Category Archives: Civil Rights

Real Resolve

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Resolve is one of President Bush’s favorite words. You can choose any of his speeches on the war on terror, or Iraq, and you’ll find that the transcript is larded with the R word.

A random example, Bush’s speech from December 12:

I’ve come to discuss an issue that’s really important, and that is victory in the war on terror. And that war started on September the 11th, 2001, when our nation awoke to a sudden attack.

Like generations before us, we have accepted new responsibilities. We’re confronting dangers with new resolve. We’re taking the fight to those who attacked us and to those who share their murderous vision for future attacks.

We will fight this war without wavering, and we’ll prevail.

But what the hell does “confronting dangers with new resolve” mean? What has actually been asked of us? With the exception of the sacrifices made by our soldiers and Marines … nothing. We go on with our lives just as before. We are not buying liberty bonds, growing victory gardens, knitting socks or rolling bandages for the troops. As illustrated by the World War I-era posters, in past wars citizens were asked to at least give up some extravagances for the war. Today the president and the Republicans in Congress won’t even consider raising taxes to pay for their war. Instead, they’ll shift the burden to the future. Our children will thank them, Im sure.

So what is Bush asking of us, except to trust him? Is that what we’re supposed to be “resolved” about?

All over the Right Blogosphere today the righties argue that Bush must be allowed unprecedented presidential powers because we are fighting terrorists. And terrorists are scary. They killed people on 9/11. They might kill more people, like me. I’ll gladly trade some civil liberties for safety.

In today’s Boston Globe, H.D.S. Greenway writes that fear is distorting our judgment.

I have no doubt that one day the Bush administration’s curtailment of civil liberties, especially the torture of prisoners, will be looked back on as a national shame. I never would have thought I would live to see the day when the president of the United States would threaten to veto a bill in Congress to ban torture, or when the vice president would spend his days lobbying Congress in favor of torture. That little shop of horrors, the vice president’s office, seems to be the place where fear regularly gains ascendancy over good judgment.

The Bush administration’s predilection to torture was clearly a result of mind-clouding fear caused by the greatest terrorist attack in history on Sept. 11th, 2001. The same can be said of the excesses of the Patriot Act, and, too, the decision to use the National Security Agency to spy on American citizens without benefit of warrant as required by the Foreign Intelligence Surveillance Act.

The Bush administration has shamelessly used fear to get its way. Both the president and vice president have tried to picture a withdrawal from Iraq as resulting in an Al Qaeda takeover of Iraq, and an Al Qaeda-led Caliphate stretching across the Muslim world. In reality al Qaeda hasn’t the remotest chance of taking over Iraq, not with 80 percent of the population either Kurdish or Shi’ite, and a timely end to American occupation might sooner lead to an Iraqi-Sunni disenchantment with foreign terrorists.

Today, righties are frantically patching together byzantine legal arguments in favor of trusting Bush. In every case, when you read deeply, you see their concern is not for the integrity of the Constitution, but the integrity of their skins. Here’s an example; keep reading to the conclusion —

I’m just guessing here, but I suspect that we have technology in place that allows us to begin intercepting phone calls within a matter of minutes after we learn of a phone number being used by an al Qaeda operative overseas. My guess is that there is a system into which our military can plug a new phone number, and begin receiving intercepts almost immediately. I hope so, anyway; and I’m guessing that the disclosure of this system to al Qaeda is one of the reasons why President Bush is so unhappy with the New York Times. If we do have such a technology, it certainly would help to explain the remarkable fact that the terrorists haven’t executed a successful attack on our soil since September 2001. And the disclosure of such a system, by leaking Democrats in the federal bureaucracy and the New York Times, makes it more likely, by an unknowable percentage, that al Qaeda and other terrrorist organizations will launch successful attacks in the future.

Translation: I don’t know what Bush is doing, but I want him to keep doing it to protect me from the terrorists.

This is not “resolve,” people. This is cowardice. This is being a herd of frightened beasts stampeding off a cliff.

My dictionary says resolve means “Unwavering firmness of character, action, or will.” I say that real resolve is not letting fear gut the Constitution.

Last June Lance Mannion wrote, “[t]hat’s why the Right hates the Left these days. We aren’t as afraid as they are. They hate us for our freedom from fear.” And now the righties are waxing hysterical because the jihadists are here! These little niceties about warrants and laws are a luxury we don’t have!

To which I say, first, no one is saying that we shouldn’t conduct surveillance on suspected terrorists. But the Bush Administration has yet to explain (to anyone’s satisfaction but a terrorized rightie’s) why it bypassed FISA, or if there was a problem with FISA why it didn’t go to Congress to make new provisions for oversight. So the argument that insisting on these constitutional niceties will make us more vulnerable to terrorist attacks just doesn’t wash. We are not choosing between safety and liberty; we are choosing between tyranny and liberty.

But what if, in some remote stretch of possibility, putting some limits on The Emperor Bush actually did increase risk of terrorist attack? I do not believe this is true, but let’s pretend. Isn’t standing on principle, even in the face of danger, the very essence of resolve? Shouldn’t we be facing terrorism with “unwavering firmness of character, action, or will” intead of running to Big Brother for protection?

White Noise

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Rightie apologists for the Bush Administration today are churning out copious amounts of verbiage to cover Bush’s ass. Here’s a good example at The Volokh Conspiracy. The writer, Orrin Kerr, piles on nouns, verbs, prepositional phrases, parenthetical citations — enough rhetorical fog to hide Cleveland — to present the appearance of an argument that spying on Americans without a warrant is perfectly legal.

This sort of argument by volume works nicely on righties, I’ve noticed. And they’ll all link to this shit and repeat it, even if they don’t quite understand it. There must be a pony in there somewhere.

And I say that if what Bush is doing is perfectly legal, then the Bill of Rights ain’t worth the paper it’s written on. As John Aravosis noted yesterday, if we applied the same hairsplitting analysis to the Second Amendment, some future President could arbitrarily cancel the Second Amendment and start confiscating firearms without due process of law. In the name of national security, of course.

End of argument. If you aren’t persuaded, several of the links below will lead you to more detailed explanations of the law.

Eugene Robinson, “Imperial Assumptions”

E.J. Dionne, “Their Own Patriot Act”

George Will, “Why Didn’t He Ask Congress?”

Richard Cohen, “Enough. Let’s Try ‘Accountability'”

WaPo editorial, “Unauthorized Snooping”

NY Times editorial, “The Fog of False Choices”

David Cole, “Bush’s Illegal Spying”

Boston Globe editorial, “Taking Liberties”

Charlie Savage, “Bush Bypassed Compliant Court on Wiretapping”

H.D.S. Greenway, “Fear Distorting the Rule of Law“

War Powers

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Jonathan Alter proves that there’s still a free press.

President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War. …

… I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president’s desperation.

Thirdparty at Kos has some questions about this meeting, here. Alter continues:

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference.

I heard several cable television commenters make this same point throughout the day … we have not been told how the NSA snooping is taking place, only that it is. And certainly terrorists communicating with people inside the U.S. must have realized the feds would likely monitor their emails and phone calls. So how in the world has national security been compromised?

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

Exactly.

The flip side of what Alter says can be found at Protein Wisdom, where Jeff Goldstein quotes Dr. Walid Phares:

The question is clear: Are we or are we not at war with the terrorists?

It’s not a declared war, nor a war of limited duration, which makes extraconstitutional “war powers” of the president problematic. Never before has Article II Section II been interpreted to mean that the President can grab more power for himself whenever he wants for as long as he wants because he thinks it’s necessary for national security. During times of invasion or other emergencies the president temporarily may act without consent of Congress. And, yes, Lincoln and FDR both took on expanded “war powers” during the Civil War and World War II. But the “war on terror” could last generations, and it’s so hazily defined that we cannot agree among ourselves who we are fighting or what “victory” will look like. For these reasons Bush must be held in tighter check than Lincoln or FDR, neither of whom overreached nearly as much as Bush has.

While jihadist cells are constantly spying to find chinks in America’s infrastructure, President Bush’s critics are concerned about how America is watching the terrorists. So far, I haven’t heard a critic asking who are we watching?

Actually, a lot of us have asked who the NSA is watching. And a lot of us suspect it isn’t just alleged terrorists.

And here comes the Big Daddy of straw men:

Or anyone requesting an update as to how many terrorists are within the U.S. So, in sum, they want the government to “catch” the terrorists but not to “watch” them. I must admit that if the 9/11 Commission was right on target regarding some fellow Americans; it is about “lack of imagination.” For till further notice, I am not able to figure out how the U.S. can catch the jihadist terrorists if it doesn’t monitor them.

See, nobody is saying we shouldn’t conduct surveillance. We are saying the surveillance must be conducted within constitutional parameters, and so far the President and his crew have not shown one good reason why they had to go outside FISA to snoop on Americans.

And how can the defense and security institutions monitor an enemy in a state of war, if it provides them with the knowledge and the technology it is using.


But that hasn’t happened. I haven’t seen a single news story that provides information about what technology is being used or how the surveillance is being conducted.

I think this story is going to be with us for a while. Fasten your seatbelts.

Strict Construction?

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Fred Barbash and Peter Baker of WaPo posted this story a short time ago:

President Bush today offered his most elaborate defense yet of his administration’s domestic eavesdropping program, saying he was legally and constitutionally authorized to implement it and obligated to do so in order to protect the country from a new kind of enemy.

In a wide-ranging news conference this morning, Bush said his authority to have the National Security Agency eavesdrop without judicial involvement derived from his inherent constitutional powers as commander in chief as well as from the authorization for the use of military force approved by Congress in the wake of the attacks of Sept. 11, 2001. “Congress gave me authority,” he said.

The “inherent powers” argument is nonsense, but I think it’s fascinating the “strict constructionists” could have found powers in the Constitution no one ever noticed before. The same people who can’t see, for example, a right to privacy in the 4th Amendment certainly have developed an expansive view of Article II Section II. And they say the Constitution is not a living document. Haw.

It is true that some presidents, notably Abraham Lincoln and Franklin D. Roosevelt, have claimed extraconstitutional “war powers.” But they did so publicly, not secretly, and they did not claim a right to flat-out ignore the Bill of Rights. I believe the closest example is Lincoln’s famous usurpation of the power of Congress to suspend habeas corpus. He argued that there was an emergency (a massive insurgency and widespread civic violence) and Congress was not in session at the time. He obtained consent of Congress after the fact. See further discussion at Findlaw. But what Lincoln did, agree or not, was very much in public view.

For more on “inherent powers,” see also Armando at Kos, here and here.

As far as the “Congress gave me authority,” argument goes, I can’t see how Congress can give authority to ignore the 4th Amendment, because that’s a power Congress doesn’t have, either. And members of Congress say they did no such thing. “The president has, I think, made up a law that we never passed,” Sen. Russell Feingold said. More here.

Barbash and Baker continue,

He expressed anger at the fact that someone revealed the secret program, saying he assumed the Department of Justice would launch an investigation to determine the source of the leak. “My personal opinion is it was a shameful act for someone to disclose this program in a time of war. . . . The fact that we’re discussing this program is helping the enemy,” he said.

And he was visibly angered when a reporter asked him what limits there were on “unchecked” presidential authority during wartime. “I disagree with your assertion of unchecked power,” Bush said. “There is the check of people being sworn to uphold the law for starters. There is oversight. We’re talking to Congress all the time. . . . To say ‘unchecked power’ is to ascribe dictatorial power to the president, to which I object.”

See, there’s what President Bush says, and then there’s what President Bush does. And I think this revelation of the President’s creative “construction” of his constitutional powers should tell the Senate to be very careful about Sam Alito and other Bush judicial appointees.

“President Bush’s acknowledgment that he unilaterally approved domestic spying is the latest piece of evidence supporting complaints that his White House operates essentially unchecked by the legislative and judicial branches,” says Dan Froomkin.

Update: More from Kos and from Kieran Healy at Crooked Timber.

Update update: Digby.

Who Knew?

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It’s hard to tell at the moment, but the righties may be retreating from the “what Bush did was within the FISA law” position. There’s one bitter ender here who is ignoring the point that the surveillance allegedly did involve private communications of American citizens. The “we were wrong” thing does come hard to some folks. But although they haven’t raised a white flag, this morning the righties seem to have redeployed to a new battlefield.

Which is: How many senators knew about the surveillance? And if they knew, why didn’t they speak up sooner?

Yesterday the Associated Press reported that Sen. Harry Reid was briefed on the extralegal surveillance “a couple of months ago,” and “whoever disclosed the existence of the surveillance program should be prosecuted.” This rightie blogger jumped in with “Which means that: (1) Reid ADMITS was informed as soon as he took over Dem Senate leadership from Daschle, (as we should expect); and (2) he accepts that the disclosure of this was a crime.”

Reid took over Dem Senate leadership from Daschle nearly a year ago, not a couple of months ago. Maybe the White House briefers were behind schedule. Should the “leaker” be prosecuted? As I understand the law, the liability falls only on people within the government who disclose classified information. I suspect that whoever let the New York Times know what was going on — “Nearly a dozen current and former officials,” according to Risen and Lichtblau — might be in violation of law regarding classified material, and Senator Reid would have been in violation of law had he disclosed it. The New York Times, however, would not be in violation for printing the story. And once the story was public Senator Reid was free to talk about it.

Please note that I don’t claim to be a lawyer. I could be mistaken.

Shakespeare’s Sister reports that some “media analyst” on Fox News said that senators who are now critical of the program were briefed about it before it started. But there seems to be disagreement on this point. Barton Gellman and Dafna Linzer write in yesterday’s Washington Post that

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA’s new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

However,

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers “no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States” — and no mention of the president’s intent to bypass the Foreign Intelligence Surveillance Court.

So we’ve wandered into “he said, she said” territory. Dicey.

Risen and Lichtblau report today that

Secretary of State Condoleezza Rice on Sunday defended President Bush’s decision to secretly authorize the National Security Agency to eavesdrop on Americans without seeking warrants, saying the program was carefully controlled and necessary to close gaps in the nation’s counterterrorism efforts.

In Sunday talk show appearances, Ms. Rice said the program was intended to eliminate the “seam” between American intelligence operations overseas and law enforcement agencies at home.

“One of the most compelling outcomes of the 9/11 commission was that a seam had developed,” Ms. Rice said on “Meet the Press” on NBC. “Our intelligence agencies looked out; our law enforcement agencies looked in. And people could – terrorists could – exploit the seam between them.”

The article goes on to quote a number of lawyers and security experts who say they have no idea what Rice was talking about. In an emergency, warrants can be obtained in minutes from the secret FISA court, and can even be obtained after surveillance has begun. Either the Bushies are hiding something, or they just don’t like to mess around with paperwork.

They Hate Our Freedoms

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Mouthpieces for the VRWC are warning darkly that challenges to the President’s powers will not be tolerated. They are calling for an investigation … of the New York Times. It is legal for the executive branch to secretly authorize spying on citizens, because the White House says so.

Bottom line: Righties hate our freedoms.

Today’s Self-Parody Award goes to the blog Let Freedom Ring, which proudly displays the blurb “The blog where pursuing liberty is everything.” You guessed it — the blogger declares that Bush has the power to wiretap without oversight, and the “leakers” at the New York Times need to be investigated.

I’m listening to the Usual Bobbleheads on ABC’s This Week, however, and even Cokie, Sam, George, and George et al. understand that Bush is engaging in a dangerous usurpation of power. They are assuming Bush meant well by it but is in the wrong nonetheless. When these boneheads get a clue, you know the Right is experiencing a massive talking point failure.

What’s more interesting to me is that the wiretap story has sucked all the air out of the Iraqi election story. We’ve not been reduced to absolute despotism, yet. So do your bit and write your representative and senators to let them know you believe the Constitution still applies.

Today the argument turns on whether the president acted legally or illegally. Bloggers across the spectrum are becoming “expert” in all manner of statutes they probably never heard of before yesterday. And some have resorted to, um, revising the statutes to be sure Dear Leader’s acts remain within legal bounds. Blogger Glenn Greenwald writes,

Defenders of the Bush Administration are resorting to outright distortions and deliberate falsehoods about the Foreign Intelligence Security Act (FISA) in order to argue that the Administration’s warrantless eavesdropping on U.S. citizens complies with the mandates of that statute. To do so, they are simply lying — and that term is used advisedly — about what FISA says by misquoting the statute in order to make it appear that the Administration’s clearly illegal behavior conforms to the statute.

This is a real case study in how total falsehoods are disseminated by a single right-wing blogger who is then linked to and approvingly cited by large, highly partisan bloggers, which then cause the outright falsehoods to be bestowed with credibility and take on the status of a conventionally accepted talking point in defense of the Administration.

A blogger named Al Maviva wrote a staggeringly dishonest post which he said was based upon what he called a “little legal research” concerning FISA. He then proceeded to deliberately mis-quote the statute in order to reach the patently false conclusion that “the President probably does have the power to order NSA to monitor suspects, without a warrant, in terrorism cases.”

This post was then cited and linked to, in some cases with approval, by several large conservative bloggers, and thereafter wormed its way up to the conservative motherload of Internet traffic, Instapundit, who approvingly linked to it. I have no doubt that — thanks to law professor Instapundit and these others Administration defenders — tens of thousands of people (at least) have now read this “legal analysis” defending the legality of the Administration’s conduct which is based on a glaringly unethical distortion of the language of FISA.

Wow, righties lied. That’s like, so, what they always do.

[Update: John Cole of Balloon Juice, who ran a correction to the Al Maviva link, says I called him a “liar.” Well, not specifically, but I can see why he might have taken offense. I apologize to John Cole. We have all been duped from time to time. I don’t apologize to Al Maviva, however. And this blog has long chronicled the pattern of misdirection and misinformation that typifies rightie “political discussion.”]

Greenwald, an attorney, continues to explain what the statute actually does say. Put simply, “the Administration engaged in surveillance in clear and deliberate violation of FISA.” See also Laura R.

The question is, why? From an editorial in today’s Washington Post:

Mr. Bush said yesterday said that the program helped address the problem of “terrorists inside the United States . . . communicating with terrorists abroad.” Intelligence officials, the Times reported, grew concerned that going to the FISA court was too cumbersome for the volume of cases cropping up all at once as major al Qaeda figures — and their computers and files — were captured. But FISA has a number of emergency procedures for exigent circumstances. If these were somehow inadequate, why did the administration not go to Congress and seek adjustments to the law, rather than contriving to defy it? And why in any event should the NSA — rather than the FBI, the intelligence component responsible for domestic matters — be doing whatever domestic surveillance needs be done?

The obvious answer is that the NSA surveillance served some political agenda. I strongly suspect (i.e., am damn sure) that if all the facts were known, we’d find out that some surveillance was conducted on Bush critics and political opponents, not enemies of the U.S.A.

A few quick points:

First, several rightie bloggers are comparing the New York Times “leak” of the FISA violations with the Bush Administration leak of Valerie Plame’s classified status. If the latter was wrong, so is the former, they say. But the morality of the acts depend on whose interests are served — the powerful, or the people? When the powerful use “leaks” to manipulate the news and mislead the people, that’s wrong. But when a newspaper uncovers illegal activity by the powerful, that’s why there is a First Amendment.

Second, no one is saying that the government should not conduct surveillance on possible terrorists. That’s not the issue. The issue is that Bush usurpsed a power that law and the Constitution do not give him.

Third, Democrats should use this episode to remind voters that conservatives don’t believe in a right to privacy.

See Doctor Who at Kos, Avedon, and Billmon for more.

Patriot Act Update

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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

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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?”

This Way to the Gulags II

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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.

Justice Goes the Way of FEMA

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Dan Eggen writes in today’s Washington Post:

The Justice Department’s Civil Rights Division, which has enforced the nation’s anti-discrimination laws for nearly half a century, is in the midst of an upheaval that has driven away dozens of veteran lawyers and has damaged morale for many of those who remain, according to former and current career employees.

Nearly 20 percent of the division’s lawyers left in fiscal 2005, in part because of a buyout program that some lawyers believe was aimed at pushing out those who did not share the administration’s conservative views on civil rights laws. Longtime litigators complain that political appointees have cut them out of hiring and major policy decisions, including approvals of controversial GOP redistricting plans in Mississippi and Texas.

None of us alive today will live long enough to see all the damage corrected that the Bushies have done.

At the same time, prosecutions for the kinds of racial and gender discrimination crimes traditionally handled by the division have declined 40 percent over the past five years, according to department statistics. Dozens of lawyers find themselves handling appeals of deportation orders and other immigration matters instead of civil rights cases.

Get this:

The Bush administration has filed only three lawsuits — all of them this year — under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial case was the Justice Department’s first reverse-discrimination lawsuit, accusing a majority-black county in Mississippi of discriminating against white voters.

Why are we not surprised?

Steve Soto:

This is your Bush Justice Department at work, five years along now, ignoring votings rights and race, age, and sex discrimination cases against employers in favor of directing its Civil Rights Division staff towards deportation cases. In other words, Bush is turning a blind eye to the original mission of the division, and pleasing his corporate check-writers in the process, by having newly hired and more ideological attorneys pursue politically-driven immigration and deportation cases. These cases don’t deal with the civil rights of our citizens, and should be handled by attorneys elsewhere in the federal government. …

The administration’s defense is that each administration gets to do what it wants, as it reflects the voters’ preferences. Really? I don’t remember voters telling us that they support letting Big Business dump older white workers to be replaced with younger cheaper staff. I don’t remember voters telling us that they want the concerns of women and minority workers ignored. And I don’t remember voters telling us that they want voting rights cases ignored either. Yet that is what the Ashcroft and Abu Gonzales Justice Departments have been doing

DemFromCT says,

We hurt ourselves when we give up the moral high ground. It’s a theme that you can’t repeat enough. We see it in arguments about terror and torture, about Abu Ghraib and “tough treatment” (e.g. waterboarding). We’ve begun to see it in arguments about immigration (think Minutemen). And this administration, led by Cheney and his new chief of staff, have led us down (not up) in these last five years.

To a rightie, “moral high ground” is “whatever I feel like doing must be right, ’cause Jesus loves me.”

The only saving grace is that the incompetence of many of the Bush appointees prevents the complete control of the levers, but (alas) this seems to be the one thing they’re actually good at. And the trust issue at some under the surface level is wrapped up with this as well. If you don’t hold the moral high ground, how can you trust the President in wartime or disaster time or at any time?