Would it be so wrong to say that before we can consider ourselves at war sufficiently for the Executive to have any emergency powers at all, the goddamned Congress has to declare the blasted war?
Didn't Congress abdicate it's war-declaring function around the middle of the last century? It's always struck me as odd that that could have transpired without a Constitutional amendment; but it seems to be pretty well a done deal at this point.
Katherine at OW has a recent post on the subject that's worth reading, if only for perspective.
She is wonderful, isn't she. I'd like to see that post on posters slapped up on every lamppost in the city.
Its not OK,Osner.
The war we're in has no possible end, since a tactic can't surrender. That's the way Bush-Cheney have explained it, too: a ten or twenty year war against an undefined enemy.
I'm not a big constitutionalist, but the Bush people plan to nullify every single one of the checks and balances we learned about in ninth grade (as well as whatever international law there is). They think of themselves as hard-charging CEOs and they don't care about that petty legalistic red tape.
The only possible libertarian, moderate, liberal, and radical positions on this are to oppose Bush's power grab. And most conservatives should oppose it too.
Has anyone heard a rationale for why a judge's signature/warrant can't be obtained? Besides the knee-jerk 'our freedom!' response, of course.
I'm curious. I didn't think it was all that hard to obtain a warrant for a wiretap in the first place, and it certainly can't be efficient to tap everyone's phoneline in the hopes of catching a terrorist; so like, assuming that it isn't an instantaneous process to tap someone's phone, why can't there be some sort of quick judicial review? Are these the sorts of things that normally take weeks?
Under FISA, you can tap the damn phone without a warrant so long as you get a warrant within 72 hours afterward. So, no, it doesn't take weeks.
The standard conspiracy theory is that there's some huge NSA program that monitors all electronic communications automatically and scans it for key words or phrases that indicate a threat. Since it's a blanket program, individual warrants don't really work. Kind of like making everyone walk through a metal detector; individual permission isn't workable. Not that this justifies it.
So... if it's a magical technological innovation that makes scanning things easy (most universities have such sifters for internal e-mail already), um, isn't it possible to amend the current laws to make them say something like 'Sifting is okay, but specific searching still needs a warrant'?
If the law doesn't work any more, then we can make a new law, right? God, it's like they've all watched episodes of 24 and forgot how the government works.
I'm really not happy with 'Oh, don't worry, my fellow Americans, we'd never look at domestic calls, just international ones.'
Second Lizardbreath. We are not at war. We have not declared as such. The restrictions on habeas and such do not go away until they do.
Unlike Emerson, I am a big constitutionalist (is that only a conservative position now, and why?) and I am totally opposed. I've been opposed since 9/12. It's not that I should oppose it, even though I should, it's that I don't support it, didn't support it then, don't support now, and I don't see why I fucking should. The level of power-aggrandizing that has occurred under Bush (with the assent, disgustingly, of Democrats and Republicans) exceeds that of the Civil War, which implies that it is appropriate for a post-nuclear exchange enviroment, not a post-terrorist attack enviroment.
Not that I am surprised at any of this. (My guess is that they're monitoring keydroppers inside Windows.) The Republic is essentially in the process of self-terminating. Bush is just the tool. And a tool.
ash
['Fuck Caesar!']
The declaration of war point is correct, of course, but I don't know that we should rely on it overmuch: there's a pretty good chance that Congress would still be willing to declare one, if that's what it took, and they certainly would have done it a couple of years ago. Like Labs says, the question is what we mean by "war" and what we think it ought to "authorize." That's another way of saying that calling it a "war" doesn't mean anything, and we still have to decide what's acceptable.
It occurs to me that that one of the big differences that determines how one reacts to these wiretappings is how much one is prepared to think that we are on, or have already slidden down, a slipper slope. If you think that, then Katherine's point makes a lot of sense. If you don't, then she's getting a little hysterical, and weak on terror.
Do you think Bush and his people are really prepared to use these tactics against ordinary American citizens? It can be argued that they haven't so far. I think many people, even those who don't think highly of Bush, believe that he and his people are self-policing enough not to do such a thing. These NSA wiretaps could potential destroy that idea, or enforce it.
We don't want to be spied upon, but the very presence of these wiretaps in themselves will not, I think, convince many people that they are likely to be spied upon. OTOH, a lot of people are going to see this as evidence that Bush takes the war more seriously than Democrats.
Of course, Democrats are skeptical, with good reason, that Bush has ever really taken this war seriously. During these past years of incompetence, why should we believe that the Bush people have been using these secret wiretaps wisely and judiciously? It would seem out of character. And until we find out the target of those wiretaps, that's probably what I, were I a pundit, would harp upon.
Under FISA, you can tap the damn phone without a warrant so long as you get a warrant within 72 hours afterward.
15 days during wartime, I read.
It can be argued that they haven't so far.
It can be argued, but not based on any information, since we know fuck-all about what they've done with this information. We do know that a Rehnquist-appointed FISA judge just resigned in protest, so I'd say something untoward is going on.
Apo, I'm sympathetic to the idea that these FSA wiretaps are going to turn out to be a big breach of public trust. But what I meant was that in all their jailing and detaining of people, including American and Canadians, none of them, I don't think, have been everyday Joes. I'm not defending the practice, but simply trying to get at how others defend the practice, and, more importantly, why they do not think that it endangers them.
The declaration of war point is correct, of course, but I don't know that we should rely on it overmuch: there's a pretty good chance that Congress would still be willing to declare one, if that's what it took, and they certainly would have done it a couple of years ago.
He probably could have gotten a declaration of war on Iraq, but on Terror? The thing about declaring war is that the justification for the state of emergency would have had to be stated with some definiteness, which would have made it more obvious when some particular bizarre action fell outside a reasonable response to that justification.
But what I meant was that in all their jailing and detaining of people, including American and Canadians, none of them, I don't think, have been everyday Joes.
Well, there are certainly everyday Joes locked up at Gitmo. Read Katherine's links on the Uighurs who have been determined by military tribunals not to be enemy combatants, but are still locked up at Gitmo and shackled to the floor when they get to see their lawyers, because we haven't gotten around to figuring out where to release them yet.
LB, you're missing a critical part of the definition of "Everyday Joe" -- I think we can safely say no Uighur is an EJ.
Like Labs says, the question is what we mean by "war" and what we think it ought to "authorize."
The difficulty is that we don't really know what's been authorized. Secret wiretaps are common, and don't even require war. The issue is the avoidance of the court. We can argue about whether such is formally right or wrong, but since the action has little content - we don't know who was wiretapped - we're stuck with abstract political debate, which carried, let's face it, little force.
As it happens, I think that the action was formally wrong. I do not see how the requirement of a warrant is any burden on a President, even during war, in obtaining secret wiretaps, and I always think having checks is preferable to not having checks. An interesting question: Are there hypothetical cases in which the FISA court may have turned down the application for a warrant but you would support the Presiden't action anyway? This requires first knowing what such hypothetical cases are, which is beyond me. A secondary question: if the NSA sets up a wiretap on the President's say, and later requests a warrant, but is turned down, what happens?
Re: 19, 22
That is one aspect of the justification that I find particularly troubling--the whole idea that people who for whatever reason don't fit the profile of an "Everyday Joe" are somehow less entitled to due process rights, or even basic human rights, than people who do fit the profile. Rights for the select few are not rights, they are privileges. And that is not what we are about.
Ditto to 24, and note that the Pentagon was keeping tabs on Quaker groups, people who protested "Don't Ask, Don't Tell," and other anti-war protestors. So you've got the will to spy on domestic political opponents, and a program that lets you do it without any oversight outside of the Administration. That's the middle of the slippery slope, even if we don't yet know whether they got to the bottom.
(To be fair to William Arkin, who is criticized in the linked post, SCMT pointed out at Ezra's that he's basically making the argument that My Alter Ego made.)
24, Sure, but, were I to play Devil's Advocate, I'd reply that it's not a perfect world, and that war, or whatever struggle we're in, cannot be perfect. Some imperfection, such as detaining a few innocent people, is acceptable because it has to be acceptable; actions that resulted in jailing no innocent people would result in letting too many terrorists go, and would likely result in greater harm. So the choice we're faced with is jailing a few innocents, or leaving ourselves open to attack.
"(To be fair to William Arkin, who is criticized in the linked post, SCMT pointed out at Ezra's that he's basically making the argument that My Alter Ego made.)"
To be fair to William Arkin, as I pointed out on that thread, this was one of the handful (or less) of cases where Hilzoy has ever blogged something that was outright wrong.
So the choice we're faced with is jailing a few innocents, or leaving ourselves open to attack.
Well, sure. Lenin would been right there with you.
Arkin wrote, "The government is not just repeating the targeting of political opponents a la J. Edgar Hoover or Richard Nixon." He didn't say "The NSA is not just..." The NSA was the pretext of the statement, but if he meant "The NSA is not just repeating..." he should have said that. You said that Hilzoy conflated NSA spying with FBI and DoD spying, but actually Arkin was the one who didn't do enough to draw the distinction. All this is a tiny semantic dispute since we're all in agreement (if I read this correctly) that this shows that the government does have the will to spy on political opponents, so that it is extraordinarily dangerous to give any branch of it unchecked surveillance powers.
Also, who knows if the NSA has targeted political opponents, or journalists, or something? Not me, not you, and not Arkin.
I am a civil libertarian, but not a big constitutionalist in general. I have different reasons. I generally believe in separation of powers and checks and balances too, but I'm not consistent on that.
I'm not completely sure why it was this particular issue that blew up in Bush's face, and it doesn't change my opinion of him at all. Almost every single thing he's done as president relevant to the issues in question tells us that he wants and expects a completely free hand in every way, with no constraints, safeguards or limitations of any kind. IE, he wants to be the imperial leader of an imperial nation.
The threat of terrorism is vastly overestimated too. The Stalin and Hitler comparisons are ridiculous. But that's another issue for later.
Thus for me, talking about the details of this particular project is somewhat unnecessary. I'm glad people are starting to notice, though it may be too late.
There's no evidence that Bush is showing restraint or limiting his incursions to the minimum necessary. To a certain extent he is simply trying to expand his powers in principle, without necessarily using them immediately, but that's exactly the kind of thing you have to watch out for. "He hasn't misused that power yet" is not an argument.
For exemple, if his actions on Padilla are not overturned, any president will be able to hold anyone indefinitely incommunicado at will, anytime in the future. It's not the one guy.
I console myself with the idea that, as long as the Republicans can be voted out of power, we're not too far gone. But I don't know if this is still so.
Ditto Emerson on the precedent setting.
"The NSA was the pretext of the statement, but if he meant "The NSA is not just repeating..." he should have said that. "
Okay, well, if you think there was the least bit of ambiguity as to what Arkin said and was talking about, we'll have to agree to disagree.
"Also, who knows if the NSA has targeted political opponents, or journalists, or something? Not me, not you, and not Arkin."
Has absolutely nothing to do with what I said. I agree completely, but what it has to do with conflating the FBI and NSA, I have no idea whatever.
"...actually Arkin was the one who didn't do enough to draw the distinction."
I mean, he's writing solely about the Amazing NSA Mystery Wholesale Wholist Vacuum Tool. Solely. Bringing in a whole different news story about the FBI events (entirely important as that is, but so is the news of the Chinese economy, or the NYC transit strike) to say he didn't "draw the distinction" is, well, why on earth would he? Why not also say he didn't make clear he wasn't talking about CIFA? In fact, why didn't you, Matt, draw the distinction to make clear you weren't talking about CIFA, too? Or Army Intelligence? Or SOCOM?
Well, you didn't, because those have nothing to do with what Arkin said, and nothing to do with anything said here, yet. Strangely, though, you still didn't "draw the distinction." Shame on you. Who knows how many confused people you've left out there with your obvious ambiguity?
Here's the Arkin link, for those reading along at home. This is the sentence I quoted:
The government is not just repeating the targeting of political opponents a la J. Edgar Hoover or Richard Nixon.
If you don't think that this has the potential to leave the impression that the government is not spying on political opponents, then we'll have to agree to disagree, because you're wrong. I acknowledged that a careful reading of Arkin's post might tell you that this post was restricted to the NSA, but his word choice was extremely careless. IF HE MEANT THE NSA HE SHOULD HAVE SAID "THE NSA," NOT "THE GOVERNMENT." Because, as I pointed out and you agreed, the government is spying on political opponents, and we have no reason to believe that the NSA is not.
You claim this point has nothing to do with what you said. It depends on what you're trying to accomplish. Hilzoy and I were talking about the considerable evidence that the government is spying on political opponents. If that point is irrelevant to what you said, it seems that what you're trying to do is not address our points but to microparse Hilzoy's statement so that she comes out wrong about something. This is positively Kausian. Find something better to do with your time.
(If you'd said "It's important to keep in mind that it was the FBI and DoD spying on the Quakers, not the NSA, that would be fine, but breast-beating about how Hilzoy is "just plain wrong" is needlessly hostile and obscures the point you're trying to make.)
Non-selective quote, full context:
9/11 Gone Wild
Yesterday's New York Times editorial on National Security Agency spying in the United States refers to "your mail and your e-mail" and "your telephone conversations" being monitored.
The connotation of course is that the "you" is some New York Times reading Cappuccino drinking upper middle class Manhattan intellectual, that thousands if not tens of thousands of similar Americans are having their phones tapped and e-mails intercepted.
Come on. The government is not just repeating the targeting of political opponents a la J. Edgar Hoover or Richard Nixon. It is not picking out a Seymour Hersh or a Cindy Sheehan to find their links to foreign influences nor seeking to ruin their lives by developing incriminating evidence on them. Maybe it's just me who thinks there's no ambiguity whatsoever that he was addressing the issue of "National Security Agency spying in the United States." Maybe it does require a "careful reading." I have no trouble believing that. I'm an outlier in all sorts of beliefs and behaviors and reactions. If enough people tell me Arkin was unclear, I will believe them.
I''m also quite well aware I have a different standard for reading and "close reading" than most people.
Breaking out into all caps probably won't do it, though. But I'm sorry I wound you up so, Matt.
"Find something better to do with your time."
That may have been, perhaps, a tad uncalled for.
Crap. How am I supposed to remember that this blog does blockquote differently than most? Preview. But I'm lazy. Another try: Non-selective quote, full context:
9/11 Gone Wild
Yesterday's New York Times editorial on National Security Agency spying in the United States refers to "your mail and your e-mail" and "your telephone conversations" being monitored.
The connotation of course is that the "you" is some New York Times reading Cappuccino drinking upper middle class Manhattan intellectual, that thousands if not tens of thousands of similar Americans are having their phones tapped and e-mails intercepted.
Come on. The government is not just repeating the targeting of political opponents a la J. Edgar Hoover or Richard Nixon. It is not picking out a Seymour Hersh or a Cindy Sheehan to find their links to foreign influences nor seeking to ruin their lives by developing incriminating evidence on them.Etc.Maybe it's just me who thinks there's no ambiguity whatsoever that he was addressing the issue of "National Security Agency spying in the United States." Maybe it does require a "careful reading." I have no trouble believing that. I'm an outlier in all sorts of beliefs and behaviors and reactions. If enough people tell me Arkin was unclear, I will believe them.
I''m also quite well aware I have a different standard for reading and "close reading" than most people.
Breaking out into all caps probably won't do it, though. But I'm sorry I wound you up so, Matt.
"Find something better to do with your time."
That may have been, perhaps, a tad uncalled for.
"it seems that what you're trying to do is not address our points but to microparse Hilzoy's statement so that she comes out wrong about something."
In all the time Hilzoy has posted (it's been, what, a year or more?; I have the world's worst sense of time passage), and I've posted how many hundreds and hundreds and hundreds of comments -- possibly thousands -- on ObWings, how many times have I ever said she was wrong? Twice? Thrice? Maybe four times? (I doubt the last, but don't exclude it.) Do you imagine I suddenly conjured up a passion to find her wrong, but, strangely, only on this single point? Why?
And, hey, why don't we take this back to ObWings, rather than bore folks here about about it? I'm sure if they're fascinated, they can read it there.