More on Illegal Wiretaps and Fake Libertarians

Two more excellent posts by Glenn Greenwald on the Bush’s Administration’s illegal searches. First, he finds Hugh Hewitt citing United States v. United States District Court (1972) on behalf of Bush’s position, although the case found that the Fourth Amendment requires judicial approval for domestic wiretapping. Indeed, the Court makes an argument against Bush and his defenders quite powerfully:

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. [cite omitted] But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

So, this case is clearly an argument against Bush and the conservertarians. The only way around it is to carry on the fiction that Al Qaeda is the agent of a foreign country–which runs into the obvious problem that it isn’t–and even with respect to those cases the opinion is merely noncommittal. So to the extent that this case has relevant content, it cuts against the position of the adminsitration (and Hewitt, although of course this is a distinction without a difference.)

Secondly, he points out that the administration itself isn’t claiming that FISA authorizes the wiretap:

For that reason, Condoleezza Rice went on Meet the Press yesterday (h/t Firedoglake) and did not even attempt to argue that the Administration complied with FISA. To the contrary, Rice said that FISA was now obsolete (even though it is still sort of the law) and, based on that view, justified the Administration’s violations of FISA. Rice claimed that this warrantless eavesdropping on America citizens was authorized not by FISA, but by so-called unspecified “additional authorities that [the President] has under the Constitution and under other statutes.

So the administration is a less hackish defender of itself than Jeff Goldstein, who continues to defend the government’s actions as being authorized under FISA, approvingly quoting an argument that admits that it’s going beyond a “literal” reading of the statute and tries to claim that Al Qaeda is the agent of a foreign power, despite the fact that 1)it’s clearly not–for what foreign country is Al Qaeda an agent?–and 2)it is impossible to understand why the statute would make the distinction between foreign powers and terrorist groups if it defined foreign powers that broadly. So, amazingly, in a post in which Goldstein is upset about the fact that I questioned his civil libertarian credentials, he continues to put forward a hyper-statist statutory interpretation so implausible that not even the administration itself is trying to sell it! He also addresses the Fourth Amendment argument with a long quote from Hewitt, while ignoring the fact that the case actually repudiates his position.

So needless to say, I stand by my characterization of Goldstein’s arguments. His claims to be strongly committed to civil liberties are simply not credible, given that the plain reading of the law would clearly hold Bush’s actions illegal under both the Fourth Amendment and FISA, and to hold otherwise requires gymnast-like contortions of the law made by such well-known dispassionate supporters of civil liberties as Hugh “Harriet Miers is a solid B+” Hewitt and Mark “Who are you gonna believe about the government’s torture reports, me or someone who’s read them?” Levin. He criticizes me for not considering a comment in one of the two long threads, but it’s clear that both of the posts in question place considerable weight on the administration’s claims of legality, which is why he can’t come up from anything from the posts themselves that contradicts my reading. And he continues to think that the Administration’s assertions of legality mean something. To be clear, I have no idea whether the administration is acting in “good faith.” They may have convinced themselves that their actions are constitutional; I can’t know, and I don’t care. What matters in a democracy is whether their public legal justifications are convincing. And they certainly aren’t.

And, again, it’s worth noting here that perhaps you can make an argument that the program is legal if you want to both give FISA an exceptionally implausible (indeed, considering the statute as a whole, nonsensical) reading and to give the Fourth Amendment an extremely narrow reading. But if–like Goldstein–you’re doing this, it becomes ludicrous to claim that you’re committed to civil liberties. We not dealing with something as ambiguous as, say, the cruel and unusual punishment clause here; in this case, the civil libertarian position is compelled by a straightforward textual reading of the relevant statute and constitutional provision, while Goldstein’s hyper-statist position requires leaps and bounds that even the defenders of the arguments admit go well beyond a literal reading. And these readings would obviously greatly expand the arbitrary power of the executive. So whatever you’ve subjectively convinced yourself, when you try to make these kinds of arguments and then claim that you’re a civil libertarian, you’re not going to be taken seriously. As Jim Henley noted about another alleged libertarian who can always find a way to justify even the most legally dubious state power when it’s George Bush’s power in question, Goldstein’s succession of posts here consists of “bog-standard Republican authoritarianism, Kaye Grogan but in well-turned prose.”

If people who advance such arguments on the basis of the laughably tendentious arguments of utterly in-the-tank Bush hacks like Hugh Hewitt don’t take me seriously, I wear it as a badge of honor. Or, to put it another way, Goldstein is advancing a conception of “civil libertarian” that can encompass Michelle “In Defense of Internment” Malkin, Richard Nixon, and John Yoo. The utility of such a definition I leave to the reader.

…Berube has much more:

People who support a clandestine program of warrantless domestic spying are not “conservatives” or “libertarians.” Neither are people who support the creation of a worldwide archipelago of secret torture sites. Neither are people who support the usurpation of the functions of government by the executive branch; who espouse the theory that the executive branch is the final arbiter of the legality of the actions of the executive branch; and who call for the investigation or prosecution of a free press that dares to report on the executive branch’s secret programs of domestic spying and outsourced torture

Those people, my friends, are called the radical right.

Heh-indeedy.

…as Sam notes, the White House has embraced Carl Schmitt’s Goldstein’s “we took an oath, so how can what we’re doing be illegal?” theory.

Tasteful

I’m a big fan of the newly controversial Ang Lee. Although I don’t think it’s terribly well-regarded, I think The Ice Storm is a great movie. (I actually think I underrated it here; having screened them again recently, I would rank it ahead of Short Cuts and maybe Fargo.) Crouching Tiger you know about–and getting me to tout a martial arts movie is like getting Michael Medved to praise Brokeback Mountain—and The Wedding Banquet is entertaining enough. I even found the civil war thing with Jewel tolerable. (I did avoid The Hulk, though.) Anyway, all of this was true before I opened my Times today and note that he was wearing the gear of the noblest franchise in professional sports:

So clearly, no matter how Brokeback turns out to be, he’s the world’s greatest living director…

(BTW, a question for my midwestern readers: the Flames’ new farm team is the Omaha Ak-Sar-Ben Knights. What’s the deal with the “Ak-Sar-Ben”? Is that a suburb of Omaha?)

A Wanker Every Sunday

Matt Bai.

The problem with bad analogies and meaningless catchphrases is that they can conceal the fact–apparently even from the author–that the underlying arguments are just utterly illogical on their face. To the extent that the workforce is becoming more insecure and workers have fewer benefits from their jobs–as the economy makes a transition from the General Motors model to the Wal-Mart model–obviously this makes having secure entitlements more, not less, necessary. To reject this isn’t to adapt Democratic principles for the new century; it’s simply to disagree with them. This is childishly obvious, which is why (as Josh notes) he doesn’t even try to explain the logic of his argument. It’s remarkable that the country’s most prestigious newspaper has a lead political reporter incapable of grasping the most self-evident political concepts.

And That Goes Double For Lieberman

Shakes notes the latest emerging talking point, which will be to say that the Democrats approved of Bush’s illegal searches, so nobody can complain. Like Shakes, I’m pretty dubious about the candor with which the Democratic caucus was briefed. And nor do I think that it would have mattered if they had expressed reservations. The policy was not not a collaboration between the legislative and executive branch’s; it’s Bush’s responsibility, and Bush who is accountable for it.

But having said this, let’s be clear about one thing. Would I be shocked to know that some Dems knew about this and didn’t have any major problem with? I wouldn’t. The Dems’ record in standing up for civil liberties is less than stellar. But here’s the thing: it doesn’t matter. The searches are illegal, full stop. They don’t become any more legal if Jay Rockefeller and Joe Lieberman knew about them and thought they were OK. If any Dems didn’t have a problem with it, then shame on them, but it’s not an argument in favor of the legality of Bush’s actions.

In related news, Russ Feingold’s presidential bid is looking better and better to me all the time.

"Just A Goddamned Piece of Paper"

Billmon on why the “Trust him! He’s the President!” approach to evaluating the constitutionality of government actions now favored by conservertarians may be suboptimal.

The Schmittian Libertarians

It is, of course, not surprising to see the bullshit-libertarian blogosphere taking a dive for Bush’s illegal searches (although some principled conservatives and actual libertarians are clear about what’s going on.) The ultimate example has to be Jeff Goldstein, who argues that the warrantless searches must not have violated the law because…Condi Rice and George Bush said so. Well, I’m convinced! (This is a unique theory of legal interpretation: if Republican political officials say that their actions are constitutional, the inquiry is over.) Particularly remarkable is his outrage over the fact that the President’s warrantless searches continue to be criticized “even as the President stands firm and defends the practice.” Yes, what is this country coming to where people will disagree with the President even when he asserts that he’s right? You’d think we lived in a liberal democracy or something. (The word “lickspittle” seems grossly inadequate.) But, anyway, the fact that alleged libertarians who are enthusiastic supporters of Sam Alito despite their (less than nominal) support of abortion rights and civil liberties are rolling over again isn’t exactly news, but a couple points should be emphasized.

The first is that the legal question here is unambiguous. Several conservative hacks have tried to use a distortion of FISA to argue otherwise, but the statute clearly forbids what Bush has openly admitted to having done. And then, of course, there’s the Fourth Amendment, which is also clearly violated by these warrantless searches. King of the fake libertarians Glenn Reynolds tries to dance around the latter question, with distinctly unpersuasive results:

The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveillance is, both under statutes and under constitutional law. And that’s doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence — meaning that, as with the exclusionary rule in general, the remedy is worthless if you’re never charged with anything, say because you’re innocent.)

Indeed, our Fourth Amendment protections are less than they should be (partly because people like the Reynolds-approved Alito keep getting appointed to the federal courts by the Republican Presidents and Senators he supports), but they certainly aren’t so limited as to permit a systematic policy of warrantless searches ordered by the executive, and Reynolds carefully avoids saying that they are. Instead, he goes into a whole bunch of diversionary rambling about the exclusionary rule, all of which is beside the point. Again, yes, as everyone knows one problem with the exclusionary rule is that it provides a much more effective remedy to the guilty than to the innocent, and most people won’t bother to file a civil claim when their Fourth Amendment rights are violated. But the question of whether there is an effective remedy is separate from the question of whether there was a constitutional violation. The violation doesn’t suddenly vanish just because the innocent people whose rights were violated (most of whom, in this case, would seem to have no way of knowing that their rights were violated) don’t sue. So Reynolds’ only specific argument here is a non-sequitur. And unless one endorses John Yoo’s Schmittian tautologies, there’s simply no question that this policy violated the Fourth Amendment as well as FISA. And this is why, rather than explaining how , specifically, these warrantless searches could be constitutional in the face of the clear commands of the Fourth Amendment, Goldstein just babbles about his well-worn “Chimpy McHaliburton” strawman rather than making an argument.

The second point that’s worth making here is that there is also no remotely credible national security justification for these plainly illegal searches. Is there reason to believe that the communications of terrorists couldn’t be effectively monitored via the existing legal framework? Of course not. It’s worth highlighting this passage from the original NYT article:

The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant; intelligence officials only have to show probable cause that someone may be “an agent of a foreign power,” which includes international terrorist groups, and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say. Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.’s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.

As Josh Marshall points out, “in a quarter century, the FISA Court has rejected four government applications for warrants.” And, moreover, the government is permitted to seek retrospective warrants in emergencies. It’s obvious that if there is any reason to believe that terrorist communications (as opposed to, say, domestic political opponents) are being monitored obtaining a warrant is about as hard as finding wineries in the Napa Valley. Other than to simply assert his arbitrary wartime power, there’s no good reason for this illegal policy.

And this is what’s so chilling about Bush’s defenders, which is a common feature of wartime violations of civil liberties: their fundamentally authoritarian mindset. Essentially, defending this policy depends on the assumption of a zero-sum game between civil liberties and national security. Defenders of the policy simply assume, without any independent logic, that because this policy violated civil liberties it must, somehow, contribute to protecting national security. But there’s simply no reason to believe that it does. Even if you believe that formally illegal measures may be defensible in emergency situations, the national security justifications in this case don’t come remotely close to meeting the necessary burden. This policy is simply transparent illegality in the service of nothing but the power aggrandizement of the Bush Administration.

The Mariners Take an Insurmountable Lead

Ugh.

I like Washburn a little bit more than most stat-heads; three of his last five years have been genuinely good, two have been mediocre. There are reasons to be concerned about his performance last year, regardless of his 3.20 ERA. He’s just really, really not the kind of pitcher you want to on the hook for 4 years and $36 million. I mean, when you’ve gone and spent that, how much more could Millwood cost? Or Clement, who the Red Sox are dying to get rid of?

This is a bad offseason. It will be hard for the Reds to match this; they’re already pretty far behind on the Womack/Everett comparison, the Casey trade was actually a GOOD move, and there aren’t that many free agents left out there to waste money on.

The Tyranny of Mrs. Clinton

This really gets to the rub:

There’s only one way to scare the craven apologists in Category II: remind them of the very real possibility of a Hillary Clinton presidency in 2008 with unlimited powers against perceived terrorists, foreign and domestic. You mean you believed that all of those executive orders magically expire when your anointed security sock-puppet exits the White House as the worst executive ever?

The paranoia that conservatives regularly display regarding the Clinton presidency and the potential second Clinton presidency is astounding. Recall that Bill O’Reilly, for example, believed that the IRS was auditing him at the behest of the Clintons. And who could forget the Clinton murder list? How many of those who have leapt to the defense of the Bush administration on this one would be among the first to assail Hillary Clinton as a tyrant if she tried the same thing?

It’s not even that hard to construct a scenario through which these state tools might be used against conservatives. Imagine that an Oklahoma City style attack happens on a larger scale, or that several Oklahoma City style attacks occur in a short period. Then imagine that the President of the NRA says something as stupid as he said the last time a Federal Building was bombed. If I were a paranoid right-winger and a member of several legitimate (and maybe not so legitimate) right wing organizations, I would be very concerned about the ability of the executive to do just about anything it wanted with me.

Clearly, Bush supporters do not lack the imagination to come up with such a scenario. What they lack is the intellectual honesty to accept the consequences of their arguments.

In other news, Glenn Reynolds is a hack. Shorter Glenn:

The fact that elements of GWB’s legislative agenda have been defeated demonstrates that he is not a tyrant. Power would be within his grasp, were it not for those weak-minded fools in the Senate. They should be crushed without mercy…

FCS

AG does some nice work on the Army’s commitment to FCS, or Future Combat Systems. I remain ambivalent about FCS, much in the same way that I’m ambivalent about DD(X) and the LCS.

FCS promises a lot; dominance anywhere on the combat spectrum is a lot. Whether it can deliver is in more question. There are two things that I find very problematic about it. First, FCS is being sold as a system; all of its constituent elements need to be delivered as a brigade unit. This doesn’t suggest a lot of continuity within a unit or a lot of inter-operability between units. If things don’t work quite right, or if some of the technologies don’t come through, there are problems. Now, this represents to some extent a marketing decision on the part of the Army, as it wants everything. It is likely that many or most of the technologies associated with FCS would find their way into the Army regardless of whether the system as a whole is pursued.

My second issue regards dominance across the combat spectrum. In short, I just don’t buy it. I think there are lots of good reasons to think that some of the technologies that increase our capabilities at the high level of the spectrum (extra firepower, centralized command based on information dominance, tight air-ground cooperation) actually REDUCE our capabilities at lower levels on the combat spectrum. In other words, the tactics and the technologies that work really well at killing a lot of people in a short amount of time don’t work so well when the task is to make friends and find insurgents.

Now, most worrying about the above report is that the Army is willing to sacrifice (at least) six National Guard brigades in order to save part of the money needed for FCS. For obvious reasons, this sounds like a terrible idea to me. It’s a bad idea with legs; bad now, bad for the future. While there are a lot of indications that the Army specifically and the Pentagon more generally are getting serious about counter-insurgency and stability operations, this suggests that they are willing to sacrifice counter-insurgent capability now and in the future for the FCS system. That’s a real problem.

Dittosfan is indispensible regarding FCS issues.

Down with Louisville!!!

I am pleased.

The Alito Files

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