Now, O king, issue the decree and put it in writing so that it cannot be altered—in accordance with the laws of the Medes and Persians, which cannot be repealed."
Daniel 6:8
In his post “Code Violations”, Scott asked some pointed questions about the legality of the telecommunications companies’ cooperation with warrantless surveillance with regard to the law as contained in the United States Code. The appeal made in the post was, in my view, to the inviolate nature of the laws that these companies and the current administration purportedly violated and how this violation proves the wrongness of the activity.
Fortunately for us Americans, unlike the Medes and the Persians, our laws are not inviolate. They can be and are often changed for a variety of reasons. This ability to change our laws represents one of our greatest strengths as a republican democracy: the ability to adapt and change our governance to keep it consistent with the circumstances at hand.
When the current body of telecommunications and foreign surveillance laws were originally crafted, their writers did not anticipate the circumstances that currently challenge those laws. Those writers did not anticipate a situation where our intelligence agencies are a fraction of the size and budget that existed at the time the laws were crafted. Those writers did not anticipate a situation where an enemy was present on American soil in numbers sufficient to be a military threat.
Those writers and very few Americans anticipated a situation where 19 foreign militants would take advantage of the protection of those laws to strike and kill nearly three thousand of our fellow citizens. Since 9-11, attempts have been made to rectify the significant shortcomings those laws proved to have in fighting an enemy that is not a state and already among us, but those attempts themselves have failed to appreciate the sheer scope of the threat.
The result of this shortcoming has been that the current administration chose to more widely execute an already existing executive power. From the moment that decision was made, the administration, the legislators in oversight, and the professionals of the executive agencies knew this was an inoptimal decision that would have to eventually be resolved legislatively rather than executively. Before the existence of this temporary solution was made into a headline, the administration and the Congress were already working to resolving the problem.
Now, this resolution is stalled, not because it is unneeded, but because some want an admission that the original laws were broken. Some want the inviolate nature of the original laws to be confirmed before they can be amended to more adequately deal with the circumstances that actually exist now and were not anticipated when they were crafted.
Hypocritically, some of those who want this admission were involved in the crafting of the original laws, were aware of the temporary solution, were involved in the derailed solution, and were part of drafting the current compromise. What purpose does this appeal then serve? Not to make the law better, no to solve the problem, not to give the professionals the tools they need, but to score political points against an opponent that something was done wrong.
Even this desire to score political points would be forgivable if some kind of alternative was being offered, but instead the demand is that the inadequate laws be left in place and wrongdoing be admitted. Meanwhile, America’s enemies continue to exploit flaws in its own laws against it. How many political points are scored with dead citizens?
I know that there will be many, many people who disagree with my view. Some have gone so far as to declare the government the enemy because it violated the law, ignoring the damage the enemy has done exploiting the same. Nevertheless, the one option we do not have is to do nothing, because that option has already been proven not to have worked.
There are compromises that can be reached that would likely make everyone happy. Some options might even leave these much vaunted laws untouched. Of course, any of these alternatives cost the kind of money that very few seem to be willing to spend and require a political will of their own.
What remains is that inadequate laws governing telecommunications and foreign intelligence need to be amended to deal with the circumstances at hand. Will we manage to accomplish that task, or will our belief in the inviolate law simply make us victims of our own rigidity?
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11 comments:
"Fortunately for us Americans, unlike the Medes and the Persians, our laws are not inviolate."
They are, actually. You break them, you're supposed to be punished for it. Full stop. They can be changed by established constitutional means, but that doesn't mean you can break them at will or by some non-existent secret executive fiat.
I could give a damn about scoring political points. If someone knew it was happening and looked the other way, let them hang too. I'm not here in service of a political party, or pitching for a candidate. I'm here talking about what happened and what should be done as I see it. Not as the Democratic Party sees it (which is the imputation I derive from this response to my post).
I'm not pushing a political agenda, I'm pushing a Constitutional agenda. I want there to be a rule of law. I want those laws to apply to everyone whether they have a D or an R after thier names. Green Party? Libertarian? Hang 'em all, and get someone in here who gives a damn about their oath of office.
The adminstration violated the law. You can make all the excuses for them that you want, but you cannot CANNOT deny that the laws on the books were violated. I quoted them to you. I linked to them. If they weren't violated I defy you to tell me how. Because the current need to move forward doesn't change the central salient point I made in the previous post. There were laws on the books. They were remarkably clear. Everyone knew them. And (apparently) everyone violated them.
Does this mean the laws need to change? Maybe. Does this forgive the previous transgressions? No. That's what the rule of law is all about. Without it you have anarchy and I won't tolerate that.
The laws going forward will be much the same. They will be written by the legislative, signed by the executive and reviewed by the judiciary. And if they're broken, then hang them too.
I'm sick of hearing "Yeah we broke the law, but..."
Don't do the crime if you can't do the time. The telecoms will cooperate next time if the laws are on the books to compel them to. Saying they won't is an attempt by the administration to cover their own asses and holding up the laws in the name of this political maneuvering is nothing more than an 'attempt to score cheap political points' when by their own estimation and press releases, they are leaving the country in peril as they dither.
You've made my point for me, Scott.
"Does this mean the laws need to change? Maybe. Does this forgive the previous transgressions? No. That's what the rule of law is all about. Without it you have anarchy and I won't tolerate that."
When did the rule of law become the absolute enforcement of its letter even in cases where the law is wrong or incomplete? If that were the case, then why do we even need constitutional courts? If the law is the law, then there is no need for it to be challenged or changed because, as you say, it is absolute. Transgressions are transgressions, whether the law is changed or not, so we all should hang for speeding as much as warrantless surveillance, even if later law proves the first to be wrong.
If I judge your statements correctly, you would let someone rot in prison even if they are guilty of violating a bad law. That's not the rule of law, that's tyranny and the very thing the Founding Fathers rebelled against.
When it’s a law some believe in, the violators are criminals. When it’s a law some disagree with, the violators are dissidents. Sounds pretty subjective to me.
Your appeal to the absolute nature of an imperfect system is frightening.
Are you seriously saying that the president violating his oath of office, in direct contravention of Constitutional dictates is tantamount to me speeding down the I-5?
Because if you are... I don't even know where to begin.
I don't understand how so many people of supposedly high moral fiber can be so willing to overlook the high crimes and misdemeanors of our government. Hell, Republicans wanted to castrate Bill Clinton for getting a BJ in office, but can't seem to muster the minimal amount of outrage it takes to be concerned about transgressions against the Constitution. We are so screwed.
First, Scott is right. Check out Article I, sections 9 and 10 of the Constitution. I quote from Section 9: "No bill of attainder or ex post facto Law shall be passed." This applies to the federal government. And this from Section 10 applies to the states: "No state shall . . . pass any bill of attainder, ex post facto law. . . "
Here's a link to Article I, and here's a link to an explanation of ex post facto law.
Second, while I agree with you, Denny, that the adaptable nature of our republic and its laws is a strength, your statement that "When the current body of telecommunications and foreign surveillance laws were originally crafted, their writers did not anticipate the circumstances that currently challenge those laws" is wrong.
The original FISA bill was penned in 1978, but has been updated NUMEROUS TIMES since 9/11/2001. In fact, along about 2002 the President himself touted the law as just what we needed to fight the terrorists. I don't think our intelligence agencies have shrunk that much under Bush's watch, but if they have then why aren't you spending more time holding their feet to the fire for that than trying to defend their unConstitutional behavior?
Third, "Those writers did not anticipate a situation where an enemy was present on American soil in numbers sufficient to be a military threat." I don't even know where to begin with such a statement.
It's false on its very face. You can't possibly believe that even in 1978, no one had the imagination to envision an invading foreign army on our soil. In the middle of the Cold War? Less than two decades after the Cuban Missile Crisis? No. Even allowing for the fact we thought we'd be bombed more likely than invaded. No.
Further, even our own government doesn't believe this is true or they would have put us under martial law immediately. We clearly don't have "a military threat" running amok in our streets.
Terrorists use terror as a tactic specifically because they pose little or no military threat. You know that. If you insist on this fiction, however, then be prepared to let go of your support for the Iraq War because it clearly isn't succeeding in the "fight them over there so we don't have to fight them here" aim the administration purports to have.
Fourth, "Those writers and very few Americans anticipated a situation where 19 foreign militants would take advantage of the protection of those laws to strike and kill nearly three thousand of our fellow citizens."
By this standard all criminal acts are proof of the weakness of the laws meant to "prevent" them and thus we should either get rid of all the laws or enact a totalitarian surveillance state to ensure no one can do anything without the government being aware of it. Oh, wait. That's exactly what's happening. Score one for the "good guys."
Fifth, "Even this desire to score political points would be forgivable if some kind of alternative was being offered, but instead the demand is that the inadequate laws be left in place and wrongdoing be admitted."
Denny, I know we're trying to be civil, but when you keep using the words and arguments of people who are trying to deceive the American public, then you open yourself up to criticism. You'd do much better to rely on your own obvious intellectual gifts and stop relying on whoever it is you're relying on.
For the record, to the best of my understanding -- please feel free to check me on this -- the House Bill that the administration is fighting does exactly what you argue for except it does not grant telecomm immunity. It "fixes" the supposed holes in the existing law but allows for previous wrong-doing to be exposed. So what possible argument could you have against that? That the telecomms won't break the law again if asked?
Finally, from your comment to Scott, "When it’s a law some believe in, the violators are criminals. When it’s a law some disagree with, the violators are dissidents. Sounds pretty subjective to me."
Doesn't this rightly apply to your take on the situation as well, Denny? You're willing to overlook THIS case of illegality because it fits into your worldview, but how do you feel about gays in the military? What was your take on the Clinton situation? I don't know you well enough to know on which issue your statement makes you a hypocrit, but I do know you well enough to know you have one.
I sincerely don't mean that to impugn your character. I believe you aren't intentionally hypocritical. We've all got those gaps, and I think that all of us here at AHOCF are looking to expunge them. Here's a chance for you.
I still don't understand why you spend so much of your intellectual capital defending an ethically challenged administration, when you continually concede that there are other optimum solutions. Argue for those. Spend your time and space in this blog making the argument to the American people that you really want to make instead of continuing to present fictions about the current cancer in our midst. Everytime you defend them, your credibility suffers. Don't tie your kite to their perfidy. Put forth a bold new ethical course for us to follow if you have one.
The tyranny of the constitution still puzzles me, so I eagerly await a clarification from Denny on that one. I'm refraining from further response to your initial response pending clarification of your actual position as I don't wish to assume your intention without giving you such a chance.
However... upon re-reading the original post I see that you mis-characterize my position a bit in the following paragraph...
"In his post “Code Violations”, Scott asked some pointed questions about the legality of the telecommunications companies’ cooperation with warrantless surveillance with regard to the law as contained in the United States Code. The appeal made in the post was, in my view, to the inviolate nature of the laws that these companies and the current administration purportedly violated and how this violation proves the wrongness of the activity."
My appeal wasn't that the violation of the law proved the wrongness of the activity, only that the violation of the law proves that the law was violated and it's time for the courts to weigh in... for the American people to be given their day in court.
Your phrasing 'the laws that these companies and the current administration purportedly violated' seems to imply that my previous post left some doubt that the law was broken.
I again defy you to logically defend that position if in fact you really hold it. I linked to the applicable laws, I explained how they were violated. Tell me how they weren't broken.
Scott, I overstated myself with the speeding statement. Consider that specific statement retracted as it is presented.
"I'm not pushing a political agenda, I'm pushing a Constitutional agenda. I want there to be a rule of law. I want those laws to apply to everyone whether they have a D or an R after thier names. Green Party? Libertarian? Hang 'em all, and get someone in here who gives a damn about their oath of office."
Does that mean we will be seeing your ads on TV in the near future?
As in will I run for office? I dunno, considering my stance that every American be ready and willing to die rather than sacrifice one line of our Constitution, do you think anyone would vote for me?
Everyone would know exactly where you stand. You might get elected due to the shock value!
(laughs)
If I ran for office, I think Kristin would kill me and bury me in the rosegarden.
Having looked into the other site now, I think I feel comfortable vouching for them... as a blog (must be specific here). They are affiliated with two prestigious organizations that do not suffer fools lightly, the Walter Cronkite School of Journalism & Mass Communication at Arizona State University and the Berkman Center for Internet & Society at Harvard University Law School.
Their intent is pure, though from a brief survey I'd say that their product is only as good as the person writing it and their contributors vary wildly from the folks who essentially cut & paste from other sites (as with the linked poster) with the apparent aim of provoking discussion to more serious attempts at 'grass roots journalism'.
I was - up to this point - unaware of this program/site. I am intrigued by their concept.
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