Sunday, February 05, 2006

Reading Room

King George

Special, I'll do as I please edition

Alby Gonzales will spin the administration line tomorrow on the NSA/warrants situation. More is coming through the week. The right will bring out the fear and guilt in full force this week. Who's patriotic enough to save us from the bad guys. We all want to get the people trying to destroy us. The question is have they done it legally? If not why not? Does the law need to be modified? Good time to study up.

Here is a story from the Washington Post. It is long but full of interesting details.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause

The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush's circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable......

The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be "right for one out of every two guys at least." Those who devised the surveillance plan, the official said, "knew they could never meet that standard -- that's why they didn't go through" the court that supervises the Foreign Intelligence Surveillance Act, or FISA

Michael J. Woods, who was chief of the FBI's national security law unit until 2002, said in an e-mail interview that even using the lesser standard of a "reasonable basis" requires evidence "that would lead a prudent, appropriately experienced person" to believe the American is a terrorist agent. If a factor returned "a large number of false positives, I would have to conclude that the factor is not a sufficiently reliable indicator and thus would carry less (or no) weight

But gee folks, If we don't break the law you are all gonna die!

Gonzales says there "is a serious misconception" about those provisions, and that the administration could not begin surveillance "without knowing that we meet FISA's normal requirements." He said a FISA application "involves a substantial process" that "consumes valuable resources and results in significant delay," when what is needed is "the maximum in speed and agility."

And of course politics will be big here.

So, to recap: right as the investigation is about to begin into the President's law-breaking, the Vice President goes on talk radio and accuses those responsible for disclosure of this law-breaking (including The New York Times) of causing ''enormous damage to our national security." The Director of the CIA then urges that those responsible for disclosing the President's illegal conduct be criminally prosecuted by the Justice Department (which is controlled by the President's slavishly loyal political appointees), and the Vice President says that, if anything, the CIA Director's comments were too restrained (should he have called for them to be summarily hung?).

This is thuggish behavior of the worst sort. Intimidating and threatening people who expose wrongdoing and illegality are the hallmarks of street gangs and military juntas. The idea that anything meaningful was disclosed when we learned that our Government is eavesdropping without judicial oversight and approval (rather than with it) has always been frivolous on its face. But the statement from Cheney that this disclosure caused ''enormous damage to our national security" is dishonest trash, transparently intended -- on the eve of the NSA hearings -- to stir up populist rage against anyone who blows the whistle on misconduct by the Administration and to intimidate other potential whistle-blowers with threats of criminal prosecution and treason accusations from the highest levels of our government.

Disturbingly, all of this has an effect, even -- perhaps especially -- on the Democrats in the Senate. They are not foaming at the mouth with anticipation for these hearings to be begin. They are approaching it with trepidation and concern about being depicted, yet again, as allies of Al Qaeda -- not just by the boundlessly dishonest and propagandizing Administration, but also by our "neutral" press which fails to convey the actual issues raised by this scandal, and which continues to propagate the false debate that this is about whether we should be eavesdropping on Al Qaeda.Maybe we'll be pleasantly surprised on Monday and will see some aggressive and meaningful questioning from Senators from both parties who understand that one of their most central constitutional duties is to serve as a check on excesses by the Executive Branch

The opening statement does not address criticism by Sen. Russ Feingold (D-Wis.), a possible Presidential candidate, that Gonzales misled senators during his confirmation hearing in January 2005. During the hearing, Feingold asked Gonzales whether, in his opinion, the President has "the authority acting as commander in chief to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country." Gonzales, whose answer addressed administration policy on torture, replied that the senator was discussing "a hypothetical situation."

To me this is a critically important issue. Unfortunately for those in support of the president we just can't have secret laws and unchecked power. The constitution prohibits it. We have a checks and balances government and the legislative makes the laws. These are undisputable facts. Should the laws be changed? It is the 21st century and things have changed. I am all for having tools to fight terrorism. I just don't want unchecked power. I will sacrifice safety to prohibit unchecked power. Many won't and that is where the fear fear fear comes in.

This decision will become "precedent" other presidents may invoke them on their own terms. And who can doubt that one case of immunity will bring about claims to another? This is not/should not, be a partisan issue. This is fundamentals of constitutionalism. For those who hate "activist" judges IE ones that make their own law as they go along(as I understand your terms), What about a president that makes them up as he goes along? Is that ok? I want to know now because I want to throw it in your face when you whine about Hillary when she exercises the same power. I would also like to know ahead of time to what extent the president can override and circumvent the law. Shouldn't we have a few benchmarks here?

If you feel this law breaking is OK you and I have a dramatically different view of Real America.


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