Third Party & Independents Archives

Bush vs Freedom

Congress is in recess this week, giving the Bush Administration ample opportunity to make deals in an effort to retroactively legitimize Bush’s secret espionage tactics. From what we hear from Capitol Hill, do we have reason to hope that justice will be served? or, at the very least, will freedom be protected?

Facing Pressure, White House Seeks Approval for Spying

Now, to avoid the usual red vs. blue quibbles, let me begin with a quote:

"I do believe we can provide oversight in a meaningful way without compromising the program, and I am adamant that the courts have some role when it comes to warrants. If you're going to follow an American citizen around for an extended period of time believing they're collaborating with the enemy, at some point in time, you need to get some judicial review, because mistakes can be made." -- Sen. Lindsey Graham (R-NC)

Sen. Graham voices a concern very similar to my own. However, my own concerns stretch a bit farther, beyond the realms of human error into corruption. We should be very familiar with the corrupt ways by which people seek to gain and maintain power. We see it in every election season; and in between, we are almost constantly bombarded with news of new scandal and corruption. Without proper oversight, the temptation to get the dirt on those who disagree with your policies would be too much for our current breed of politicians to overcome. We've already seen the current administration authorize (without oversight) the surveillance of anti-war groups in Baltimore and at UC-Santa Cruz and UC-Berkeley. Who knows how many other non-terrorist groups were spied upon and will remain classified?

However, not all quotes give me such assurances as Sen. Graham:

"Unfortunately, we're having this discussion. It's too bad, because guess who listens to the discussion: the enemy. The enemy is adjusting. But I'm going to tell you something. I'm doing the right thing. Washington is a town that says, you didn't connect the dots, and then when you do connect the dots, they say you're wrong." --President G.W. Bush

First of all, if terrorists are smart enough to plan simultaneous airplane hijackings and skilled enough to fly them into the most heavily defended building in the most highly guarded city in the US (which I don't buy into, but that's another article altogether. background) then they certainly are already aware of the possibility of US espionage and they take significant precaution. Not to mention, the FISA court already meets in extreme secrecy, and one can hardly suspect that terrorists have infiltrated the court to know who is being spied upon.

Second, merely saying you're doing the right thing does not make it right.

Third, I have some dots for you to connect. Dot 1: In 1978, FISA was created because warrantless surveillance was found to be unconstitutional. Dot 2: There have been no judicial decisions since 1978 finding that warrantless surveillance is constitutional. Dot 3: Bush, on several occasions, gave the distinct impression, if not outright saying that he was not spying on US citizens without authorization. Dot 4: According to declassified NSA documents, the NSA was directed by presidential directive to spy on an anti-war group in Baltimore, and the ACLU is currently fighting to declassify documentation concerning NSA spying on anti-war demonstration groups in San Francisco. Dot 5: Bush is completely unapologetic about breaking the law and breaking public trust concerning this issue.

Connect the dots, and to me it spells impeachment; but I'd be happy if Congress would just leave the FISA court as is, and authorize an independent investigation into who was being spied upon without oversight.

If nothing else, the following excerpt should show that the Administration has something to hide:

According to lawmakers involved in the discussions, a number of senior officials, including Harriet E. Miers, the White House counsel, and Andrew H. Card Jr., the chief of staff, began contacting members of the Senate to determine what it would take to derail the investigation.

It doesn't sound as though the administration is trying to reach any compromise; rather, it seems like they want to do whatever it will take to stop an investigation. Their urgency in avoiding investigation is the very reason we (as constituents) ought to be demanding a full, independent investigation into who was being spied upon and why. Additionally, if there were terrorists who were being spied upon without oversight, we must know why they were not processed through the system which was already in place.

Once again, I urge you all to contact your senators and ask them to reject any circumvention of the FISA court. Then, additionally, for those on the Senate Intelligence Committee, please urge them to initiate a full inquiry.

Posted by Andrew Parker at February 20, 2006 11:34 AM
Comments
Comment #127822

Andrew

We disagree about the need and threat. Your arguments are valid, just a different point of view, so I will not comment on them in general. But there is one point I would like to contest.

“[Terrorists] certainly are already aware of the possibility of US espionage and they take significant precaution.”

They are not dumb. We are in a contest with them. Everyone is trying to out smart everyone else. We deploy measures; they use countermeasures; we counter the counter, etc.

It doesn’t follow, however, that we can just unilaterally disarm ourselves, by giving away our methods. It is true that we could dispense with any particular method, but when some Americans work hard to reveal to the terrorists various methods we use, it is not a good thing. Each option foreclosed makes life easier for the bad guys.

Posted by: Jack at February 20, 2006 1:45 PM
Comment #127827

Another terrific post, Andrew. I agree completely.

Posted by: Adrienne at February 20, 2006 1:54 PM
Comment #127838

Jack-

Measures and countermeasures are fine. My argument is that there are particular countermeasures which should never be allowed because of the potential for abuse.

If we in fact have terrorists capable of conducting large-scale attacks against the U.S. on our soil, they will be willing to use whatever means they can find to strike us. If we resort to a ‘by all means necessary’ mindset in an attempt to protect ourselves, how then do we (the ‘good guys’) differ from them (the ‘bad guys’)? Isn’t that mindset exactly why we have a problem with them? We grant them the right to hate America and whatever else they like, as long as they don’t resort to such extreme actions. Our government has now apparently succumbed to the pressure to respond in kind. The Bush Administration is not so different than a terrorist group right now - secrecy, deception, disregard for law, threats, you name it.

We don’t like some of the body of representatives who were elected by Iraqis. We don’t like some of the body of representatives who were elected by Palestinians. We don’t like who has been elected in Bolivia. We don’t like the freely elected leader of Columbia either. We have taken an agressive diplomatic stance against all of these nations because of the decisions made by their populace(s?). It doesn’t take much looking around to see how the US is throwing its weight around in opposition to people putting freedom into action.

Summary:
I’m not asking for any disclosure of methods here, I’m only stating that espionage, because of its invasion of privacy, needs to be thoroughly overseen by a group of individuals whom it would be difficult to subject to one person/party/administration’s will.

Posted by: AParker at February 20, 2006 2:17 PM
Comment #127995

I don’t think Republicans have an intelligent argument for why there shouldn’t be oversight, they just like the idea of a president with unlimited powers, that is, a king, which is exactly what our president is not supposed to be. A president trying to have unlimited power to search and seize citizen’s domains would most certainly be a “high crime and misdemeanor” in the classic sense.

The Republicans who claim they don’t care about oversight, because they have nothing to hide need to understand that our right to privacy stems from our right not to have our homes searched unlawfully. If Republicans want to live in a country where policemen can walk into their homes anytime they want and do anything they want, then Republicans have plenty of other countries they can go to, but that’s not how it works in this country.

Posted by: Max at February 20, 2006 8:55 PM
Comment #128005

Mr. Parker, thank you for a great article. I couldn’t put it better and I won’t try.

Posted by: Amani at February 20, 2006 9:43 PM
Comment #128041

Andrew, your arguments fall apart when we start applying them to what’s actually going on.

Warrantless surveillance is unconstitutional when it is used to build a court case. No one is claiming otherwise—certainly not the Bush administration.

There is no guarantee in the Constitution for American citizens to correspond with or have telephone conversations with overseas terrorists. There is, however, even under Bush’s eavesdropping provision, still a right for them to do so and not have those conversations used against them in trial without a FISA or other court warrant.

Any information gathered through such means would not be admissable in a criminal trial—hence the creation of the FISA courts.

The FISA courts are there to help build court cases. FISA, and our entire judicial system, is not there to sign off on every measure taken by the US intelligence services or military during a time of war.

A Marine in Fallujah, for example, needs niether an act of Congress or a judge’s warrant to pull the trigger. Niether does an intelligence agent require an act of Congress or a judge’s warrant to listen in to a potential terrorist or terrorist associate.

Warrantless eavesdropping such as this could never be used to “get the dirt on those who disagree with your policies.”

This has nothing to do with the courts: it has everything to do with the powers explicitly granted to the Exectutive, not only by the Consitution but by recent acts of Congress.

In any case, the courts OR Congress or both could still put an end to it. If they do not, if Congress even signs off on it (though, Consitutionally speaking that’s probably not even necessary) then that would be the judgement of duly elected public officials.

You wouldn’t (and don’t) have to like it. But it’s a good example of democracy at work. Democracy is not a process which ensures that everybody—not even you—gets your way.

Posted by: sanger at February 20, 2006 11:26 PM
Comment #128056

Andrew, brief but good op-ed on this topic in the LA Times today:
Advise and assent

Posted by: Adrienne at February 21, 2006 12:21 AM
Comment #128063

Andrew:

Thank you for the thoughts. I am in agreement with you—the temptation to use these tactics against legitimate dissent is greater than this partisan Administration can walk away from, I fear. I believe a truly bi-partisan inquiry into who was surveilled and why is in order.

TC

Posted by: Tim Crow at February 21, 2006 12:44 AM
Comment #128065
Warrantless eavesdropping such as this could never be used to “get the dirt on those who disagree with your policies.”

You just keep believing that. When Democrats return to power, you keep believing that.

Posted by: womanmarine at February 21, 2006 12:49 AM
Comment #128071
WASHINGTON (Reuters) - U.S. intelligence agencies have been secretly removing from public access at the National Archives thousands of historical documents that were available for years, The New York Times reported on Monday.

The restoration of classified status to more than 55,000 previously declassified pages began in 1999, when the
CIA and five other agencies objected to what they saw as a hasty release of sensitive information after a 1995 declassification order signed by President
Bill Clinton, the Times said on its Web site.

The secret program accelerated after the Bush administration took office and especially after the September 11 attacks, according to archives records, the paper said.

Here

Posted by: womanmarine at February 21, 2006 1:04 AM
Comment #128079

“Naturally, the common people don’t want war; neither in Russia, nor in England, nor in America, nor for that matter in Germany. That is understood. But after all, it is the leaders of the country who determine the policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship.

“Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.” — Hermann Göring, April 18, 1946

Posted by: Aldous at February 21, 2006 1:51 AM
Comment #128121

sanger, that is not how the FISA law reads. Your opining on FISA serving only the purpose of building a case in a court of law, is simply unfactual. The law as written is a check and balance on the executive branch power by a co-equal branch of government, the Congress. It prohibits warrantless searches of Americans, PERIOD!!! Nowhere does the FISA law stipulate that warrantless searches are permitted by the Executive provided they don’t intend to go to court with what they find.

Your comment as compared to the facts in this case is meaningless and without a shred of factual evidence to support it.

Posted by: David R. Remer at February 21, 2006 6:48 AM
Comment #128122

Quite right, Andrew. I vow to contact my Republican congresspersons today and the Senators on the Committee. The Republican House is too corrupt by party politics to call for impeachment, so it is up to the people to bring the pressure to bear both now, and in the November elections.

Posted by: David R. Remer at February 21, 2006 6:55 AM
Comment #128167

sanger-

The FISA courts are there to help build court cases.

This quote shows the basis for your complete misunderstanding. FISA is a court which was created to hear classified arguments for spying on American citizens.

David-

Thanks for acting, it will take our voices loud and swift to make a difference while the Senate Intelligence Committee has allowed for negotiation.

Adrienne-

Thanks for the link to the article. When I first started posting here, I never would have guessed we’d agree on so much.

Posted by: AParker at February 21, 2006 10:13 AM
Comment #128186
that is not how the FISA law reads. Your opining on FISA serving only the purpose of building a case in a court of law, is simply unfactual. The law as written is a check and balance on the executive branch power by a co-equal branch of government, the Congress. It prohibits warrantless searches of Americans, PERIOD!!

Wrong, wrong, wrong and wrong. David, you are comparing apples and oranges.

The establishment of the FISA courts do not create rights that are not in the Consitution. The FISA court does not suddenly replaced the Fourth Amendment—if it attempts to, then the FISA courts are themselves unconstitutional and won’t stand up for a second to review by the Supreme Court.

You may not know this, but under the Fourth Amendment, the standard for issuing a warrant (not always required for a search) is probable cause.

The standard for warrantless searches is reasonableness. If you are frisked at the airport and if your bags are looked into, is a warrant required? No. And that’s because the search is reasonable, just as it is reasonable to listen into the conversations of Americans who talk to suspected terrorists overseas.

Congress can not take away powers spelled out for the executive in the Consitution. That is not “checks and balances.” That is an unconsitutional power grab.

You’re right that the FISA statutes don’t provide for the eavesdropping program. But neither do they provide for or describe how the administration should conduct any part of a war. That’s because that is NOT what FISA is for. FISA is for building cases within the poroper limits of the courts. It is not suddenly the final authority—the rulebook if you will—for how war must be conducted.

Posted by: sanger at February 21, 2006 11:25 AM
Comment #128268

Andrew:
“Adrienne-
Thanks for the link to the article. When I first started posting here, I never would have guessed we’d agree on so much.”

:^) I’m guessing we must have argued about something like abortion, or gay civil liberties — you know those hotbutton wedge issues. Such individual and personally held views being injected into political discussions always seem to throw a wrench in the works.

Btw, another good article

Posted by: Adrienne at February 21, 2006 4:35 PM
Comment #128270

Sanger,
I would agree with you if NSA was exclusive to the Military only. However, the nature of the Beast forbids that to happen. Therefore, a complee system with a whistle blower protection is needed so that “Black Book Intell” can be overseen by Congress. Like FEMA, FISA needs to be redefined so that it can hold both edges of The Sword. Thus, limiting the field of Darkness even smaller.

Posted by: Henry Schlatman at February 21, 2006 4:41 PM
Comment #128271

Whoops, I must have deleted my link there at the end of my post somehow.

Another good article: White House Working to Avoid Wiretap Probe
But Some Republicans Say Bush Must Be More Open About Eavesdropping Program


Posted by: Adrienne at February 21, 2006 4:45 PM
Comment #128283

Thanks

Thanks for the second article as well. After reading it, all I have to say is thank goodness for mindful Republicans like Hagel and Snowe.

Posted by: AParker at February 21, 2006 5:22 PM
Comment #128314

AP

Good post. I sent emails to both my Republican and Democratic senators.

Jack

I’ll try one more time. The argument you always make leaves wide open the power of the President to do just about anything he wants to do. I’ve asked you to delineat what he CAN’T do under your doctrine, and have come up empty handed so far. So, on the off chance you won’t blow me off one more time, I’ll ask again. Please tell me. If not limited by the rights outlined in the Constitution and Congress’s legal specifications of due process subsequently upheld by the courts, what are the limits of Presidential power in the current situation?

Posted by: mental wimp at February 21, 2006 6:49 PM
Comment #128349

Jack won’t answer you, wimp.

Truth is BushCo can assasinate US Citizens and not tell anyone. Its clearly stated they can do so by the justification used for illegal wiretapping.

Posted by: Aldous at February 21, 2006 8:49 PM
Comment #128427

If you are employed by the MSM (main stream media) please identify yourselves. Sanger, help me out with this.

Posted by: Weary Willie at February 22, 2006 2:19 AM
Comment #128434

Can I play devil’s advocate for a few? Just for kicks and giggles?

What if the world turned into our utopia tomorrow and everything suddenly went

everyone’s way?
What if Iraq did ask the U.S. to leave in 6 months and the U.S. actually started packing up

and leaving?

That would restore our credibility in the eyes of the world.

The world will once again be on our side because we do what they want. We

abandon our empirical goals. We grant atonomy to the region and leave it alone. We

totally remove ourselves from that area of the world. We are no longer the great satin.

I’m still the devil’s advocate, remember.

Now we’re all screwed up. We get off our lazy duffs and start making our own heat and

gas. We see the value of bovine flatulence, harness it’s power, and become the envy of the world! Again!
This will take the 25 years or so, someone said.

I am the devil’s advocate. Remember.

So now were at the point where our crap and our pet’s crap is heating our house. We peddle to work and back using really good batteries, and the middle east is fueding among itself and blowing itself into lala land.

What’s the down side?
We have to do the marshall plan all over again in the middle east.
Oh well. What the hell. Roll it over do it again do it again

Posted by: Weary Willie at February 22, 2006 3:56 AM
Comment #128557

Sanger:

There is no guarantee in the Constitution for American citizens to correspond with or have telephone conversations with overseas terrorists.

No explicit guarantee, no. But an implicit one. It’s known as the “Right of Association” and stems from the first amendment.

“Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, this Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees … . [F]undamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.” _ Chief Justice Warren Burger, Richmond Newspapers, Inc. v. Virginia (1980)
“Implicit in the term `national defense’ is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile.” _ Chief Justice Earl Warren, United States v. Robel (1967)

If we suspect that the communication involves the planning of a crime, fine… tap them, get a warrant, and charge them with the crime. But we can’t make association itself the crime, nor can we say that such an association itself satisfies the fourth amendment in the absence of a warrant.

Posted by: Jarandhel at February 22, 2006 1:59 PM
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