Patriot Act Update

See Charles Babington, “Senate Deals Setback to Bush on Patriot Act” at the WaPo web site:

Backers of a proposed four-year extension of the USA Patriot Act failed to shut off Senate debate today, preventing a vote on the matter and dealing a setback to President Bush on a major issue involving anti-terrorism efforts and civil liberties.

The Democratic-led filibuster drew enough Republican support to keep the president’s allies from gaining the 60 votes needed to end debate in the 100-member chamber. The 52-47 vote will require the White House and congressional leaders to seek another way to deal with the scheduled Dec. 31 expiration of key aspects of the law.

Apparently, today’s news about 4th Amendment violations had an impact:

In today’s Senate debate, several lawmakers cited a New York Times report disclosing that Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying.

September 11 Cancelled the Bill of Rights

The blogosphere is having a full-blown war over Bush’s unilateral deletion of the 4th Amendment from the Bill of Rights. (See New York Times story here; my comments here.)

Nearly to a blogger, righties are saying damn the Constitution.

One of the High Priestesses of Totalitarianism herself, Michelle Malkin, dismisses those of us who are concerned about a clear violation of the 4th Amendment as “civil liberties Chicken Littles.” “The real headline news is not that President Bush took extraordinary measures to protect Americans in the aftermath of the Sept. 11 terrorist attacks,” she wrote, “but that the blabbermouths at the Times chose to disclose classified information in a pathetically obvious bid to move the Iraqi elections off the front pages.”

And, of course, the other reason the Times pushed this non-story, according to Malkin, was to promote James Risen’s book about the CIA and the Bush Administration, to be published by The Free Press in January 2006.

One big flaw in this theory is that The Free Press is an imprint of Simon & Schuster, which is the publishing operation of Viacom Inc. It has no ties to the New York Times (although it does publish Wall Street Journal Books). So there’s nothin’ in it financially for the New York Times. Ergo, no compelling reason for the Times to push the book, which isn’t mentioned in the story, anyway.

And the same story appears in the Washington Post, by Dan Eggen. Does Eggen have a book coming out, too?

Scott Lemieux at Lawyers, Guns & Money has a good one-paragraph summation of the rightie position.

You’ll like this: Malkin writes,

Civil liberties extremists pretend there are no tradeoffs, no costs, to putting legal absolutism over national security.

Civil liberties extremists? Legal absolutism? What Bush signed off on was a bleeping violation of the 4th Amendment!

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.

Ain’t no exceptions provided for. The federal government does not have the authority to spy on citizens without a warrant. End of story.

Update: See also — a John Bolton connection? At Kos, Susan G writes, “This is about the very foundations of democracy: Is the government our servant or our master? And is the president, who is elected to execute our laws, allowed to suspend them?”

“Bush Folded”

Peter Wallsten writes in today’s Los Angeles Times (“McCain Held All the Cards, So Bush Folded”):

The agreement reached Thursday on legislation prohibiting the inhumane treatment of suspected terrorists in U.S. custody marked a rare capitulation by a president who campaigned for reelection based on his self-styled resolve when it came to the war on terrorism.

But it was also a recognition that, 13 months after a solid victory at the polls that seemed to put Bush’s White House in position to make transformational policy changes, the president is approaching his highest priority — fighting terrorism — from a position of political weakness.

Continue reading

This Way to the Gulags II

James Risen and and Eric Lichtblau report in today’s New York Times that President Bush once again violated the Bill of Rights for the sake of “security.”

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

Let’s see …

Amendment IV

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.

So how is monitoring emails and telephone calls without a warrant not a bare-assed end run around the 4th Amendment?

The Times says “Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight.”

Get this:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

“Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans.” What safeguards? Oh, the same ones that prevent the feds from engaging in torture, operating “black site” prisons, and holding Jose Padilla for 3 1/2 years without bringing charges (see 6th Amendment), just because? Yeah, I’m reassured.

“The number monitored in this country may have reached into the thousands over the past three years.” And includes a lot of Bush’s political opposition, no doubt.

Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.

That’s actually funny, if you think about it. It’s not like a crew could sneak up to the Brooklyn Bridge sometime when no one was around and start blowtorching.

What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.

Post 9/11 it can’t be all that hard to get warrants if you’ve got any probable cause against somebody. So what’s wrong with getting warrants? Somehow, we limped through all previous wars and even the Cold War without going this far.

“The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation’s intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials.” Then streamline the bureaucracy. Don’t run the Constitution through a shredder.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., “Can the National Security Agency, the great electronic snooper, spy on the American people?”

“Generally,” Mr. Mueller said, “I would say generally, they are not allowed to spy or to gather information on American citizens.” President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

Yeah, who needs those pesky checks and balances? The executive branch needs to have unfettered power to do whatever it wants. That’s the American way.

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the legality of the program. But nothing came of his inquiry. “People just looked the other way because they didn’t want to know what was going on,” he said.

This is the path to totalitarianism, you know.

Oliver Willis writes,

There are going to be some folks who say “no big deal”, because in their world it would be okay for the entire CIA to go inside someone’s rectum because the president waved his hands around and said “terrah”. It’s so hard to care anymore.

He’s right. I noticed a number of rightie blogs — some of the same ones who are excited about how we’re bringing “democracy” to Iraq — are busily making excuses for the Bushies. Like we’re too cool to need the Bill of Rights any more.

In the comments to this blog post, someone actually wrote — “If you aren’t doing anything illegal you should have nothing to worry about.” That’s right; the classic line uttered by toadies to totalitarianism throughout history. The lessons of history don’t apply to us, though, because we’re America.

Not any more.

See also: Monitoring books but not guns.