[T]hat government of the people, by the people, for the people, shall not perish from the earth.
-The conclusion to the Gettysburg Address, President Abraham Lincoln, 1 June 1865
The Civil War was the greatest Constitutional crisis the United States ever faced, not just because of the obvious schism of the Republic, but also because of the things the government of the United States, including President Lincoln, decided to do to weather the conflict. Yet, even in the midst of that crisis, the goal of the Union was always clear: to preserve the Republic against forces that would destroy it from within and from without.
That effort was a difficult, costly, and bloody one. Things were said and done during that effort that still reverberate through American society one hundred forty three years after it ended. Broad wounds left from that effort took decades to heal. Some scars are still visible, and some argue that those scars have not completely healed.
In 2008, new threats loom against the Republic both from within and without. Much like the government of 1861 discovered, the counters to these threats are neither always clear nor always the best. Unfortunately, as with all threats in all times, the government of the United States in 2008 must respond with the resources it has available to it, not the resources it wishes it had.
The chief role of the Executive of the government of the United States is to preserve the Republic. Without the Republic, there is no Constitution, there are no citizens, there are no liberties, there are no laws. In 2001, President George W Bush, seeking to fulfill his role against the threats he and his administration perceived as arrayed against the Republic, authorized the warrantless surveillance of individuals in the United States believed to be operating in a military capacity against the United States in cooperation with foreign enemies.
According to the Congressional Research Service (.pdf, 44 pages), every President since Franklin Roosevelt has asserted the right to and used warrantless surveillance against perceived threats to the Republic. Since the Carter administration, warrantless surveillance has been a regular part of every administration’s actions to counter terrorist threats. Warrantless surveillance against agents of foreign enemies is a well established and well documented method for countering the threat these agents possess.
The matter at hand in the several posts on A Host of Contributing Factors has been whether or not the President violated established law by using warrantless surveillance to gather information on the activities on fundamentalist Muslim jihadis working on behalf of al Qaeda and other similar organizations and--I am speculating--working on behalf of some nations against the United States.
Empirically, I do not believe this violation has occurred, for the very same reasons that Lincoln, Roosevelt, Carter, Clinton, and Bush did not believe they had occurred. I believe these violations have not occurred because there is a well-established and historic body of evidence saying that the current administration has acted in accordance with the actions of many previous administrations in dealing with threats against the Republic in times of crisis.
I believe that the current problem that lies before the administration and Congress is that the current body of law that exists to describe the bounds of this well-established and historic authority of the President did not anticipate the contradictions within that body of law itself. A particular portion of this contradiction is granting immunity to telecommunications providers when this authority is exercised. This immunity is important not just to protect telecoms from liability for cooperating, but also to prevent the disclosure of sources, methods, and means in open court, thereby compromising active intelligence operations and personnel.
I also believe that this method of collecting intelligence against foreign agents is the worst solution to a very complicated and ongoing problem. The administration has made countless decisions in implementing and carrying out this program that would have been far better done through better legislation and its accompanying oversight. I have and continue to advocate for those better solutions even as I grant that the existing solution must be allowed to continue until those better solutions exist.
Further, I believe these solutions are necessary because, like any conflict, the current conflict is not isolated to a single front. Certainly, fighting our enemies in Afghanistan and Iraq has substantially reduced those enemies’ ability to bring the fight to us, but they still have some capacity, and it is that capacity these solutions are designed to protect against. In the same way that Civil Defense was organized to combat the domestic threats posed by America’s enemies during World War Two and the Cold War, so these solutions in conjunction with law enforcement combat the domestic threats posed by our enemies now.
I think the problem that has presented itself in the warrantless surveillance debate and is repeated in so many of the debates surrounding the actions of the current administration since 2001 is that one side in the debate typically demands that the other side concede or agree to some significant point before any further debate can be had. As a result, there is no opportunity to move beyond the point of concession because these are often fundamental points that the other side cannot concede.
I do not and will not concede that warrantless surveillance has violated the law, nor will I ask anyone who believes that such surveillance does violate the law to set aside that belief before I am willing to discuss better ways to solve the problems of collecting intelligence against foreign agents on American soil. I also grant, even with as strongly as I state my position, that I may still be wrong; however, I believe that the case for my being right is compelling and I will stick with it.
If those who believe that I am wrong wish to pursue their conclusion to its logical course, that is their right, even their Constitutional responsibility. I find that such a pursuit is destructive in a time of conflict, but I concede that our nation is capable of enduring even that kind of destructive behavior if it sets its mind to it.
In the mean time, my greatest wish is to move beyond the “Bush lied, broke the law, knows the size of my underwear…” debate to come up with solutions to the problems that remain whether anyone concedes or not. It is clear to me that our government and its supporting appendages in think tanks and like organizations are so fixated on one problem that no one is coming up with solutions. In the same way that the border with Mexico remains unsecured because of the Washingtonian fixation on comprehensive immigration reform, so the United States remains vulnerable to the actions of the agents of foreign enemies because one side of the debate wants someone to go to jail.
If someone going to jail is the solution to this impasse, then fine, I volunteer. In the meantime, let’s concentrate ourselves on finding solutions to this mess before it really does destroy the Republic.
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34 comments:
I find several things curious about this post. The first, though not the foremost, is your selective reading of the CRS Memo/Finding you linked to, which doesn't support the point you were trying to use it to illustrate. What it *actually" says us that prior to FISA being passed in ’78, the Church Commission found that every president from FDR to that point had made use of and advocated a Presidential right to conduct warrantless surveillance. It makes no mention of Carter, Reagan, Bush the elder or Clinton except to note Carter's enthusiastic support of the FISA legislation.
“As the Senate Judiciary Committee noted in its statement of the need for legislation:
‘The need for such statutory safeguards has become apparent in recent years. This legislation is in large measure a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused…While the number of illegal or improper national security taps and bugs conducted during the Nixon administration may have exceeded those in previous administrations, the surveillances were regrettably by no means atypical. In summarizing its conclusion that surveillance was “often conducted by illegal or improper means,” the Church committee wrote: Since the 1930’s, intelligence agencies have frequently wiretapped and bugged American citizens without the benefit of judicial warrant . . . . . past subjects of these surveillances have included a United States Congressman, Congressional staff member, journalists and newsmen, and numerous individuals and groups who engaged in no criminal activity and who posed no genuine threat to the national security, such as two White House domestic affairs advisers and an anti-Vietnam War protest group. (Vol. 2, p.12)
* * * *
The application of vague and elastic standards for wiretapping and bugging has resulted in electronic surveillances which, by any objective measure, were improper and seriously infringed the Fourth Amendment rights of both the targets and those with whom the targets communicated. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information — unrelated to any legitimate government interest — about the personal and political lives of American citizens. The collection of this type of information has, in turn, raised the danger of its use for partisan political and other improper ends by senior administration officials. (Vol. 3, p. 32.)”
http://www.eff.org/files/filenode/nsaspying/nsa_research_memo.pdf
This was penned during the Carter Administration attendant to the debate as FISA was being created. So by my count, this implicates seven administrations. FDR, Truman, Eisenhower, Kennedy, Johnson, Nixon, and Ford. Carter not only signed off on FISA, but actively supported it (“The Act received broad support in Congress and from the then Attorney General Griffin Bell and President Carter. –ibid), so scratch Carter off your list, he ran into the waiting arms of FISA. Ford is well known for issuing Executive Order 11905 which severely curtailed the actions of all intelligence agencies and specifically the NSA to foreign signal intelligence, so I scratch Ford off your list too. So, if you ignore those Presidents who acted to curtail domestic surveillance or were operating under the full auspices of a Congressional declaration of war… the list shrinks to 3 (since neither Korea or Viet Nam were ever formally ordained by congressional war declaration). It also stops growing after FISA is passed... until recently.
I would also point out that while the court has yet to explicitly decide on this case, the controlling body of law noted over and over in the aforementioned CRA memo lies in the Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) decision and concurrent opinions that have governed the understanding of the scope of Executive Power in war and peace since the 50's. Essentially it lays out that - absent specific Congressional guidance (in the form of laws expressing congress' opinions on the matter - the president’s executive writ is as broad as he can make it stick. In the presence of congress specifically outlining laws to the contrary of his actions, the president’s powers are at ‘their lowest ebb’.
Congress has certainly made their will known on the subject of domestic surveillance. Repeatedly they have stated that they were of a mind to curtail and guide such actions even during a time of declared war as they have in the two major sets of laws currently on the books, Title III and FISA plus the telecommunications act linked to in a previous post. All three of these laws govern this specific activity (electronic surveillance) and provide a legal framework within which it is legal and without which it is not. As it was stated by Justice Robert Jackson in his concurring opinion on the Youngstown decision. (ibid)
No inherent presidential right can be construed, a conclusion to which the CRA memo also arrives ere the end.
So that leaves the president to argue that the Authorization for Use of Military Force - September 18, 2001 also authorizes his actions off the battlefield and in the domestic arena. It doesn’t and since you've yet to allege that it does, I shall leave that one lie.
Which leaves us with two pleasantly complimentary sections of the owner’s manual to guide us as the Buick of State starts to make funny noises under the hood. Article I, section 8 of the US Constitution specifies that the Congress shall have the exclusive power “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” And the president "shall take care that the laws be faithfully executed.”
I’m glad you linked to the congressional memo, it helped me solidify for me why I’m right.
So here we sit, and you have categorically refused to concede the point of lawlessness in the face of evidence that you yourself presented to us. I find that odd. But then the whole concept of a unitary executive is odd to me, so that shouldn't surprise anyone.
As to the rest of your post… the Civil War analogy is nice, but since the actions under Lincoln so far predates FISA and electronics for that matter, that I find the wartime excesses of the Union Leadership to be less than germane. But if you wish I will concede that Lincoln’s suspension of Habeus Corpus was without merit… but that gets us back to Bush again and I don’t think that’s what you had in mind. Since I have myself alluded to a rhetorical civil war currently underway with the future of the republic at stake, perhaps I will pursue that to its logical conclusion at another time.
I also find your comparison of Civil Defense during WWII to the covert legal and ethical morass of the NSA Domestic surveillance program to be ... I don't know what. But how can you seriously compare a public, organized and morale-lifting effort that engaged the citizens in the war effort and create a sense of every citizen is a soldier in the fight against the (fill in the blank) to these secretive back-room antics? They don't compare. At all.
I also want to make one thing abundantly clear: the only concession I have asked of you is that you define your terms and that you explain the incongruities evident in your recent posts. Not that you concede your points, but that you explain them in a manner that shows the consistency of your thought process, peel things back to show the underlying logic, which I confess is not readily apparent to me at this point. Several questions are hanging, only one of which you have addressed to any degree of detail with this most recent post.
I'm given to wonder what you expected when you decided to create this blog and invited intelligent people of diverse beliefs and backgrounds to have an ongoing and reasoned discussion and/or debate about the issues of the day.
Do things get personal here? Damn right. And well they should. Because this isn’t a cooking blog. This is a blog about Issues, and Politics and Philosophy and Belief, as well as technology, and modern life… and occasionally AAA baseball. And if you raise an issue, it’s damn well going to get examined, cross-examined, questioned and dissected. We can keep it civil, but we can’t stop just because you don’t have the answers to our questions, and from here that’s exactly what it looks like. I waited all day to respond to this because I am trying to understand a way to view your recent post in some other light and I just don’t see it.
If you’re not willing to answer questions posed to you about your positions, then why bother launching a public debate? Our questions reflect confusion in our minds about what you’re saying or why, or because we find something contradictory. Only by questioning your thesis can we determine which issues are genuine incongruities and which are simply in need of clarification. Such as how your previous posts about narrowing presidential powers jives with your current argument for a unitary executive? Draw that line for me, because I can't see it.
Are you attempting to shift the discussion from ground where your position is held as an article of faith rather than reason and move it to ground where you feel you have a more solid and logic-based argument? I only ask because you seem to be asserting that answering our questions at all somehow requires you to concede a central premise of your thesis.
It’s an interesting debate tactic, but if that is what you’re doing, then I – for one - am not willing to let you get away with it. If so, then in most circles that would be evidence that your thesis needs to be revised. Or not, I'm not here to tell you want to do, I'm here to debate the issues.
We can engage in parallel debates if you like and we can even talk about the Iraq War if you really don’t care that peoples’ dander is going to get up. I’m a big boy, I can take it. And I can move along without holding beliefs you may embrace which are contrary to my own against you. I don’t insist that anyone agree with me, but if you’re going to propose something counter to mine, it had better hold up under scrutiny because I am going to ask questions until you stop answering or I fully grok what you’re on about. If I find that I agree with something you’ve said, I will tell you as I have before. If I find myself persuaded by your arguments, I shall tell you that as well. What I am flatly not willing to do is proceed onward into yet another debate wondering if it will be allowed to reach any kind of conclusion before it's halted by someone who can’t or won’t continue without fully understanding which it is (can't... or won't).
If that’s what we’re doing here, or where we’re headed, I have better things to spend my time on. We all have to either thicken our skins, agree to debate in good faith and give credit for points scored or abandon the field.
You claim that you’re willing to admit if you’re wrong, yet you refuse to allow us to get to a point where it’s possible to put water in your thesis and check it for holes. If your positions are all held as an article of faith, immune from questions and logical assault, then... debate is pointless and we might as well forget it. No debate can gain a hold on that kind of faith because it exists in a space devoid of friction. You are entitled to that, but if that’s your premise then this whole exercise devolves to all of us posting duelling manifestos and where's the fun in that?
I think we need to assess what our goals are, what we’re doing here, and if we want to proceed because it seems that we are moving in directions that aren't constructive.
Oh. And my underwear is a size 32.
Scott, as a point of clarification, I used the CRS memo not to validate my entire point, but to point out the historical nature of the debate. My linking of the secondary point to the CRS memo was unintentional.
Also, my response has nothing to do with anything being taken personally. Rather, it is clear that in this case, as has been previously said about discussing the causes and current endeavor in Iraq, there will be no consensus. The only opportunity appears to be for concession, and no one appears to be willing to do that. Instead of engaging in an ongoing tit-for-tat debate with no foreseeable conclusion, I suggest moving on to debates that have the potential for conclusion. Perhaps another approach will allow this debate to be seen from a different angle.
As to the rest of your point, my point is that the Executive Branch of the United States government has long concluded that it has Constitutional powers that allow for the limited application of warrantless surveillance for the purposes of national security. I have looked at their justification (also cited in the CRS memo and elsewhere but not quoted here) and agree with their rationale.
The problem, as I see it, is not that I have not answered your--and David's--questions, but that I have given answers you do not like. If it is necessary, I will once again state why I think the way that I do, but even that restatement will not change the fact that I disagree with your conclusions.
Again, this is not an attempt to avoid debate, but to allow the debate to go elsewhere. This post represents at least the fifth post on this subject along with (literally) more than a hundred individual comments. In that great body of writing, nothing has changed. You and others claim the law has been broken and that people need to be tried. I claim that the administration and others have been acting in conjunction within their Constitutional mandate and in accordance with historical precedent. No one seems ready to change their minds.
Now, if there are specific points that you still do not think I have responded to, point them out and I will respond to them in kind. Otherwise, there are plenty of other things to debate about that may well be far more productive.
Scott, in an effort to continue and clarify the debate as you have suggested, I present here a summary of my rationale for supporting warrantless wiretapping:
1. The most important function of the federal government is to preserve the Republic. Without the Republic, the Constitution is meaningless. Article IV Section 4 supports the primacy of this concern. This is not to suggest that the government does not have other functions--obviously, it does--but to say that preserving the Republic is the first responsibility.
2. The President’s oath of office binds him to protecting the Constitution, therefore to preserving the Republic as his primary function. As the Chief Executive, the President therefore becomes the primary agent of the preservation of the Republic. As an aside, this primary function leads me to conclude that the President’s primary role is as Commander-in-Chief.
3. The Republic faces a threat that exists internally; that is agents of the enemies of the United States, both natural citizens and foreigners, are operating on American soil. In order to preserve the Republic, the President is obligated to identify these agents and prevent them from doing harm.
4. Current federal law requires the President to present probable cause in order to conduct surveillance against and act against these agents, yet provides inadequate or no methods for establishing this cause beyond using evidence of actual activity (e.g. using a terrorist attempt or act to conduct surveillance against and act against accomplices). I contend that the President’s actions should be preventative not punitive.
5. In order to discover probable cause and thereby comply with the requirements of federal law, the President must have some mechanism to establish that cause.
6. Lacking other expedient methods, the President directed the intelligence agencies of the United States to engage in warrantless surveillance to discover cause against these enemy agents. This method represents an established and historical authority used by multiple administrations. This method is also in keeping with historical precedents established by other administrations acting to preserve the Republic in times of crisis.
7. This method is employed to establish probable cause in order to comply with the law. I have found no example of someone who was discovered, had ongoing surveillance conducted against them, and was arrested all by using warrantless means. If such an example exists, I am interesting in seeing it. Therefore, the use of warrantless wiretapping does not violate the law, but represents action in the absence of effective law.
8. The 2007 suspension of this practice does not represent an admission of wrongdoing, rather the existence of several practical realities. First, the original New York Times article represents a compromise of specific intelligence sources and methods, requiring the cessation of this operation to preserve lives and activities. Second, the administration clearly believed that it had collected enough intelligence to allow for continued operation of other intelligence activities without needing to establish further probable cause. Third, since the method of warrantless surveillance was already compromised, then administration used that time to attempt to reach an agreement with Congress to establish laws that more effectively deal with the circumstances that led to the warrantless surveillance to begin with. Finally, the administration identified one aspect of this solution needed to be protection of cooperating telecommunications companies from civil lawsuits in the absence of previously clearly defined law.
9. Therefore, the President’s, his administration’s, the intelligence agencies’, and the telecoms’ actions do not represent a violation of the law but an attempt to fulfill it in the absence of clearly defined legal means for the law’s fulfillment. What remains, then, is to create these clear legal definitions so that this problem does not persist.
I grant that this enumerated explanation may not satisfy anyone any more than anything else I have said on this subject to date. It is for this reason that I originally suggested moving on toward other subjects, but in the spirit of keeping this debate alive, I present my view for the massacre that will likely follow. Nevertheless, I am more than willing to endure that disagreement, which I do not take personally (if I did, I would have quit long ago), and will respond to it as best as I can. I will also unilaterally present other aspects of this debate for discussion in the hope that doing so will help create agreement and solutions and help this debate as well.
Denny, the multiple circularities inherent in your argument boggle my mind. I'll set aside quibbles for the moment to look at some of the more egregious examples.
I think the root of the problem begins somewhere in the interaction of points 4 and 5. I find point 5 -- "In order to discover probable cause and thereby comply with the requirements of federal law, the President must have some mechanism to establish that cause" -- particularly malodorous.
My first problem is the "thought crime" aspect of it. You are basically arguing that since we don't have probable cause against someone, we must find probable cause; we must dig for it because it is not apparent. I understand how your paranoia about invisible enemies on our soil can make that sound logical to you. Since I can't out-logic paranoia, I'll move on to this: your argument at this point requires the following logical conundrum to work: "Sometimes to uphold the law, you must break the law."
Your 6th point really gets at the malevolence of your argument though. Again, I'm forced to leave aside "quibbles" about expedience as a reason for law-breaking to point out the illogic at the heart of your argument, and I dare say, your political belief system.
You say that the President directed the intelligence agencies to "engage in warrantless surveillance to discover cause against these enemy agents." If we didn't even have enough information for probable cause to get a warrant to tap these people, how the F*** do you know they're the enemy!? And if you KNOW they're the enemy, how F***ing difficult would it be to get a warrant from the FISA court which has only denied a warrant about two dozen times in its 30 years of existence? At this point . . . right . . . HERE, you should be giving your own argument a serious review because right HERE is where you show that you are willing to believe what you believe merely because you already believe it.
Point 7 actually MAKES Scott's and my case: "I have found no example of someone who was discovered, had ongoing surveillance conducted against them, and was arrested all by using warrantless means. If such an example exists, I am interesting in seeing it." Yeah, we'd like to see it too, but the government is trying to block any findings of it's heretofore and still largely SECRET activities. They continue to do so despite good-faith efforts by the House of Representatives to address its valid concerns about security. In the face of an actual solution to the stated problem, the administration (and you as their apparent surrogate on this blog) continues to obfuscate. I swear to God, Denny, if this were the Clinton administration you'd be running naked in the streets demanding impeachment!
You then go on to say, "Therefore, the use of warrantless wiretapping does not violate the law, but represents action in the absence of effective law." I'm flumoxed. First, "therefore" doesn't even belong in this sentence. Your statement doesn't follow from anything else you've said, therefore there can be no therefore. In fact, this flies in the face of the actual LAW which Scott and I have explained and the text of which is freely available to you and has, I believe, been linked to on at least one occassion. To me this is the strongest proof that you are not being honest with us about your willingness to change your mind. You have repeatedly been shown the law, had it discussed in context, you have repeatedly had your statements SHOWN to be false, but have continued to make them again and again. I have to ask: are you incapable of learning or merely unwilling?
I contrast this with my own incalcitrance (how DO you spell that word?). You've offered up "Jihad Watch" as evidence of the huge threat of Islamofascism or whatever name we're using this week to capture headlines. Scott has already voiced my own take on it, not that Jihad Watch is completely without factual merit, but that it overstates its case because it has an agenda to push. Agenda pushing is no sin, but mischaracterizing facts might be. In contrast to this kind of biased source, we've shown you THE LAW. Not an opinion about the law, but the actual LAW. And yet . . . .
Point 8, in part, reads, "Finally, the administration identified one aspect of this solution needed to be protection of cooperating telecommunications companies from civil lawsuits in the absence of previously clearly defined law."
The absence of previously clearly defined law? I . . . you . . . I . . . what!? I think you can only make this statement because you don't understand it. The law, however, was very clear what constituted legal compliance with the government and what was illegal. Why the hell else do you think they think they need immunity and amnesty?
Our trip through fantasy land takes us to point 9, "Therefore, the President’s, his administration’s, the intelligence agencies’, and the telecoms’ actions do not represent a violation of the law but an attempt to fulfill it in the absence of clearly defined legal means for the law’s fulfillment." By this point, I shouldn't even have to explain what it wrong with this statement. Do I?
Denny, you don't have to change your opinion. You don't have to concede that you are wrong. Merely state the truth. Repeat after me, "I believe what I believe because I believe it. My President would never harm me, unless he were a panzy-ass Democrat with no taste for war. Otherwise, any Republican President who agrees with my already held beliefs may do anything he pleases to see that my agenda is made real. By definition, it is good because I say it is."
And as a related, side point. If you aren't upset that your government is morally adrift right now, why aren't you at least upset that the Bush Administration -- an Administration who for six years at least made Congress its bitch -- didn't do more to fix what you claim (and I largely agree) are the core problems with our ability to gather intelligence about our enemies? You have spent countless words defending warrantless surveillance because you say that we don't really have any other tools at our disposal, yet the administration has had two terms and a largely compliant Congress to fix those very issues. Where the hell is your righteous indignation about THAT!
There's more to defending the Republic than merely shooting its supposed and real enemies. There's also upholding its principles and laws. "Without the Republic, the Constitution is meaningless"? The converse is also true, without the Constitution, the Republic is meaningless.
To overestimate your enemy is just as dangerous as to underestimate him. Neither of us are in a real position to prove to the other the true extent of our current enemy, but from what I do know, I think you severely overestimate them. Unfortunately, that has to remain opinion. And just as unfortunately for this blog, I think that issue forms a HUGE basis for both sides of the arguments put forth here. Based on other things you've said, assuming you to be honest in your assertion of them, only a belief in a phenomenally dangerous and imminent enemy could make you willing to so blithely put aside the law, ethical behavior, and the core principles of this Republic in the name of saving it.
David, what constitutes probable cause that someone is a terrorist? How does such a fact become established?
Second, how is it that you and Scott are so apolitical yet I am a Bush syncophant because I happen to agree with him on this issue?
By the way, Clinton was impeached for lying under oath to a grand jury about getting a blow job, not because he got one.
Third, when did your understanding of the Constitution and the law become absolute?
I disagree with yours and Scott's conclusions. Just because you believe you are right does not make it so. Just because some other people agree with you does not make you right.
Finally, the only flaw in my logic is that you and Scott do not agree with it. Your attempts to present how wrong I am merely appeal back to what you've already said and what I already disagreed with, now peppered with the unquestionable accusation that I am just an apoligist for a political agenda that I don't understand.
Hence my unwillingness to continue such a debate because it's not a debate. You will only be happy if I say you are right, which I cannot do because I believe you are wrong.
Enough.
One more thing (I can't help myself):
How is it that you are willing to declare your elected government of fellow citizens as enemies deserving the full enforcement of THE LAW while casually disregarding actual enemies who have killed Americans domestically and abroad as almost harmless and practically undeserving of action?
I ask you the same questions you have asked me: Do you really know what you are talking about? Do you actually know how agents of enemies of the United States are discovered when they are in the United States? Do you understand the actual application of the telecommunications and surveillance laws as they apply to the collection of classified intelligence? If so, how do you know?
It's easy to whip out a few paragraphs from the Constitution or the US Code and try to use them to justify reasoning or a position. It's much harder to take those paragraphs and apply them to real world situations with real world consequences. The difference between your reaction to the Bush administration and the administration's reaction to the circumstances is that the administration knows, as much as is possible, what is actually going on. It is for that reason alone that I grant them their rationale and no other.
I do so simply because I have been in far less important but similar positions in my own experience. It is often hard to justify one's decisions when one cannot explain the whole story out of necessity.
I would have this same reaction to whatever administration is in office. I accepted GHW Bush's reasoning for not taking out Saddam Hussein in 1991 even though I disagreed. I accepted Clinton's decision not to take out bin Laden by more effective means than cruise missiles after Khobar Towers, the African embassy bombings, and the USS Cole even though I was skeptical. I have accepted GW Bush's decisions on the GWOT and Iraq even though I have often disagreed. These were not political decisions, they were practical ones.
We can talk as much as we want about rhetorical civil wars and all that, but at the end of the day, federal governments are responsibl for protecting their citizens, and I have more than presented my view of why this particular aspect of that protection follows both the Constitution and federal law. You are free to disagree, but your disagreement does not change my position. If you feel that strongly about it, then you are obligated to do something more than talk about it and so am I. Otherwise, what has been done has been done.
And for the record, I have worked in telecommunications and information technology for the military since 1994, most recently as a planner and engineer. I understand exactly what the Bush administration has asked for, how it is implemented, and can easily imagine how the resulting information can be used. Even armed with that knowledge, I still ultimately agree with the decision that has been made.
Denny,
1) "What constitutes probable cause that someone is a terrorist?"
I'll put the question back on you. Why do we choose someone for surveillance in the first place? What "causes" this to happen?
2) "Second, how is it that you and Scott are so apolitical yet I am a Bush syncophant because I happen to agree with him on this issue?"
That's an excellent question. I don't know the answer. I only know that you persist in defending the administration as it continues to obfuscate the issue, publicly lie, and attempt (quite successfully so far) to impose what I consider to be an illegitimate theory of government on us. And you have done so in the face of information that I find pretty damned compelling, namely the law itself.
"By the way, Clinton was impeached for lying under oath to a grand jury about getting a blow job, not because he got one."
A distinction without a difference according to your worldview. What possible difference could his lie about sex have made to our national defense. After all, by your own admission the terrorists have been after us for some time. All that falderall certainly must have distracted Clinton at a time of great national need. If it can't be allowed now, why then?
3)"Third, when did your understanding of the Constitution and the law become absolute?"
It isn't absolute, nor does my argument rest on such an absurd assumption. I am comfortable saying, in this instance, that my understanding surpasses your own, however. Read the law in question and tell me where I've made a mistake.
"I disagree with yours and Scott's conclusions. Just because you believe you are right does not make it so. Just because some other people agree with you does not make you right."
No, Denny, you're right. Believing that you're right doesn't make it so. My problem is not that you disagree. My problem is that you continue to repeat false information about the law in question and allow your misunderstanding of the law cloud your opinion about the issue, yet continue to act as if your opinion on the matter comes from some factual basis. Believe as you will, but when you traffic in false information and I'm aware of it, I will call you on it.
4) "Finally, the only flaw in my logic is that you and Scott do not agree with it."
Once again, you invert cause and effect. I won't speak for Scott, but I don't agree with your logic because it IS flawed.
"Your attempts to present how wrong I am merely appeal back to what you've already said and what I already disagreed with, now peppered with the unquestionable accusation that I am just an apoligist for a political agenda that I don't understand."
My attempts appeal back to what I've already said because that's the information you need to correct, if not your opinion, then at least the grounds upon which you hold it.
"Hence my unwillingness to continue such a debate because it's not a debate."
True. The actual debate ended awhile ago. Now we just have disagreement.
Scott and I have demonstrated or provided you with information that clearly shows your repeated claims about the need for telecom amnesty to be false. We have pointed you to the law in question and its history of (recent) change, completely debunking your absurd claim that the writers of the law couldn't possibly have envisioned the current situation. You've tried to claim the law wasn't broken because it was broken so that the law could be enforced, a claim so absurd on the face of it that I'm surprised you actually typed it and hit send.
Your opinion, when we boil away the falsehoods and poor logic, is that it's ok that Bush et al. broke the law because they were attempting to protect us and that's a higher purpose than even the law. Fine. That's an opinion. I disagree with it, but there's little I can do about it. Unless the Bush administration is successful in its desire to make the views of the Executive branch the only real law of the land. When that happens and I become President, I can have you hanged and there won't be a court in the land that can help you. Oh, and I'll be able to torture you until you recant. Don't forget that.
"You will only be happy if I say you are right, which I cannot do because I believe you are wrong."
Denny, my happiness is not at issue here. You represent a mindset that I believe to be a threat to our nation. You are not alone. There is little that is original about your thinking. The marks of your sources are all over your statements. The broader problem is that too many people have been able to spew these ideas unchallenged because of a variety of factors that include a less than vigilant media, a misguided sense of patriotic duty (in so much as silence about our government's activities is encouraged while we're "at war"), and an administration all too willing to use falsehoods and innuendo to heighten the sense of fear of a real, but not as threatening as portrayed (in my opinion) enemy.
There is a far broader pattern of threat to the current administration's actions than can possibly be covered in a single post or response (though Scott did a brilliant job awhile ago to highlight them).
You live in a country whose government, if not its people, has eagerly embraced torture. It condones this because it is torture of the "enemy." Yet the administration has done everything in its power to make the lawful identification of the "enemy" nigh impossible. Instead, it has imprisoned people with little or no evidence of guilt and has continued to imprison those people even in the face of exculpatory evidence when it is found.
This is an administration that believes that the President can do whatever he damned well pleases, not so much as Commander-in-Chief (although that makes it easier for the fear-frenzied people to swallow the theory) but just because he's the President.
And this corruption is rife within the Republican party -- a party whose ideals I would otherwise embrace -- which has followed the President lockstep for seven years now. And the architects of this unitary executive, America as the world's moral cop, invade for whatever passing interest pleases us theory are now lined up behind John McCain who lacks the spine to oppose them.
I'm a small man in a big world. I have a vote that may or may not actually count. I have a voice that reaches like 40 feet. And I have words. I'm nobody, and I don't have a mass forum or a magic pill to reach a broader audience. But I have been invited to participate in a blog where many of the same ideas I see put forth and stand unchallenged everyday appear. So long as I am a member of the blog (something you can change whenever you wish), I'm not going to let fear-based logic and misinformation stand unquestioned and uncommented upon. Frankly, it's the only reason I continue to post or respond because the rest of it is an exercise in vanity. We don't make policy, and last time I checked, no one was particularly interested in what we have to say.
"How is it that you are willing to declare your elected government of fellow citizens as enemies deserving the full enforcement of THE LAW"
I believe that no one is above the law and that our laws apply first and foremost to the citizens of this country and that it is especially important for those who lead us to follow them, you know, since they MADE them. I believe this because my understanding of the principles behind the Constitution tells me so.
while casually disregarding actual enemies who have killed Americans domestically and abroad as almost harmless and practically undeserving of action?
When you decide to characterize my position accurately, I'll answer the rest of your question.
"I ask you the same questions you have asked me: Do you really know what you are talking about? Do you actually know how agents of enemies of the United States are discovered when they are in the United States? Do you understand the actual application of the telecommunications and surveillance laws as they apply to the collection of classified intelligence? If so, how do you know?"
I don't recall asking you these questions, and you certainly haven't answered them if I have. I'm not an expert in the field, no. There, now you are free to discard everything I've ever said on the matter. Sleep tight.
"the administration knows, as much as is possible, what is actually going on. It is for that reason alone that I grant them their rationale and no other."
And there have been people in the administration who disagree with the conclusions that have so far won the day. They usually get fired or have to resign, though, which I guess just proves how unfit for real leadership they are.
"I would have this same reaction to whatever administration is in office. I accepted GHW Bush's reasoning for not taking out Saddam Hussein in 1991 even though I disagreed. I accepted Clinton's decision not to take out bin Laden by more effective means than cruise missiles after Khobar Towers, the African embassy bombings, and the USS Cole even though I was skeptical."
This is interesting since what we're talking about here is agreement or disagreement. You accept it because you are powerless (or nearly so) to do otherwise. The fact that you disagree is the relevant point here. So your comment doesn't make much sense to me.
"I have accepted GW Bush's decisions on the GWOT and Iraq even though I have often disagreed. These were not political decisions, they were practical ones."
Again, you accept because you can't do otherwise. What exactly have you disagreed with Bush about? You support our Iraq adventure, though from what I can recall, you might wish we had pursued it more aggressively. (If my memory is faulty here, forgive me. I'm not trying to mischaracterize your position.) If my recollection is correct, then there isn't a substantive disagreement there, just an acknowledgement of poor planning. You seem to agree that warrantless surveillance is warranted. What do you disagree with Bush about as regards the GWOT?
“ You've tried to claim the law wasn't broken because it was broken so that the law could be enforced, a claim so absurd on the face of it that I'm surprised you actually typed it and hit send.”
What I actually said was “[T]he use of warrantless wiretapping does not violate the law, but represents action in the absence of effective law.” The law does not contain the provisions you claim that it does, thereby requiring the administration to act outside legislative guidance until such guidance is established. The mistake the administration, perhaps even the Congress, made was not pursuing such legislation sooner.
The laws both you and Scott have cited over and over and over again do not provide for mechanisms to establish probable cause in the case of agents of foreign enemies already operating on American soil for which no other probable cause has been established. In my estimation, such probable cause can only be established by observation, and the most effective observation, due to the nature of the enemy, is through direct surveillance of individuals.
Further, you mischaracterize what the administration has done with regard to this surveillance. It has not been proved that a single case of this surveillance has been used to directly secure an arrest, detain someone, try someone, or incarcerate someone. Instead, this surveillance is being used to gather the needed causal evidence to secure warrants to do those things. Because the law does not provide for means to accomplish that task, other means were used.
"What exactly have you disagreed with Bush about?..."
Now who's using a hammer? This approach is coarseness rather than finesse.
Yes, I agree that we needed to do something about Iraq, but that does not mean I grant the administration a blank check. Iraq has been done badly under bad justifications from the very beginning, but it still needed to be done even if it should have been done differently and for different justificaitons. Currently, my support is practical rather than ideological: we have what we have, let's get the job done.
Yes, I support the administration's use of warrantless surveillance as a means to gather causal evidence. If it is being used for more, I oppose it. It's that simple.
The problem with this entire debate, as I see it, is that it has revolved around a coarse versus fine understanding of what is going on. I make fine distinctions because they are necessary in a complex situation and I do not accept coarse distinctions as the end statement on any subject of this kind of magnitude.
As a result, your continued statements that my understanding is inacurate, misguided, and clouded rely on accepting your coarse understanding rather than relying on my own--I believe--finer conclusions. I reject that conclusion outright as surely as I stick to my own.
"The laws both you and Scott have cited over and over and over again do not provide for mechanisms to establish probable cause in the case of agents of foreign enemies already operating on American soil for which no other probable cause has been established."
So you only know that the person you're listening in on is a foreign agent when you hear that he is?
"In my estimation, such probable cause can only be established by observation, and the most effective observation, due to the nature of the enemy, is through direct surveillance of individuals."
I'm so confused. So it's ok, in your mind, to listen in to I don't know how many people illegally so that you can find the bad guys so that you can get a warrant to listen to them legally. Is this what you're arguing for?
"Further, you mischaracterize what the administration has done with regard to this surveillance. It has not been proved that a single case of this surveillance has been used to directly secure an arrest, detain someone, try someone, or incarcerate someone."
Neither Scott, to the best of my knowledge, nor I have actually characterized the government's actions this way. This is your own straw man creation of our argument. We've only contended, as has come to light, that they listened when the law prohibited them from doing so.
"Instead, this surveillance is being used to gather the needed causal evidence to secure warrants to do those things. Because the law does not provide for means to accomplish that task, other means were used."
Because the law didn't allow us to do what we wanted, we did it anyway. That's your argument. "Other means were used." OMG! You've got the passive voice and everything. "Mistakes were made." You should go into PR for the government. You're a natural.
Your last response (about "fine" and "coarse") reminds me of the conversation between Jeff Goldblum's character and Tom Berenger's in The Big Chill.
Michael: I don't know anyone who could get through the day without two or three juicy rationalizations. They're more important than sex.
Sam Weber: Ah, come on. Nothing's more important than sex.
Michael: Oh yeah? Ever gone a week without a rationalization?
Wow, this has all become very silly.
I wonder how everyone would be reacting if Clinton had been using warrantless surveillance... Oh, wait he was, only no one knew about it back then. Maybe he can join me and Bush in jail...
In the interest of injecting some calm into the debate, I would like to make a couple of points.
While I never said anything about people prosecuted using the knowledge so-acquired, I think it meet that we take due note that the CRS report stated that the FISA court has only ever published (as of the date of the memo) one case. From this we can reasonably derive that there's no way of telling how this information is being used before the FISA court. Similarly, in the complete absence of oversight, there is no chain-of-custody to review to see into whose hands this information has been passed.
Also noteworthy is that the twwnty terrorist plots that trumpeted as proof that intelligence agencies and programs (including presumably, the herein hotly debated signals intelligence gathering by the NSA) in the that Fox News story Denny linked to awhile back would indicate that the intelligence gathering is bearing some kind of fruit and that prosecutions are coming of it. Many of those prosecutions - such as the Fort Dix attack - are of American citizens.
It being impossible to prove a negative, it's likewise impossible to say that the signals intel gathered in this warrantless fashion has NOT led to the capture of anyone American or otherwise. We only know that Guantanamo isn't empty.
When the administration makes use of intel to capture someone, they've made a habit of slipping them into the Guantanamo Oubliette. Until the Hamdhi case, where the Supreme Court smacked the Administration for alleging the power to selectively suspend recourse to the courts for American Citizens (such as Padilla) to challenge their incarceration under Habeas Corpus. Ergo it is similarly impossible to say that Signals Intel gathered illegally (as alleged by me and David) has not borne fruit in terms of captured individuals since the Military Tribunals are not public or published in their deliberations and great care has been taken to seal the evidence against the people brought before said tribunals.
In challenging us to prove a negative, Denny, you are setting out to prove one yourself and failing. The use of the intel gathered is not in evidence and cannot be introduced unless you have more access to the NSA or Gitmo than you've so far displayed.
Out of honest curiousity, can you somehow illustrate the roots of your belief in the Unitary Executive? Perhaps cite some sources or scholars we can go read up on rather than casting aspertions at one another... or at least recommend some further reading to us that will show us the logical structure of your beliefs.
You continue to allege my Democrat leanings simply because I oppose the guy in the Oval cage. I never voted for Clinton. If he was doing this too, I'd be similarly alarmed.
Care to cite that source re: Clinton?
Scott, re: Clinton.
That was a general statement not directed at you in particular.
Citations:
http://www.nationalreview.com/york/york200512200946.asp
By attestation, the CRS memo I already posted.
I do not have access to them at the moment, but either in the 9-11 Commission report, the hearing notes, the research notes, or all of the above.
As I understand the facts, these activities occurred until at least 1994 and then resumed in 2001.
Scott, I would not claim to believe in a Unitary Executive. I would call my positions on the warrantless surveillance issue in specific a conclusion. Granted, I came to that conclusion based on what I do believe about the function of the Executive based on the Constitution, but that conclusion is not involate.
That being said, I have no idea where to start with how I arrived at my belief. The Federalist Papers? A close study of American history? The writing of Victor Davis Hanson? My belief has taken 34 years to form, so there's a lot to source it.
Scott, you are correct that there is no way to independently, emperically know that no Americans have been discovered as well as sized, detained, etc. under the warrantless program other than by the testimony publically given before Congress on the subject.
To clarify Hamdi, Padilla, and the Ft Dix folks, Hamdi was captured in Afghanistan working for Taliban making him unmistakably an enemy combatant, Padilla was captured in Chicago returning from Afghanistan, and the Ft Dix Six were turned in by a store clerk. I think we can safely eliminate warrantless surveillance in each of those cases.
Sources are over-rated. Can't people form their own opinions without said opinions being fed to them by someone with a lot of letters after the name (or not, as the case may be)? Shouldn't people be able to do this?
Seriously, I don't believe something just because someone wrote it down or said it on the tv/radio/internet. There is an element of personal responsibility to take the information, digest it, and work it into your own worldview. Regurgitation isn't an opinion.
Sources are overrated?
Denny made a statement of what he was alleging to be fact but had - to that point - offered no evidence. (Which he has now, thank you.) If you claim facts, you damn well better be able to back them up or I'm going to demand a source. If you can't provide proof or someone who can provide me with proof, then it's not a fact, it is an allegation. I'm sorry for resorting to semantics, but it really is as simple as that.
As for the request to provide some reading as to the underpinnings of Denny's belief system... I thought you wanted us to be more civil? How is wishing to understand where someone is coming from lacking in civility?
I now have Executive Order 12333 from the Reagan Library open in another screen and I will save a copy to read later.
At the moment, I need to get into town and pick up the bookshelves I ordered. I'll be back later tonight.
Oh, and Denny? I find it no less disturbing now that I know Clinton said it. Moreso, inasmuch as I now have no doubt Hillary would continue shredding the constitution should she get into office.
Scott, I find your conclusion about the Clintons reassuring simply because it is consistent.
I wonder if any of the candidates have come out with something subsantive on not using warrantless surveillance. I know McCain said he would continue it, and I have to assume Clinton will, but what about Obama? I could not find anything policy-wise.
I found this:
"Obama criticized lack of information provided to Congress about the program and voted "No" on Hayden's confirmation. He voted "No" on S. 1927. Like Dodd, he also co-sponsored the SAFE Act of 2005 and he followed Dodd's lead and vowed to oppose any bill that would grant telecoms immunity for their role in warrantess surveillance. In response to a question put to all candidates that asked, "Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea? ," Obama responded, "Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional." Obama voted "aye" to strip the immunity provisions from S.2248, but did not vote on S.2248."
Here:
http://www.pogowasright.org/staticpages/index.php?page=20070722123330759
David, interesting about the Obama quotes.
Personally, I'd find it more convincing if it was part of his platform on his campaign site, but he does seem to have a record.
Of course, the other side of the coin is how he proposes to fix the problems that led to warrantless surveillance to begin with. As president, he'd be up against at least 27 years of executive reasoning to the contrary.
BTW, Denny, I went back and reread the CRS memo and can't find anything the implicates a president between Ford and GW Bush. I didn't see mention of GHW Bush, Clinton or their administrations.
Which is odd, especially in light of the National Review editorial and EO 12333. At the very least you'd think they'd mention Reagan... hrm.
Scott, the specific implication was the quote I used as the historical reference in the original post that every president between Roosevelt and GW Bush has asserted and used such authority. I believe there are also references in the footnotes to executive orders and cases that cover several of the other administration.
I thought Carter was specifically implicated, but I may be thinking of something I read elsewhere.
Also, this memo is apparently part of a larger body of work that was not cited on my original source. If I find the rest of that body, I will pass the link along.
Scott, I agree that the EFF provides a lot of case law, but the CRS document was apparently part of several documents generated for Congress whose contents I cannot find.
My only issue with case law, wherever it is found, is that its conclusions sometimes lack historical context. What I was looking for and continue to search out are the specific activities of specific administrations on this topic as a historical backdrop for the current administration's decisions.
Unfortunately, I suspect that quite bit of this information may not be available in the form I am looking for due to its sensitivity. That's what I think has been lacking from the national debate is a historical contex that helps clarify what has actually happened.
Yeah, I get that. Like you can't really talk about the passage of FISA independent of the Nixon/Ford/Carter years and the events that led up to it. Which I rather admired about that CRS report, thick though it was with the lingua franca of the Beltway it covered the events surrounding the debate and passage of FISA in the context in which it happened.
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