If you're a regular reader of HOTM, you know where I stand on the recently enacted FISA Amendments Act of 2008, which grants the government broad new domestic eavesdropping powers and immunizes telecoms from previous felonies (wouldn't it be great if retroactive immunity from felonies were available to all of us? Tragically, you and I don't donate enough to politicians to qualify. But we can always hope).
Reading the transcript of the signing ceremony, I was struck by some of President Bush's rhetoric. The president said, "The bill I sign today will help us meet our most solemn responsibility: to stop new attacks and to protect our people." And he reiterated: "Protecting America from another attack is the most important responsibility of the federal government -- the most solemn obligation that a President undertakes."
What's odd about these statements is that they're at odds with the Constitution itself. Article 2, Section 1 provides, "Before he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation:--'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" Apparently, the framers thought the one thing so in need of protection that they required it to be called out explicitly in an oath is the Constitution. They didn't see fit to have the president swear an oath to defend the country, the currency, or anything else -- just the Constitution. For someone who purports to be a "judicial conservative", Bush's reordering of Constitutional priorities are odd.
True, Article 4, Section 4 provides, "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence." But there's nothing in the language of the Constitution providing that any of these responsibilities is "most solemn" or "most important." Those priorities are external inventions, and certainly not in keeping with a notion that we ought to interpret the Constitution based on its own clear language.
So we're left with a question: why would a president who purports to be a judicial conservative claim his most solemn obligation is to prevent attacks on the nation, when the Constitution itself clearly provides otherwise? If the president's reordering of priorities is correct, does it not follow that he might be impelled to protect America at the cost of the Constitution? Do we really want to empower any president, Democrat or Republican, with such a convenient rationalization?
The right is fond of pointing out that freedom isn't free. And certainly it isn't: likely it can only exist and be preserved in the presence of certain dangers (then-Secretary of Defense Rumsfeld himself pointed out that "Freedom is untidy.") Many of these dangers could be eliminated by a totalitarian government, just as we could dramatically reduce crime by eliminating Due Process and the burden of proof beyond a reasonable doubt. Would the trade-off be worth it?
What concerns me most is that President Bush's stated priorities -- Safety First, the Constitution Second -- might accurately reflect the current priorities of a significant number of Americans. If our culture comes to prize safety above all else, we'll gradually cash in our freedoms attempting to buy our safety. If that's really the way we've come to view the world, maybe McCain advisor Phil Graham had a point when he recently described Americans as "whiners" and victims."
Liberty is our precious inheritance. We can marshal it wisely, or we can place it in blind trust, where, predictably, it will be lost.
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31 comments:
Amen.
There is a wide swath of Americans who operate out of fear. The Constitution, particularly the Bill of Rights, is far too liberal for many of our citizens.
Even in this forum, a blog, people have asked if my outspoken opinions might not be too dangerous, given the crazies out there.
Hey, men and women have been brave enough to fight for my right to speak. I'm at least brave enough to use it.
Another great post. I don't have anything to add other than you've got a malformed link attached to the text that reads, "judicial conservative."
I will add that I miss the frequency of posts here at HOTM. I realize that you participate more at your forum, but tend to lose all sense of time when I'm there!
Roger that, Barry.
I was struck by this sentence:
So we're left with a question: why would a president who purports to be a judicial conservative claim his most solemn obligation is to prevent attacks on the nation, when the Constitution itself clearly provides otherwise?
I think the answer is that he does so because he wants to, and more importantly, because he can. The actions of George W. Bush aren't really surprising to anyone who has been paying attention, but that's the problem; people HAVEN'T been paying attention. Otherwise the national disgrace that is our current president would never have been permitted to be installed in the White House in the first place, let alone elected in 2004. The Britain's Daily Mirror got it right when they asked "How can 59,054,087 people be so DUMB?" after Kerry was defeated.
With all of the technology and telecommunications available to us, we are living in a terrifically misinformed time.
Paul
Sensen No Sen
Hi Barry. Something about me loves to ask questions like this. What would you have done in your CIA days if you were assigned the position to do the eavesdropping? Would you have done your job or resigned?
Best,
Hi Jim, I like to think that if someone at the CIA had asked me to do something illegal, I would have had the integrity to refuse. But it's always easy to say "I would do the right thing" when you're not actually there...
-- Barry
Thank you for this article/entry/post. It has given me fodder to think. I listen to talk radio all of the time, and have heard one slant on FISA. My opinion, minus Hannity's bias or anyone else's is that we should protect the Constitution and the country. (For me the two go hand in hand, actually) but not at the sacrifice of civil liberties. But is the average citizen at risk for those liberties to be violated? I may not know enough about how the 'eavesdropping' is selected, and perhaps I'm naively content in my own little world, but I do feel that if that world is made safer because something atrocious was avoided, it makes sense to have had it.
Leigh, I understand how you feel, but think about the implications. It's okay to break the law to avoid something atrocious? I suppose you could write a law to that effect, but it would be instantly abused and in any event there's no such verbiage in the Constitution.
As for the average citizen not being at risk of his civil liberties being violated, first, the Church Committee hearings in 1975 show this argument to be empirically false. But even if there were something to it, I imagine you could make the same argument for doing away with due process and the burden of proof beyond a reasonable doubt in criminal trials. Statistically, the change would probably affect very few Americans; probably only a tiny percentage of the country would be imprisoned for crimes they didn't commit. And imagine how many actual criminals would be caught in the dragnet, and the crime that could thereby be avoided. Would you propose such a change in the Constitution? If so, why? If not, why not?
Best,
Barry
Thanks, Barry. I wasn't thinking that the eavesdropping was illegal when you were in the CIA. I guess it wouldn't be fair to hypothetically place you as a contemporary CIA agent who is asked to legally eavesdrop while he has a strong political conviction against the new laws. And responses to questions like this can change from one decade to the next.
If I correctly understand this, I have no problem with the immunity for the telecoms because the telecoms acted according to the prerogatives of the President. I think that the telecoms should be safe unless the President would be tried and found guilty in an impeachment trial for making the information requests. (I'm not sure about the legal term for presidential prerogatives, but you must have covered that in one of your law classes.:)
I'm not sure that eavesdropping compares to unwarranted search and seizure. I'd feel harassed if the government searched my property without warrant. I might even feel harassed if the government searched my property with warrant. But I don't feel that my day to day life is disturbed if the government listens in to my phone calls to see if I'm plotting a terrorist strike.
I'll ask another question while I admit I'm not sure if you answered the question in a previous post. (And by the way, a category/topic list on your blog could help new readers of your blog to quickly look at your previous posts of serial topics.)
Do you think that you with nothing better to do or the ACLU could bring the new eavesdropping laws to court and eventually overthrow the laws in the supreme court?
I guess if you could do that, then the Senate could convict the President in an impeachment trial and prosecutors could punish the telecoms for felonies. Is this a vicious cycle or what?
"I have no problem with the immunity for the telecoms because the telecoms acted according to the prerogatives of the President."
Jim, think about this pernicious idea, which has become horrifyingly widespread in America today. You just said that the president not only has "the prerogative" to tell US citizens how to behave, but to immunize them from legal consequences if what he told them to do was illegal. Is this really what you believe? If so, what is the basis for your belief? Regardless, do you think this notion is consistent with democracy and the rule of law? If you do think "prerogatives" and democracy are consistent, can you explain the difference between a democracy and a monarchy?
Let me put the question another way: is there an area in which the president lacks the power to tell a US citizen how to act and to confer legal immunity for the action? What is the area? Why or why not?
One more attempt to rephrase: are you suggesting that a citizen should have legal immunity for anything he does at the request of the president (and by the way, what would be the basis for the president's power to make such a request to begin with)?
I can't tell you how weird it feels to me that so many Americans seem to share your casually stated view. When people start thinking this way, it doesn't bode well for the health of a republic.
"But I don't feel that my day to day life is disturbed if the government listens in to my phone calls to see if I'm plotting a terrorist strike."
Leave aside the question of constitutionality for the moment. Is there historical evidence of governments wielding eavesdropping powers according to their ostensible purposes? Or is there evidence of the opposite?
"Do you think that you with nothing better to do or the ACLU could bring the new eavesdropping laws to court and eventually overthrow the laws in the supreme court?"
Jim, if you really believe that preventing executive abuse of the Constitution is such a low priority that one would have to have "nothing better to do" to justify pursuing it, I doubt anything I might say will change your point of view. Regardless, your last paragraph made no sense to me, so I don't know how to respond to it.
-- Barry
Thank you, Barry.
'If you do think "prerogatives" and democracy are consistent, can you explain the difference between a democracy and a monarchy?'
USA democracy has an executive president who is subject to Senate impeachment rules. I don't know enough about law to recite the limits of presidential prerogatives. But I know that the President is subject to checks and balances which would be enforced by Senate impeachment rules.
"Let me put the question another way: is there an area in which the president lacks the power to tell a US citizen how to act and to confer legal immunity for the action? What is the area? Why or why not?"
"One more attempt to rephrase: are you suggesting that a citizen should have legal immunity for anything he does at the request of the president (and by the way, what would be the basis for the president's power to make such a request to begin with)?"
I don't know enough about law to completely answer these questions. Years ago, I read about some of the checks and balances for presidential prerogatives but I don't have the background to write a scholarly paper on it. I'd be interested in reading a review of it as long as it isn't written in legalese.
"Leave aside the question of constitutionality for the moment. Is there historical evidence of governments wielding eavesdropping powers according to their ostensible purposes? Or is there evidence of the opposite?"
I haven't read about the history of this topic in many years. If I recall, there have been cases of major abuse with governments that had no checks and balances for governmental authority.
'Jim, if you really believe that preventing executive abuse of the Constitution is such a low priority that one would have to have "nothing better to do" to justify pursuing it, I doubt anything I might say will change your point of view.'
I'm sorry that I didn't give enough context to my "nothing better to do" statement. I was thinking that you're probably not thinking about quiting your current career so that you can become a lawyer who specializes in supreme court cases. I had no intentions of suggesting that possible presidential abuse is a minor issue. And I understand that it would take a team of lawyers working overtime to challenge the new laws.
And my last paragraph was an attempted at satire. I tried to say that if lawyers convinced the Supreme Court to overthrow the post-911 eavesdropping laws, then the Senate could impeach and convict the President.
Barry, if you can prove to me that the President abused the Constitution, then you could change my mind.
The change for criminals and due process? No I would not change the constitution for that. Our system is not perfect, and even with due process, innocent people are imprisoned. The law is geared at protecting the guilty first, and it came about because of abuse of the earlier system and without due process, more innocent people suffered than do now. I want to pose a small, small example. There is a landlord. She is beneficent and has been lenient with wayward tenants. But no rent has been paid for months and now she has to evict them. But, despite their debt in the thousands, they continue to live there for free until the time until they are served/evicted. Once served, they still have 30 days in which to get their stuff together. As the landlord, she is without rights, it would seem, as she cannot lease the property to more suitable tenants and she cannot recoup her debt. Ok. So that isn't criminal, but rather small claims. But it's a big deal to the landlord. My point is that she has to follow the rules to allow the tenants time to fight, if indeed they are wrongfully evicted, which does happen, or if not to fight, to leave and have another place to go. Now, for criminal, and the answer to this question, I am thinking of a movie I watched, made in the seventies I think, with Peter Fonda? He was on trial for murder and represented himself. The case was overturned or something because at his first trial due process wasn't followed.
I'm not as clever as I'd like to be in my reply, but I hope my answer is understood. Due process is important and should be kept.
As for changing the constitution for the present challenges, I know little about and want to make a more informed answer. I do appreciate how you've spurred me to think.
Mr. Eisler:
The comments here leave me wondering if doing something illegal to gather information isn't just doing things the lazy way.
What I mean is that I always thought there were legal means to gather intelligence through hard work and some kind of detailed methodology.
I just keep getting the impression that flouting the Constitution is something someone would do if they didn't want to really work hard at the job the way it's supposed to be done.
Then again, maybe I'm misunderstanding the issue. Can you shed some light?
- - Dana
I work in the LEA Intelligence community. We don't have the time nor the manpower or the capability to listen in one every conversation of every Joe Blow citizen. To say that FISA infringes upon the Constitutional Rights of Americans is just stupid.
We look at you if you give us reason to look at you. If you are committing crimes, funneling large sums of money to the Middle East, buying or stealing materials that are precursors to bombs, poisons, etc, if you make threats against our country and/or its leaders - we are going to look at you. Damn right. Because we are invested with the great responsibility of protecting life and property - we use every means available to serve and protect. If that means tracking a phone call or listening to a conversation in order to save lives – then we’re going to do it. The reason Obama signed that bill is because he wised up and realized that the Constitutional Rights of American citizens means little if those American citizens are dead.
Wise up - we are only trying to protect you and the ones you love - stop acting like that is a bad thing.
Anonymous, thanks for the comment, and for the important work you do.
"To say that FISA infringes upon the Constitutional Rights of Americans is just stupid."
I respectfully disagree, and can't help feeling that starting out by telling me my opinion is stupid is a poor way to persuade me that I'm mistaken...
"We look at you if you give us reason to look at you."
I would hope so. But is it always the case that intelligence and law enforcement authorities look at citizens *only* for *legitimate* reasons? I'm not asking you this rhetorically; I'm asking if you believe there have never been abuses of government search powers. Or can we just trust the government always to be reasonable and responsible? If so, why do we need a FISA court at all? In fact, why do we need the Fourth Amendment? Aren't such laws just impeding the important work you do and aiding terrorists? Don't such laws, in fact, merely put more Americans at risk of slaughter -- and what's the use of a Constitution if you've been slaughtered and can't avail yourself of its benefits?
"We use every means available to serve and protect." Presumably legal means.
"The reason Obama signed that bill is because he wised up and realized that the Constitutional Rights of American citizens means little if those American citizens are dead."
Anonymous, for me to take this argument seriously, I'd have to believe you're psychic and uniquely privy to the inner workings of Obama's mind. I don't. Regardless, your argument sounds dangerously close to the kind of "we had to shred the Constitution to save America" rationalization I argued against in my original post. It's also an example of the kind of binary thinking I write about from time to time here and that I rarely find persuasive: either the government assumes these new powers or the terrorists will slaughter us all. Either we go to war against Iran or accept Iranian nuclear hegemony in the middle east. Either you're with us or you're with the terrorists. Etc.
If you agree that we -- as a democracy governed by the rule of law - do need the Fourth Amendment and statutory protection, why would you support a bill that enables the executive to spy on Americans with no judicial oversight? Do you not trust the judiciary? If not, why not? How has the requirement of judicial oversight impeded you in the important work you do protecting American lives? In the long history of FISA, I think the court has rejected something like two (out of thousands) of requests from the executive. How have you been impeded up to this point? And how will the new law make you more effective in your protective role?
These questions require a bit more thought, information, and argument than insults, implicit claims to psychic powers, and gross generalities unsupported by facts, but addressing them would be infinitely more productive, too.
Best,
Barry
Agreed, starting out by telling you that your opinion is stupid was far from being persuasive, but then probably no less persuasive then you questioning the professionalism and integrity of myself and those I work with.
“But is it always the case that intelligence and law enforcement authorities look at citizens *only* for *legitimate* reasons?” - From my personal and professional experience – yes.
Obviously someone who is extremely paranoid and distrustful of their government will not believe me no matter what I say, what argument I may present, what evidence I may produce – because it is contrary to their pre-formed opinions.
“Or can we just trust the government always to be reasonable and responsible?” – Again, yes. You seem to have become so jaded and cynical with the current administration that you are unwilling to give law enforcement professionals and IC members the benefit of the doubt. So quick are you to wave a disapproving finger at individuals who have worked their entire careers, through the ups and downs of numerous administrations, to protect the people, uphold the laws, and keep society from falling down around our ears. Granted, nobody’s perfect and there have been those in the LEA and IC that are/have been disreputable – But these folks are few and far between. We try to weed those folks out early on – their government careers only last three years or so, but every so often a few squeak by.
But let me ask you some questions: Have you had your Fourth Amendment Rights violated? Do you know, personally, anyone who has had their Fourth Amendment Rights violated?
When you say ‘the executive’ who is enabled to spy on Americans with no judicial oversight - who are you talking about? Big Brother? Corporate America? The Bush Administration? I have personally worked on several terrorism related investigations and not once did “the Executive” (whoever that may be) come to my office or call me on the phone and direct me on how to collect my intel or conduct my investigation. Do you know how difficult it is to get a T3 wire? You know that a T3 is the last course of action? Are you aware of the requirements that must be met to submit under FISA? Are you so well versed on the procedures for requesting judicial authorization for electronic surveillance and/or the physical search of person(s) engaged in espionage or international terrorism that you can judge what is proper or improper? Without FISA, without the Patriot Act – what tools do you suggest we use to keep America safe? What tools do we use to identify those who wish to do us harm BEFORE they act? Surely you would prefer LEAs to be proactive rather than reactive to terrorist event(s)?
Your hatred of the Bush administration has left you cynical and paranoid – and perhaps rightly so – but don’t clip LEAs wings and still want us to fly – it’s not going to happen.
Let me leave you with these:
1. Not trusting your government is your prerogative and fundamental right – but letting your opinions feed into blind paranoia is a detriment to us all and serves no real purpose.
2. Please, don’t patronize me by thanking me for the important work I do – it sounds more than a bit disingenuous - considering your political views.
Anonymous, first let me assure you that when I thank you, or any other LEO or soldier, for the important work you do, my gratitude is heartfelt and I'm not being the least bit patronizing or disingenuous. I have friends serving or who have served in law enforcement, the military, and intelligence, and believe (as Dave Grossman points out) that society couldn't survive even a single generation without their brave and dedicated service. I don't know what about my political views, even as you seem to perceive them, would lead you to think otherwise, but you are mistaken.
You say, "Agreed, starting out by telling you that your opinion is stupid was far from being persuasive, but then probably no less persuasive then you questioning the professionalism and integrity of myself and those I work with."
I think you're misunderstanding me. My views on the importance of checks and balances on government power are an outgrowth of my views on human nature, not some commentary on your individual professionalism and integrity or that of your colleagues. As James Madison said, "What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary." So your individual professionalism and integrity is irrelevant to my argument. Even if such matters were relevant, what would I have to go on? A couple anonymous comments on my blog isn't much, I'm sure you'd agree. On the same scant acquaintance, would you expect me to trust you in my house, with my money, with members of my family? Probably not -- and yet you're put off that with no more to go on, I lack sufficient faith in the quality of your character to be comfortable with your capacity to operate without meaningful oversight?
You say that in your personal experience, intelligence and law enforcement authorities look at citizens only for legitimate reasons, and that "obviously someone who is extremely paranoid and distrustful of their government will not believe me no matter what I say, what argument I may present, what evidence I may produce – because it is contrary to their pre-formed opinions."
Wrong on all counts. I have no trouble at all believing that you are accurately reporting your individual experience. But your individual experience is not the sum of human nature, nor does it supersede the events uncovered by, for example, the Church Committee that led to the enactment of FISA in the first place. Your argument is akin to saying, "I've never personally seen a crime committed, therefore we don't need criminal laws, and anyone who disagrees is extremely paranoid and distrustful."
You say that "we can we just trust the government always to be reasonable and responsible.”
I asked you before, and you didn't answer: if this is the case, do you think we need the Fourth Amendment (or the Constitution generally)?
"So quick are you to wave a disapproving finger at individuals who have worked their entire careers, through the ups and downs of numerous administrations, to protect the people, uphold the laws, and keep society from falling down around our ears."
What individuals have I disapproved of? Again, you're taking my argument -- which is the same as Madison's -- as some sort of personal indictment. Your point comes down to something like, "If you think law enforcement and intelligence agencies need meaningful oversight, it means you distrust me personally." This strikes me as not only a non sequitur, but as an amazingly self-regarding way of looking at the world.
As for your questions, I'd be happy to respond, but I've already asked you a bunch and you haven't troubled yourself to answer them. Why would you expect me to do you a courtesy you haven't extended yourself?
Best,
Barry
Hi Barry,
I reviewed some information on the web that helps me to give a better answer to some of your questions about Presidential Powers.
"Let me put the question another way: is there an area in which the president lacks the power to tell a US citizen how to act and to confer legal immunity for the action? What is the area? Why or why not?"
"One more attempt to rephrase: are you suggesting that a citizen should have legal immunity for anything he does at the request of the president (and by the way, what would be the basis for the president's power to make such a request to begin with)?"
If I correctly understand the history of this issue, US intelligent agencies made requests of Telecoms based on the USA PATRIOT Act. If this is the case, then I believe that the government that authorized broader access to eavesdropping cannot turn around and punish Telecoms for cooperation with Patriot Act spying.
I don't see that eavesdropping compares to the inconvience of search and seizure. On the other hand, eavesdropping without Checks and Balances would be a horrible problem.
I suppose that Amnesty et. al. versus McConnell is challenging the constitutionality of FISA Amendments Act of 2008.
http://www.aclu.org/safefree/nsaspying/35942prs20080710.html
http://www.aclu.org/pdfs/safefree/faa_complaint_20080710.pdf
All of this goes back to the constitutionality of eavesdropping in the USA PATRIOT Act. And I don't think that the constitution has been violated. And I'll continue to read criticism of the laws.
Best,
Anonymous, I received your latest comment on my iPhone, where the "Accept Comment" and "Reject Comment" links are a little too close together to be safe for my thumbs. I accidentally hit reject, so I've cut and pasted the comment from the notification email here. Sorry about my mistake, and if you'd rather post the comment again directly, please feel free.
Anyway, here's the comment; thanks for the response, and I'll have one for you shortly, too.
Cheers,
Barry
*****************************************
Anonymous wrote:
Let me begin by saying that, perhaps, we are both misreading and misunderstanding each other. When you say, “… thanks for the comment, and for the important work you do,” I cannot help hear the hallow ring of insincerity in that statement when, later on in your reply, you throw in my quote, “We use every means available to serve and protect,” followed by your own quote, “Presumably legal means.” This implies that I, as an LEA Intelligence professional, would use OTHER than legal means to do my job. Was that not a slight of hand insult directed at myself and others working in law enforcement or... what? I’m sorry, I must have misunderstood you.
As for my precognitive abilities in reading Barack Hussein Obama’s mind – I am an analyst by trade – making informed, educated scientific wild ass guesses as to why things happen the way they happen – this is what I do. So when Obama signed the bill for Warrantless Surveillance and Telecom Amnesty – I figured the liberal minded individual had seen the light. Perhaps, (because he is a Presidential candidate) he had received a briefing from those in the know on the ins and the outs of why this surveillance act is an important tool for those of us fighting terrorism. Forgive me for being presumptuous.
Now, on to your questions you feel I did not directly respond to:
Do we need the Fourth Amendment and statutory protection? Depends. As someone who detests ‘binary thinking’ you should agree that there is a lot of gray area here – nothing is in black and white when the actions of a few endanger the lives of many. You want to afford rights to those who plot and plan the demise of hundreds, if not thousands, of U.S. citizens? Forgive me for having the ‘Dirty Harry’ mindset that some individuals are less deserving of the rights that are afforded to you and I.
Why would you support a bill that enables the executive to spy on Americans with no judicial oversight? I am still not entirely sure as who “the executive” is - - ? You, being a former IC member, should be very well aware of how intelligence collection works. You gather and gather as much as you can, from as many sources as you can, often with no rhyme or reason. You’re not collecting with any true specificity (collection plans can be so very vague at times) – you’re just collecting information for the sake of collecting information. Why? Because you never know just what might turn up – and if something might supply a significant lead to fuel an investigation or even initiate one – particularly subject matter that deals directly (or even indirectly) with terrorism - than you have done your job. Telecoms who supply the IC with information should have their asses legally covered for supplying that information.
As for domestic collection – that area is even fuzzier. It really boils down to time, doesn’t it? Situations could present themselves as having very short reaction times – minutes instead of hours. How well would the American public take the comment, “Well, we probably could have, would have scrambled those jets earlier to take down those aircraft - had we been better informed at the time.” What slowed you down? “Getting the warrants, issuing the subpoenas…”
Do you not trust the judiciary? I seem to have more trust in it than you do. But as I pointed out, time is a factor. The wheels of Justice can, and often do, go into overdrive when needed – but what do you do when that overdrive isn’t fast enough? (Sometimes it is easier to ask for forgiveness then it is to ask for permission – especially when lives are at stake.)
How has the requirement of judicial oversight impeded you in the important work you do protecting American lives? It hasn’t. But then, I don’t work for the NSA.
And how will the new law make you more effective in your protective role? Telecoms will be much more willing to share their information. But then everything I get from a Telecom is done via subpoena (administrative or grandjury). And so long as that subpoena is worded right, I’ll get the information I want.
Let’s make something clear – information derived from telecommunications, whether domestic or international, are collected via classified means. Classified information cannot, generally, be used during prosecution. Classified material can really only be used as a lead – it points the investigator/analyst in a particular direction or at an individual or group. The investigator follows up by looking closely at the parties involved – and finds things that CAN be used to fully initiate and/or justify the investigation. So, technically, the information derived from telecoms is not used as evidence. Let me also tell you this: 99% of all the intel leads that we get and follow-up on are not prosecuted for terrorist acts – they are prosecuted for the crimes they are committing to support those terrorist acts: money laundering, structuring, marriage fraud, smuggling, counterfeiting, and most any other crime under the sun. Though we can only put them away for 10 to 12 years (at the most) we are taking them out of action – we are disrupting terrorism – we are saving American lives.
So this is in response to a blog entry and perhaps a bit overly simplified, but it roughly explains the system in place. There is intelligence oversight, there are AUSAs who guide and direct the investigators in their investigations so cases can hold up in prosecution, there are plenty of checks and balances in place. Whether this is ‘meaningful’ oversight is a matter of opinion. Nevertheless, the system works.
I suppose I stand corrected in that it isn’t your dim view and lack of faith in the LEAs and ICs – it is your generally dim view and lack of faith in humanity as a whole. To this I can only say that there are probably far more trustworthy individuals in the LEAs/IC than in the general population. Take it for what it’s worth.
Now – I have taken time to answer your non-rhetorical questions - - now answer mine - - have your rights been violated? Do you know of anyone, personally, who have had their rights violated? Is there some kind of Gestapo secret police that is knocking down doors and dragging innocent people off into the night? People arrested for making phone calls??
If the current system in place violates 4th amendment rights and trashes the Constitution, what system should be in its place? You have a better idea on how to identify those who wish our country harm?
I’d be interested to know. Or is there no way, Constitutionally, to seek these people out?
Jim, the key is what's in the Patriot Act (or in any law), not whether the government makes the request. Otherwise, someone from the government could say, "Jim, I need you to rape and kill someone pursuant to the Patriot Act" and you would presumably have immunity for carrying out the (illegal) request.
Corporations have battalions of lawyers to advise them on compliance with countless federal and state statutes. "The government asked me to" has never been an acceptable excuse for violating one of these laws, nor, if you think about the implications, should it be.
--Barry
Anonymous said:
Let me begin by saying that, perhaps, we are both misreading and misunderstanding each other. When you say, “… thanks for the comment, and for the important work you do,” I cannot help hear the hallow ring of insincerity in that statement when, later on in your reply, you throw in my quote, “We use every means available to serve and protect,” followed by your own quote, “Presumably legal means.” This implies that I, as an LEA Intelligence professional, would use OTHER than legal means to do my job. Was that not a slight of hand insult directed at myself and others working in law enforcement or... what? I’m sorry, I must have misunderstood you."
Me:
I see where you're coming from. I didn't mean the comment to be insulting; I intended it instead to introduce a critical additional component of the discussion: that the means must not only be necessary, but also *appropriate*. But I can see where my comment seemed deliberately provocative -- my apologies for that.
Anonymous:
As for my precognitive abilities in reading Barack Hussein Obama’s mind – I am an analyst by trade – making informed, educated scientific wild ass guesses as to why things happen the way they happen – this is what I do. So when Obama signed the bill for Warrantless Surveillance and Telecom Amnesty – I figured the liberal minded individual had seen the light. Perhaps, (because he is a Presidential candidate) he had received a briefing from those in the know on the ins and the outs of why this surveillance act is an important tool for those of us fighting terrorism. Forgive me for being presumptuous.
Me:
My read, based on Obama's past statements and on the contents of the new FISA, is that his reversal was a craven, politically motivated stunt. It might be that we're both just showing our biases here.
Anonymous:
Do we need the Fourth Amendment and statutory protection? Depends. As someone who detests ‘binary thinking’ you should agree that there is a lot of gray area here – nothing is in black and white when the actions of a few endanger the lives of many. You want to afford rights to those who plot and plan the demise of hundreds, if not thousands, of U.S. citizens? Forgive me for having the ‘Dirty Harry’ mindset that some individuals are less deserving of the rights that are afforded to you and I.
Me:
Who decides who is afforded Constitutional rights? The Constitution wouldn't be worth very much if it provided that the government can extend or deny its provisions as the government sees fit -- and it does not so provide.
Anonymous:
Why would you support a bill that enables the executive to spy on Americans with no judicial oversight? I am still not entirely sure as who “the executive” is - - ?
Me: Not sure where the confusion is on this one. I'm talking about military, law enforcement, and intelligence organizations acting at the direction of the president. The NSA, the FBI, the CIA...
Anonymous:
As for domestic collection – that area is even fuzzier. It really boils down to time, doesn’t it? Situations could present themselves as having very short reaction times – minutes instead of hours. How well would the American public take the comment, “Well, we probably could have, would have scrambled those jets earlier to take down those aircraft - had we been better informed at the time.” What slowed you down? “Getting the warrants, issuing the subpoenas…”
Me: But FISA in all its incarnations has always provided for retroactive warrants in exactly the kind of circumstances you describe. What's new and uniquely dangerous about the new FISA is that in various domestic areas it eliminates the requirement of probable cause and judicial oversight entirely. See the links below.
Anonymous:
Do you not trust the judiciary? I seem to have more trust in it than you do. But as I pointed out, time is a factor. The wheels of Justice can, and often do, go into overdrive when needed – but what do you do when that overdrive isn’t fast enough? (Sometimes it is easier to ask for forgiveness then it is to ask for permission – especially when lives are at stake.)
Me:
Again, FISA already provided for these concerns -- saying that it needed to be modified to address these concerns is inaccurate and misleading.
Anonymous:
And how will the new law make you more effective in your protective role? Telecoms will be much more willing to share their information. But then everything I get from a Telecom is done via subpoena (administrative or grandjury). And so long as that subpoena is worded right, I’ll get the information I want.
Me:
Exactly. What was missing in the five years following 9/11 were subpoenas. FISA required them, the telecoms shared customer data in their absence, and FISA by its clear terms made each such instance a felony (again, see links below). A subpoena requires a statement of probable cause and necessitates judicial oversight. Which is why the new FISA bill is so disturbing -- it eliminates the requirement for the very tools you say are already adequate for you to do your job.
Anonymous:
So this is in response to a blog entry and perhaps a bit overly simplified, but it roughly explains the system in place. There is intelligence oversight, there are AUSAs who guide and direct the investigators in their investigations so cases can hold up in prosecution, there are plenty of checks and balances in place. Whether this is ‘meaningful’ oversight is a matter of opinion. Nevertheless, the system works.
Me:
Maybe this is where our disconnect lies. From what I can see -- and you seem to agree -- the system has been working. You have the tools you need; you are not unduly burdened by oversight. So why the changes to a system that works, changes that include amnesty for lawbreaking by telecoms?
Anonymous:
I suppose I stand corrected in that it isn’t your dim view and lack of faith in the LEAs and ICs – it is your generally dim view and lack of faith in humanity as a whole. To this I can only say that there are probably far more trustworthy individuals in the LEAs/IC than in the general population. Take it for what it’s worth.
Me:
I can't say it's worth very much to me, because of my dim -- or call them Madisonian -- views of human nature. When anyone says, "just trust me, I don't need oversight," it makes my teeth itch.
Anonymous:
Now – I have taken time to answer your non-rhetorical questions - - now answer mine - - have your rights been violated?
Me:
Not that I know of. But why do you keep asking me this? My own experience is barely relevant here. No one has ever stolen my car; does that mean we don't need laws against car theft?
You keep bringing up your personal experience or mine as some sort of benchmark for experience generally. I've said before, and will repeat: human nature and human history contain principles much larger than your own individual experience. To illustrate that point, I included a link in a previous comment to the findings of the Church Commission which led to the establishment of FISA.
Anonymous:
Do you know of anyone, personally, who have had their rights violated?
Me:
Again, not that I know of. But nor do I know anyone personally who has been murdered. It doesn't follow from that that I should favor repealing homicide statutes. See my comments above about the near-irrelevancy of this line of argument.
"Is there some kind of Gestapo secret police that is knocking down doors and dragging innocent people off into the night? People arrested for making phone calls??"
Me:
You're losing me. The existence of the Gestapo is the only thing we need to be concerned about? There are no governmental abuses possible other than the creation of a Gestapo?
See also, Godwin's Law...
http://en.wikipedia.org/wiki/Godwin's_law
Anonymous::
If the current system in place violates 4th amendment rights and trashes the Constitution, what system should be in its place? You have a better idea on how to identify those who wish our country harm?
Me:
Again: if the current system has struck the right balance between safety and the Constitution (and you seem to believe it has), why has President Bush worked so hard to strike a new balance?
Probably we're at the end of the line here, argument-wise. If you're curious, here are a few links with more details about what the new FISA contains and why its boosters' arguments that we needed it are so bogus.
http://www.salon.com/opinion/greenwald/2008/07/10/aclu/
http://www.salon.com/opinion/greenwald/2008/07/02/obama_fisa/
http://www.salon.com/opinion/greenwald/2008/04/11/mukasey/
Here's one that's especially relevant to the question of whether the system was already working:
http://www.salon.com/opinion/greenwald/2008/03/02/fisa/
-- Barry
Hi Barry,
I'll give you an example of what I think goes beyond the constitution. The search and seizure of laptops with no warrant or probable cause goes beyond the constitution.
http://www.washingtonpost.com/wp-dyn/content/article/2008/02/06/AR2008020604763.html
Best,
Anonymous,
Legislation passed during this administration allows the president to circumvent state governors and call out the National Guard directly if he decides he wants to declare martial law; designate American citizens (not just foreign nationals) as "enemy combatants" and imprison them without trial; eavesdrop and perform sneak-and-peak searches without informing the subject of the search; place people on "no fly" and "terrorist watch" lists with no defined set of criteria or even a method for getting their names removed once they are on such a list; and a whole host of other things that should make any red-blooded American's toes curl.
While, for the sake of argument, I will assume you are well-intentioned, let's cut to the chase: the idea that your opinion of right and wrong or even trustworthiness supersedes the law and the Constitution is absolutely staggering in its arrogance. This country was not founded for the convenience of the government and its bureaucrats, or even its cops and soldiers. Just the opposite in fact - it was founded on the principle that the government is not to be trusted, and that vision has been proven wise and correct repeatedly by the machinations of people like J. Edgar Hoover, Richard Nixon, Ronald Reagan and Oliver North and now George W. Bush and Dick Cheney.
We, as citizens, are not here to be "protected" by you; you are an employee of the public in what is supposed to be a nation of laws, rather than one where the judgement of people who sign themselves "Anonymous" determines how best to nursemaid adults as if we were children. If you believe otherwise, then by definition, you do not believe in American democracy. I suppose that is your perogative, but pardon me if I don't take your self-justification and imperious view of your role in our society as some kind of God-given right that I have to swallow because you tell me it's good for me.
Any power you have is derived - or at least is SUPPOSED to be derived - from the very people upon whom you look down as less trustworthy than your coworkers. If the opinions and attitudes you have expressed here are any indication, then those of us who are concerned about the serial abridgement of basic rights in the United States have every reason to be worried.
Paul
Sensen No Sen
pbi,
Let’s set a few things straight:
It is a fact that the United States operated under a continuous state of emergency from 1933 until 1976. To correct this situation Congress passed The National Emergencies Act (50 U.S.C. 1601–1651) in 1976 to stop open-ended states of national emergency and formalize Congressional checks and balances on Presidential emergency powers. The act sets a limit of two years on states of national emergency. It also imposes certain "procedural formalities" on the President when invoking such powers, and provides a means for Congress to countermand a Presidential declaration of emergency and associated use of emergency powers.
The perceived need for the law arose from the scope and number of laws granting special powers to the Executive in times of national emergency (or public danger). Constitutional protections are subject to revocation during a state of emergency including the right of habeas corpus.
In addition, many provisions of statutory law – as many as 500 by one count – are contingent on a STATE OF NATIONAL EMERGENCY.
According to a 1990 report to Congress the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens. That’s right; a report made seventeen years ago – before the first attack on the World Trade Center, before the Alfred P. Murrah Federal Building, and before the idea of killing of 3,500 innocent Americans was a gleam in Bin Laden’s eye.
I guess your biggest problem is the assumed "executive powers" of the president. But keep in mind that from the founding of this nation, American presidents have developed and used various types of presidential or executive "directives." The best-known directives are executive orders and presidential proclamations, but many other documents have a similar function and effect. Presidential directives have been raised to dangerous levels by Presidents William Clinton and George W. Bush. In fact, an excellent quote from a Clinton advisor which described the strategy: "Stroke of the pen . . . . law of the land - Kind of cool."
It was due in part to concern that a declaration of "emergency" for one purpose should not invoke every possible executive emergency power that Congress in 1976 passed the National Emergencies Act. Among other provisions, this act requires the President to declare formally a national emergency and to specify the statutory authorities to be used under such a declaration. The declaration must be published in the Federal Register. The president must state what laws are involved and the order must be published in the Federal Register so that the Congress MIGHT ACT ON IT IF IT SEES THE NEED TO COUNTERMAND THE PRESIDENT.
The US Congress has never countermanded a presidential executive order, in fact it has rarely stood up to "executive privilege" of any kind. It's simply not an issue and although Congress provided in the National Emergencies Act for the possibility of a legislative veto that would terminate an emergency, the Supreme Court struck down the legislative veto in 1983.
In a national emergency, one thing a president might do is enact martial law – call out the troops. Can the President impose martial law on his own say-so? Well, yes, whenever he decides to. – He is, after all, the President.
US CODE TITLE 10-332: Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary, to enforce those laws or to suppress the rebellion.
I dare say that Barack Hussein Obama (should Hell freeze over and he becomes President of the United States) will use his position to edict numerous executive orders to do what he feels needs to be done. As Mel Brooks said, “It’s good to be the King.”
I do not think I implied that my opinions of right and wrong or even the trustworthiness of US Federal employees and/or military supersedes the law and the Constitution. My point being that the very vast majority of us working in law enforcement, the military, and assorted other agencies, are doing the best we can with the tools that we have. And as for arrogance – well, those who live in glass houses…
Anonymous,
My biggest problem is in no way the executive powers of the president; my biggest problem is that the Constitution lays out rules for the balance of powers in the government, and the Bush Administration and Congress keep trying to violate them. This is either a nation of laws or a nation of men, and only the former is a democracy.
And to cite one example of arrogance and what comes across as "you knowing better," how about: "Do we need the Fourth Amendment and statutory protection? Depends. As someone who detests ‘binary thinking’ you should agree that there is a lot of gray area here – nothing is in black and white when the actions of a few endanger the lives of many. You want to afford rights to those who plot and plan the demise of hundreds, if not thousands, of U.S. citizens? Forgive me for having the ‘Dirty Harry’ mindset that some individuals are less deserving of the rights that are afforded to you and I."
I find you telling us that maybe we don't really need the Fourth Amendment for these grey areas AMAZINGLY arrogant. Who are you to make said determination for me or anyone else? Who are you to determine who gets rights and who does not? Who are you to believe yourself capable of determing guilt or innocence on your own without recourse to a system of justice?
I absolutely believe that, as you put it, the vast majority of people working in law enforcement are doing the best they can with the available tools, but that changes nothing about your role in this society. Likewise, it doesn't change the fact that failing to blindly trust the government - as shown by history - is anything but foolish or paranoid; it is distrust well-earned.
You, and everybody else who is a citizen of this country, is subject to the Constitution, period. I'm not sure how that viewpoint is arrogant, unless it's because I'm not rendering unto you some level of awe you think you deserve.
Paul
Sensen No Sen
PBI,
(Sorry it took so long to get back with you - was at a conference and then did some CT training - so I was out of pocket for awhile.)
I think you are blinded by your idealism. But in the immortal words of Col Jessep: "I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide and then questions the manner in which I provide it. I would rather you just said "thank you," and went on your way."
But since I seriously doubt a "thank you" is what I'll get from you - let's just agree to disagree, give each other the single fingered salute - and be on our way. Life is to short for this BS.
Here's more to be worried about:
http://www.washingtonpost.com/wp-dyn/content/article/2008/08/15/AR2008081503497_pf.html
Anonymous,
Rob nailed it already, so I will refrain from repeating his remarks, although I could not agree with them more.
Your subsequent comments have proven beyond a shadow of a doubt that the judgments of your arrogance I made earlier are completely deserved. My "idealism" as you call it is in keeping with the foundational principles of this country, and if anyone should be fully informed by those principles it should be people like you who are actually paid to protect them. Your claim to be "providing freedom," by the way, is laughable; it's like a guard at the National Gallery claiming to "provide art."
Freedom is something of which we sacrifice a little to give you a job because we deem some level of security a fair trade-off - up to a point - and that point has long been in the rear view mirror. We arrived at that trade-off as a society of adults, with the full intent that we are in control of that arrangement, not you. If you are doing that for which you were hired and actually earning the portion of my tax dollars that go to pay your salary, that's as things are supposed to be. Any gratitiude offered above and beyond that will be freely given when it is deserved, and not before; it's not part of your employment package, and it's not something you inherently deserve because of the position you fill.
And no, I won't agree to disagree, because your attitude is exactly the kind of menace the founding fathers sought to eliminate through the system of checks and balances enshrined in the Constitution. This is not "BS" - it is the very basis for the United States, and it is the only thing that has separated us from all of the also-rans to come before us.
So, go ahead and flip me off if that - along with quotes from cheezy Tom Cruise movies - is the best you can do, but I think most of us here would be a lot more impressed if you demonstrated that you actually understood the history and political mechanisms of this country instead of wrapping yourself in wholly un-American delusions of grandeur.
Paul
Sensen No Sen
I didn't mean to imply that "our American freedoms are BS" - I meant simply that this argument is BS. It is BS because you don't seem to grasp the difficulties that exist in keeping America safe. Not only do you not seem to grasp the difficulties, you also seem not to care. You speak of freedom as if it is something you deserve, as if it is your God given right - and I am here to tell you that - they are not. Freedom has a price. And so does safety and security. And as well and good as the Constitution is, it has the maximum effective range of squat when you have to console a mother whose child's dead body is pulled from the rubble of a terrorist attack, or explain to a father whose son is gunned down by MS-13 gang members, or explain to a news reporter how high explosives made it onto a plane carrying 315 passengers. Your freedom means squat if you’re dead. What I find interesting is that you seem to be separating security from freedom when it is, most obviously, an intricate part thereof. You cannot have one without the other.
I submit to you that I am not arrogant – I am just a LEA professional trying to do my job and do it well. I have tools in my tool box that make life a little bit easier. I don’t use them because I am lazy, I don’t use them maliciously, and I actually try not to use them at all – only when I have to. But these tools help me when things get tough, when other forms of Intel tell me something is up, and I have no other way to corroborate the information OR when someone or something seems suspect I can use the tools to verify or disprove the threat.
But let’s go ahead and do away with the tools and security measures we’ve been using, the investigative and prosecutorial procedure – just cut it back or do away with it all together, eh? They infringe upon our freedoms. Our police forces may be out gunned, and technologically destitute, but hey – so long as guys in uniform are not listening in on people’s conversations – then we’re all the better for it, right? So what if someone steals your identity? So what if crime runs rampant? So what if our society crumbles because we live in fear of those who will do us harm? So what? We still have our freedoms. We live in fear – but that’s a small price to pay, is it not?
As I said, freedom isn’t free – and it takes a lot more than some old piece of parchment that was written 232 plus years ago to guarantee those freedoms. It takes continuous perseverance, it takes loyalty and dedication, it takes blood, sweat, and tears – it takes far more than what many Americans are willing to give. We Americans are a rich spoiled lot who expect everything to be given to us. We sit around and bitch and whine and complain to whoever will listen – be it at the water cooler at work or a blog on the internet. We act like we have all the answers while we sip our Starbucks coffees and surf the internet at work. We are the ultimate armchair quarterbacks, calling out the perceived misdeeds of our government all the while knowing that we wouldn’t take a million bucks to be in a position of real authority – because we know that making the hard decisions is a lot harder than it looks – and is a thankless, piss poor job to have.
My single fingered salute to you is still firmly in place, PBI. It’s not the best I can do, but it gives me a certain amount of satisfaction doing it.
Anon. 8:27:00 AM wrote:
"You speak of freedom as if it is something you deserve, as if it is your God given right - and I am here to tell you that - they are not."
I'm not as eloquent as others here, but my retort, for what it's worth is as follows:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Best Regards,
The Lone Haranguer
P.S. - - Positions like yours is why I feel I have to post anon myself.
Lone Haranguer:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights - that among these are Life, Liberty and the pursuit of Happiness."
No truer words were ever spoken - but these truths were not self-evident to the British - and a good deal of American blood was spilt, and has continued to be spilt, to secure that Life, Liberty and the pursuit of Happiness you and I enjoy. Just because you personally do not have to do a thing to enjoy these freedoms doesn't mean that those freedoms were not bought and paid for by someone else. Freedom has never been free.
PBI promotes the fallacy that we are all subject to the Constitution – when in fact it is just the opposite – The Constitution is subject to us, hence all the amendments over the years. He believes that the only thing holding our society together is a piece of paper and that without it, we are all doomed. Quite to the contrary – we don’t need a piece of paper to guarantee our ‘inalienable Rights’ or tell us how to treat each other like normal human beings. PBI (and Barry, too) seem to buy into the premise that people are inherently bad and cannot be trusted to do the right thing. Barry calls it “Madisonian” - ‘I call it the “Mad Max” premise – we’re doomed, doomed, DOOMED!”
Here are the facts:
1. The Government is NOT out to get you
2. Law Enforcement is full of highly professionally individuals who take their jobs very seriously – we will only look at you if you give us reason too.
3. The Intelligence Community is also full of highly professionally individuals who take their jobs very seriously – and we use whatever means available to identify, quantify, and analyze any and all perceived threats.
4. The Government is NOT out to get you
5. Everything else is just anti-government conjecture that would not and does not hold up in the light of day.
P.S. - - Positions like yours and PBI’s and Rob’s - and all the others who read Barry’s Blog - are why I feel I have to post anon myself. The knife cuts both ways and it seems those on the ‘opposing’ side, like myself, bleed the most.
Anonymous,
Been away for a while, but in the meantime, Lone Haranguer has responded with exactly what I would have said.
Your arguments hold no water whatsoever; the Constitution exists today BECAUSE government has repeatedly demonstrated that it cannot be trusted. It's existence is not necessarily because someone is out to get us - although that certainly happens sometimes - but because well-meaning individuals step over their bounds. The contention that law enforcement and intelligence only looks at you if given a reason has been proven false over and over and over again. In fact, go to Glenn Greenwald’s site, and see here, here and here for the most recent examples of law enforcement's abuse of power in the political realm.
The Constitution is subject to us as a country - not you as an individual. As individuals, the rules we have all agreed to live by are based on the Constitution and the law, and your argument that any one of us can side-step those things because that person believes "it's for the best" is the path to anarchy. The Constitution is amended by the nation; not by faceless bureaucrats who have managed to grasp some power the origin of which they conveniently forget.
In any case, your authoritarian bent seems pretty deeply ingrained, so I'm going to hang up my hat on this exchange. Feel free to take some last shots if you want, but I'll venture that your repeated efforts to justify your belief that you and your cohorts are above the law and above the Constitution have pretty much made my arguments for me anyway.
PBI
Sensen No Sen
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