23 August 2007

Seriously, how can we NOT impeach this President?

This (quoted in full below) is as good a brief explanation as you’ll find of exactly how the President, by his own admission, condoned and/or ordered the commission of innumerable felonies by secretly subverting and massively violating the existing FISA law during the period 2001–2005, including by pressuring telecommunications companies to do so. Whatever you may think of the ambiguous changes Congress has since made to this law (in my case, rank horror), the fact remains that this occurred, and it is admitted. If you have enough faith in “leaders” to think this is OK... we’ll just let it go this time, next time how ‘bout letting us know in advance?.... you sure have a lot more trust in the essential goodness of American politicians, and a lot less belief in the checks-and-balances system of the Constitution that served us pretty well before this century, than I.

I doubt any of my farflung correspondents entirely buys the Administration’s Unitary Executive theory, which essentially says what Nixon said during the Frost interviews in 1977, ‘when the president does it that means that it is not illegal.’

So, doubters: since it was unquestionably illegal, and kept secret from the people and Congress, I have to ask: exactly how can this be tolerated in a society supposedly ‘of laws, not of men’? What rational reason can there be not to impeach this president? Please? Anyone?

If you answer, because it can't be done, politically, OK, but I disagree. We cannot let this stand without at least registering that it was fought against with all we had. We've already wasted two years.

Director of National Intelligence Mike McConnell yesterday gave a strange and rambling interview concerning the new FISA amendments, and several commentators -- including Spencer Ackerman, Digby and Jeralyn Merritt -- have discussed various oddities in what he said. I want to focus on a different, and I think highly revealing, aspect of his remarks.

Unintentionally, McConnell articulated what is an unusually clear and straightforward explanation as to the state of federal law regarding eavesdropping on Americans by our government -- unusually clear particularly for a Bush official, but even in general. McConnell explained:

"The reason that the FISA law was passed in 1978 was an arrangement was worked out between the Congress and the administration, we did not want to allow this community to conduct surveillance, electronic
surveillance, of Americans for foreign intelligence unless you had a warrant, so that was required."

That is exactly what happened, and the NSA scandal has always been, and always will be, this simple and crystal clear. In 1978, the American people responded to the discovery of decades-long abuses of secret eavesdropping powers by making it a felony for any government official to eavesdrop on Americans without a warrant. What McConnell describes an "arrangement worked out between the Congress and the administration" is what most people call a "federal law," but McConnell's basic point -- that "we did not want to allow th[e intelligence] community to conduct surveillance . . . of Americans . . . unless you had a warrant, so that was required" -- is exactly correct.

But in 2001, George Bush ordered the NSA to eavesdrop on Americans in violation of that very law, and continued to do so for the next five years at least. Bush ordered the NSA to commit felonies; we now that he did so; and nothing has happened. It is and always has been as clear as it is extraordinary.

Equally extraordinary is McConnell's admission -- which marks, I elieve, the first time this has been acknowledged -- that private telecommunications companies enabled this lawbreaking by giving the administration access to the conversations of Americans with no warrants:

"Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued."

McConnell went on to explain that the number one priority for the administration regarding FISA now is to demand that Congress make further FISA revisions by providing retroactive immunity to the telecom companies to ensure that there are no consequences from their breaking of the law:

"Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. . . . The issue that we did not address, which has to be addressed is the liability protection for the private sector now is proscriptive, meaning going forward. We've got a retroactive problem. When I went through and briefed the various senators and congressmen, the issue was: all right, look, we don't want to work that right now, it's too hard because we want to find out about some issues of the past. So what I recommended to the administration is, 'Let's take that off the table for now and take it up when Congress reconvenes in September.' . . . No, the retroactive liability protection has got to be addressed."

Think about how amazing this is. McConnell clearly described that in 1978, we enacted a law prohibiting warrantless eavesdropping; the Bush administration broke that law repeatedly; and the telecommunications companies actively participated in that lawbreaking.

And now -- as a matter of national security -- the Bush administration is demanding that Congress pass a new law declaring that telecom companies are immune from any and all consequences -- both civil and criminal -- in the event they are found to have violated the law. It is hard to imagine open contempt for the rule of law being expressed more explicitly than this.

What possible reason is there to protect anyone -- including telecom companies -- with a special law enacted to declare that they are relieved of all accountability for illegal behavior? And the premise of this argument is even more dangerous than the conclusion: it is all premised on the claim that these companies were only acting at the behest of George Bush, and therefore were entitled, even obligated, to do what they did. In other words, the President has the power to order private actors to break the law and when those orders are obeyed, the
private actors are immune from the consequences of their lawbreaking, because they acted at the Leader's behest.

That government officials like McConnell feel so comfortable openly admitting that the government broke the law, obtaining amendments to legalize that behavior after the fact, and then demanding immunity for the lawbreakers, demonstrates how severely the rule of law has been eroded over the last six years. It is not hyperbole to say that government lawbreaking has become formally legitimized.

So much of this is due to the profound failure of the media and our various "experts" simply to state the basic facts here -- that it is a felony to eavesdrop on Americans without warrants and yet that is what the Bush administration did. Instead, we have self-proclaimed "experts" like the Brookings Institutions' Benjamin Wittes trying to show how smart and thoughtful and knowledgeable he is (and explicitly describing himself this way) by writing in The New Republic articles claiming that these matters are far too complicated for even the most thoughtful experts (like him) to understand, let alone the hordes of simpletons acting as though they know Bush did anything wrong here by breaking the law.

Bush-defending Beltway elites have continuously clouded what is a clear issue of lawbreaking by engaging in all sorts of ill-informed "hand-wringing" and obfuscation masquerading as angst-ridden, Serious deliberation. Hence, as always, we have had two types of opinions dominating our mainstream discourse on the issue of patently illegal eavesdropping: (1) hard-core absolute Bush apologists, and (2) those whose overriding goal is to demonstrate how reasonable and thoughtful and Serious they are by stressing how important it is to fight The Terrorists and how complex and serious and terribly difficult and therefore murky these issues are. Mike McConnell therefore knows that he can expressly admit lawbreaking and demand immunity for it because there will never be any clear voices condemning it.

In the wake of the debacle of the Democrats' FISA capitulation, many
angry Bush critics have focused on the 6-month sunset provision in order to hope that Democrats will allow this law to lapse. That will never happen. Why would it? The administration will simply use the same Terrorist fear-mongering rhetoric and Democrats will respond in exactly the same way. Why would anyone think it will be any different in six months?

The real open issue is not whether the Democratic Congress will un-do the damage they have done. The issue, as McConnell makes clear, is whether the Congress will submit to still further administration demands by granting retroactive immunity to all lawbreakers (governmental and private lawbreakers alike). That is plainly what the administration is after, and it is hard to have much hope that they will be denied what they seek. McConnell's comments yesterday suggested strongly that Democrats were prepared this last round to include immunity, but only requested more time to determine how best that should be done and to obtain some information they have sought about past eavesdropping ("the issue was all right, look, we don't want to work that right now, it's too hard because we want to find out about some issues of the past").

Basically, then, the administration's posture towards Congress is now this: "we have been refusing to provide you any information about what we did over the last six years, and we will provide you some of that information only on the condition that you agree to provide full immunity for the consequences of any lawbreaking." Between (a) the Democratic Congress completing its capitulation to the administration's demands by granting full immunity and (b) reversing themselves on FISA after the 6-month period elapses, it hardly requires much consideration to know which is the far more likely outcome.

Glenn Greenwald

22 August 2007

Greenwald: Congress unpopular because they aren't doing what we want them to do

Glenn is in particularly fine fettle today and yesterday. He argues persuasively that the usual right-wing mantra about the Democratic Congress being almost as unpopular as Bush is total nonsense. The reason the Congress is polling low, as he proves with targeted poll questions, is that Democrats themselves are angry at Congress, but not for failing to "cooperate" with Bush, but for failing to stand up to him, and in particular for failing to end the War. Today's post elaborates that the usual conventional wisdom that Americans dislike investigations is in fact, just plain not true.

Now, it's become clear that many Congressional Democrats intend to give heart to the Republicans and vote to 'stay the course'... prolonging the War even further. These people just don't get it. By a large majority Americans want them to defy the Administration and get out of Iraq. If they don't do it, they will continue to be reviled and despised.

I just hope none of the Democratic presidential candidates... like Hillary Clinton, who seems to be drifting in this direction, misreads the Washington tea leaves yet again and ends up supporting some kind of continuing presence in Iraq, because they gotta know it'll never be over till we decide it's time for it to be over, and undergo whatever hardship is involved, and just get out.

How hard is that, really, to understand? Not very, since about 70% of the electorate gets it perfectly fine.


17 August 2007

R.I.P.: Right not to be imprisoned without trial; 1215-2001

Greenwald makes the excellent point that the Padilla guilty verdict, although dubious and certain-to-be-appealed due to the long history of extralegal procedures (including, unquestionably, torture) carried out against him, actually demonstrates the fallacy of the Bush administration's rationale for keeping executive imprisonment without charges: once they finally did charge him, he was convicted, so the claim they made that it was "too dangerous" to try him is obvious nonsense.

Elsewhere, Glenn has pointed out that the right to be charged with a crime, and not to be imprisoned merely at the whim or accusation of the king, has been Anglo-Saxon law since the Magna Charta. It was, in fact, one of the key provisions of that document. (In case you've forgotten, the MC dates from 1215, when the nobles forced King John the One and Only to sign it at Runnymede).

The Bush administration still claims the right to do this, upheld by an extremely right-wing Fourth Circuit panel. Supreme Court review will eventually occur, so there's hope for the restoration of our 800-year old rights.

**Please!** Don't misinterpret the above to be some kind of defense of Padilla. I'm not defending him. But the rights demonstrably guaranteed in law since long before the American constitution, and systematically violated by this Administration, must be protected. And if there is anyone who still claims, 'yeah, but it's wartime, and rights are always suspended in wartime,' I would ask that person to seriously ask himself if he really believes that this kind of war would ever end.


14 August 2007

Response to Patriotic Rap Video

I received a link from a relative to a patriotic rap on u-tube, by a "bad-ass" African-American marine who celebrated the patriotic willingness to sacrifice by fighting for our country. (Sorry, no link). This is my response.

I appreciate this because Americans need to be reminded ... frequently ... that only a small group of people are willing to actually serve the nation in the military. We treat our military without nearly enough honor, especially in the way they are underpaid and receive inadequate services, despite taking risks and suffering death and injury at rates that most Americans would never voluntarily accept. That's one of the reasons why I am a strong supporter of much better pay for our military, including Guard and Reserves; more guarantees that they will not be aked to always bear the total brunt, being sent back over and over for repeat tours; more guarantees of support for themselves and their families, free education, and, especially, free medical care and adequate income for life if they suffer disabling injury. (Shamefully, reservists and national guard do not get medical care beyond two years). These are the kinds of things that brought on an era of robust prosperity and peace in the era after World War II.

But patriotic messages like the one you sent are sometimes misinterpreted as endorsement for policies which, I believe, have not only unnecessarily put servicemen and women in harm's way without their being a compelling national interest for doing so, but have actually made our country less, not more secure. Support for the troops is the right thing to do... it's also right to ask the people to sacrifice a little, at least, to make sure they are taken care of and supported in real, practical ways. But that doesn't translate to support for unwise policies that have involved America in an dangerous and ultimately counterproductive conflict in Iraq, and which seem poised to involve us in still more dangerous and unnecessary conflict in Iran and elsewhere. The military doesn't make policy, and it's a soldier's responsibility to carry out what he's asked to do; but unfortunately there is no guarantee that what they're asked to do is wise policy.

I think it's very sad that we seem to have become so determined to project military power against those who have not attacked us, nor threatened to attack us... even at the expense of prosecuting the just action against those, in Afghanistan and Pakistan, who actually did attack us. We may support international action against genocide, but we must return to a policy of aggressive diplomacy; aggressive peacemaking, first and foremost, with military action always a last resort, and only to protect the vital interests of the United States, never to project power or to try to remake the world in our image. "Blessed are the peacemakers," as the Christian prophet, Jesus, said. We must always look for ways to defuse conflicts; to remove from our own actions causes of conflict and hatred towards us and others; to prevent war rather than cause it. These are the responsibilities of civilized, moral human beings everwhere and always. And for the main part, our country has upheld these ideals better than most. But I think we need a new infusion of these goals and intentions, and a major rethinking of how we can attain them.

Categorizing people as "enemies" becuase of their religion, however dangerous some of their beliefs may be, isn't helpful. Sometimes conflict is inevitable, but great care must be taken to minimize our role in causing it. This is part of our responsibility, too, as people of peaceful religions (or ideologies), who hew to decency, universality, and virtue... not violence, oppression and exclusion, as our ideals. I fear that much of what has occurred since 9/11 has failed these tests. It's time for a completely new vision of where we're headed and how we can and should best relate in the world, including how to best respond to the real threats that do exist.

10 August 2007

Jane Mayer: Black sites

The extent to which, under this administration, we as a nation have lost our moral compass, is documented in Jane Mayer's excellent article in the New Yorker, available online. It is absolutely sickening to realize that we have come to this pass as a society. I would hope that every candidate for office in both parties will be relentlessly queried as to whether they will repudiate this kind of use of torture by American officials once and for all. If not, they should be shunned and shamed back into private life, where they should retreat to some hole somewhere, because I hold it as absolute: civilized human beings do not commit or tolerate torture.

08 August 2007

Warrantless Surveillance and National Security, a debate

In memory of Nagasaki, August 8, 1945; may it never happen again.

I've been in a dialog with a friend about, generally, the justification of illegal surveillance for national security. The debate spills over into the whole subject of credible threat of domestic major terrorism, and what's being done about it. Below is the last go-round in an e-mail exchange.

My friend:

I am not worried about ANY administration during a war spying or wiretapping those whom they believe are attempting to injure citizens. I really don't think that the administration or any administration for that matter NEEDS any'permission' to wiretap or spy on anyone they choose as they'll do it anyway and then deny it...so what else is new. It may be warrantless, but it isn't unwarranted in my opinion. If there weren't people trying to kill us at home, then I would feel as you do now...as I did during Nixon's administration, or the subsequent discovery of such things routinely happening. Those are wrong because they're not national security issues (even though they might say they are)....

and no...I really don't think I'm paranoid about their wanting to kill us here. So we'll just differ on that one and hope for godsake that such events never unfold here. Personally, I wouldn't take the risk...certainly history is on my side of this one.


I didn't mean to impugn your views as paranoid. Poor choice of words. I just meant that that particular fear, which has been much discussed (i.e., Musharraf falls, al Qaida takes over and gets Pakistan's nukes), fails to take a number of factors into account that actually make that particular outcome so unlikely that it isn't worth the time to worry about it. (Not that there aren't plenty of other security concerns to worry about; and not that a wise government wouldn't have contingency plans even for these less-than-likely kinds of scenarios; I hope ours does).

You're right, we'll have to agree to disagree. I don't discount that there is a significant danger of terrorist attack, but I also don't expect you to agree with me about my assessment of it and my views of what should be done about it. Because it's only natural that people with different perspectives will look at the same situation, and reach different conclusions.

But ask yourself. If this administration, with its supposed secret intelligence that we're not privy to, really believed, as you do, that the danger of nuclear or other grand-scale wmd internal terrorist attack is so extreme, as to justify throwing out the 4th amendment (because that's what they've done, among other abuses of power), wouldn't they take serious action on some other rather obvious fronts? Wouldn't they tell the shipping companies their bottom line is less important than security, so we're going to spend the money, and make some sacrifices in the free flow of commerce, to make ports secure? Wouldn't they make an energy security "Manhattan Project" a highest national priority, because independence from Mideast Oil is so obviously a longterm strategic imperative? Wouldn't they at least encourage American youth to join the military, instead of sending National Guard and Reservists, who don't even get lifetime medical care if they're injured, for two and three tours of duty? (When have you heard Bush or Cheney ask for any sacrifice?) Wouldn't they distance themselves (at least) from the regime in Saudi Arabia, which is clearly playing both sides? Wouldn't they focus their war on where the terrorists are, not on some failed neoconservative dream of Empire? Wouldn't they ask the American civilian population to make some sacrifices, instead of cutting taxes in "wartime" and running up the worst deficits in history? I just don't buy it. The danger is real, but not extreme, and, even if it were, it does not justify this abrogation of the constitution.

The "warranted" surveillance you're talking about can and should be done legally. I've never said we shouldn't pursue domestic intelligence. We have in place a system that allows for this, and the argument that it isn't working is, I'm convinced, entirely bogus. I've read reams about this subject, and I'm totally convinced that's true. When a government asks for and gets secretive powers it doesn't need and uses national security as a pretext, watch out. We've been down this road before, with some real ugly results. This will likely be much worse if it isn't reversed. And the effects will have nothing to do with national security.

OK, I know, you don't agree, which is fine. People differ. I listen to what you've said, and I read what you sent me to read, but I'm not convinced.

I mentioned (before and above) several things that are really, really obvious that we should do to increase our security from domestic terrorist attack. Until those things are done, I can't take the fear-mongering of this administration too seriously, because I don't believe they believe their own story line. It just doesn't add up. They're more interested in preserving their domestic political power and preserving right-wing government, and that's the real reason they want to trash the constitution.

And having reiterated all that, I'll concur, let's hope and pray it never happens. I don't believe this issue (illegal surveillance) has anything to do with preventing it, but to tell you the truth, the other failures I mentioned above actually do worry me quite a bit, and I have not seen any significant interest in addressing them to make us safer in either party. I hope the next administration, even if it's (oh, the pain! the horror!) Republican, will do something about those problems, which to my mind are far more serious issues of national security.

07 August 2007

Senator Feingold on Warrantless Surveillance Shame

Thank you, Russ Feingold:

"Six years ago, in the aftermath of 9/11, Congress rammed through the USA PATRIOT Act with little consideration of what that bill actually contained. Five years ago, Congress authorized a reckless and ill-advised war in Iraq. One year ago, Congress passed the deeply flawed Military Commissions Act. And late last week, a Democratic Congress passed legislation that dramatically expands the government's ability to conduct warrantless wiretapping, which could affect innocent Americans. It is clear that many congressional Democrats have not learned from those earlier mistakes, two of which happened when Democrats controlled the Senate. Once again, Congress has buckled to pressure and intimidation by the administration. . . .

"The American people see through these tactics, and don't buy the president's attempts to use the threat of terrorism to get what he wants any more. Unfortunately, 16 Senate Democrats and an Independent, as well as 41 House Democrats were all too willing last week to let the president successfully employ this ruse yet again. . . . After all the wrong-doing by this administration, it was disheartening to see Congress bow to its demands one more time."

06 August 2007

FISA "Reform:" In Memoriam 4th Amendment, R.I.P.

The Democratic-controlled (allegedly) Congress has capitulated to the Bush White House's demand that they abrogate the 4th Amendment by passing of Administration bill to legalize Warrantless Wiretapping. This is bad news, folks, even though the Mainstream Media has scarcely mentioned it.

Greenwald, of course, has written extensively on this subject, which is the main topic of his book How Would a Partiot Act? He has often pointed out that by giving in to fear-mongering over the potential for terrorism, we have repudiated the basic bargain Franklin referred to when he said "The man who trades freedom for security does not deserve nor will he ever receive either." And what ever happened to the American society that heard another Franklin (FDR) remind us that fear is itself to be feared, for it can defeat us more easily than external enemies.

One more nail in the coffin of American representative government, a sick puppy indeed by this time.

At one time, I would have been confident that the Courts would not let this obviously unconstitutional legislation stand, but now, I feel no such confidence.

Requiescat in pace, O Constitution. Maybe someday a reformed court will say no to this. Otherwise, a basic bill-of-rights principle of the constitution will have been scrapped for good.