it's amazing, when people say to me, well, he was just breaking the law -- if I wanted to break the law, why was I briefing Congress?

It really incenses me further that our President seems to think that breaking the law is just a joke; a frat house prank that the popular kids are in on and the nerds are taking too seriously. Apparently Bush had the wrong kind of lawyers reviewing his work; perhaps even the strictly conservative monarchist type that believe in unitary executive power. Perhaps some other attorney's, such as the ACLU, might not have agreed with Bush's preferred view of Presidential authority.

Regardless of how the program was vetted, the facts remain simple and straight-forward. It is illegal to spy on American citizens without a warrant. Period. End of discussion, unless someone wants to start a bill in Congress to repeal FISA. Nowhere, not one place, in the Constitution is the President ever given the authority to ignore the law, for any reason. Nor is such authority ever implied anywhere, either in the Constitution or in the writings of those who wrote it. Eavesdropping on Americans' phone conversations without a warrant is illegal under FISA and a violation of the Fourth Amendment.

Bush continues to defend his law-breaking with the excuse that the NSA was only spying on those receiving calls from "the terrorists". A lie, plain and simple. If that were true, then the White House could have gotten a warrant from any court in the land. The fact that they did not can only mean that they knew or at least suspected that they could not get a warrant for those on whom they were spying. Some suggestions I've read have included journalists, such as CNN's Christianne Amanpour, or Leftist political organizations, such as PETA or Greenpeace. Regardless, the more Bush defends his domestic spying program with the "only spying on the terrorists" defense, the bigger the elephant in the room becomes.

Federal courts have consistently ruled that a President has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority. Recently there was a Supreme Court case called the Hamdi case. It ruled the authorization for the use of military force passed by the Congress in 2001 -- in other words, Congress passed this piece of legislation. And the Court ruled, the Supreme Court ruled that it gave the President additional authority to use what it called "the fundamental incidents of waging war" against al Qaeda.

I'm not a lawyer, but I can tell you what it means. It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It's an -- you've got the power to protect us, but we're not going to tell you how. And one of the ways to protect the American people is to understand the intentions of the enemy. I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why -- to protect you.

Again, more of the same misleading defense. Of course the President has the power to use surveillance techniques against foreign enemies; that's what the Foreign Intelligence Surveillance Act does! However, the President does not have the power to arbitrarily select the target of foreign surveillance. The President is required to take that request to the FISA court, demonstrate probable cause (which is the standard given in the Fourth Amendment for searches and seizures) and seek a judicial warrant. It's the separation of power that is key to our government structure. The FISA court has only denied 6 warrants since its inception in 1979. It is impossible to make a credible argument for illegally side-stepping the FISA court in the name of expediency. If the FISA court is too slow, then Bush can appoint more judges to the court. That actually is within the realm of executive power under the Constitution. Or Bush could go to any court in the land to get a warrant; establishing that they are calls coming from Al-Qaida is probable cause for surveillance.

The entire canard about the Congressional authorization for the use of force is complete garbage as well. The authorization does not, in any way, shape or form, repeal either the FISA or the Fourth Amendment. In fact, when asked why the White House didn't just take its surveillance plan to Congress, Attorney General Alberto Gonzalez admitted it was because they knew Congress would deny the President that authority. They knew they were breaking that law and they knowingly continue to break the law. That must be grounds for impeachment under any reading of the Constitution.

For the curious, here is the text of the Fourth Amendment, since many, including Bush, Gonzalez and Former NSA Director General Hayden (via Atrios), seem confused about it:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Finally, I completely reject Bush's paternalistic nonsense towards "protecting" me. Do you really want to protect me, Mr. President? Then how about bringing our National Guard back from your illegal occupation in Iraq? How about a single-payer national healthcare plan in case I lose my job or get hurt in a car wreck (a very real possibility in my recent life)? How about a comprehensive plan for protecting our ports, our chemical factories and our nuclear plants? Most importantly, how about respecting the laws and the Constitution that are the bedrock of the nation I love? That'll do, for starters...

[Mia culpa for the infrequent posting of late. I've fallen victim to a common affliction that all accountants are in danger of, called "fiscal year end". It's symptoms include loss of time, loss of higher brain function and a loss of temporal orientation. Generally, those afflicted recover after a time, as I have, or shake out of the industry to become landscapers. Fortunately, my lovely wife Gifted-1 has helped to fill in and this absence has left me with a whole lotta axes to grind.

"I'm full of piss and vinegar! I used to just be full of vinegar..." - Abe Simpson]

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