Wednesday, February 08, 2006

The Times that Try Men's Souls

By: UnrepentantNewDealer

This blog is at a crossroads. While I have agreed to try to make my posts fairly short, I am skeptical. Firstly, this blog is a “blog of the mind,” and short posts tend to be a mile wide but an inch deep, missing the crucial subtleties lurking out beyond the shallows. Secondly, it seems to be a universal rule: those blogs that have the shortest posts are also the ones that post most often, and those with the longest posts are those that post least often, due to the fact that the longer you go without blogging, the more you have to blog about. If we are going to go for short paragraph posts, we need to agree to post much more often, i.e., several times a day, at least. Something tells me that’s not going to fly. So, we’re right back where we started. I’m open to suggestions. In the meantime, I have a slightly lengthy post.

The Times that Try Men’s Souls

"THESE are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman."
--Thomas Paine, The Crisis, December 23, 1776

The biggest story right now is the NSA wiretapping scandal, with Senate Judiciary Committee hearings on the matter having begun on Monday. Just before the '04 election, (Scroll to the bottom-most post) I blogged on a similar matter, so I'll quote liberally from it now.

The White House has tried to confuse what is a very simple matter. In 1978, in response to Nixon’s wiretapping of political opponents and anti-war protesters, Congress passed the Foreign Intelligence Surveilance Act (FISA). FISA set up a special court of judges to hear government requests for special warrants to wiretap American citizens and legal residents whom the government has “probable cause” to believe are acting on behalf of a foreign power or organization. This system has worked smoothly, indeed, too smoothly: it has approved more than 15,000 requests since 1978 and rejected only a handful, probably due to the fact that judges are reluctant to second-guess our intelligence agencies on matters of national security. The FISA judges can be reached to approve a FISA warrant 24 hours a day. The law allows a FISA judge to approve a warrant request over the phone or via email. There is even a clause that allows the Attorney General to authorize a wiretap without getting a FISA warrant, so long as the government retroactively seeks a warrant within 72 hours. But all this wasn't good enough for Bush.

We have been treated to a series of excuses for the president’s behavior. Bush and his cronies have claimed that this program is a "vital tool" for fighting terrorism and Cheney has claimed that it has saved "thousands of lives." Yet, as David Cole points out, "The only individual he claims to have netted through the program is Iyman Faris, a truck driver who pled guilty to plotting to bring down the Brooklyn Bridge with an acetylene torch, a plot that raises more questions about Faris's sanity than about our security." Moreover, according to the FBI, the NSA used the program to dump a ton of info on the agency for it to sort through, an inefficient system as "virtually all of them, current and former officals say, led to dead ends or innocent Americans." Likewise, there is no evidence that the 9/11 attacks could have prevented if this program had been in use.

When that excuse falls flat, administration hacks whine, like little children, “Other presidents did it, too.” First, they cite Bill Clinton, though he denies that he ever authorized warrantless wiretaps, and I’ve not seen any evidence to the contrary. Then they cite Lincoln and FDR.

Yes,“Abraham Lincoln suspended writ of habeas corpus in the Civil War, and Franklin Roosevelt tried foreign nationals in military tribunals in World War II. But these were understood to be emergency war powers to be used only to ensure America's continued existence when it was seriously imperiled, powers to be used only until the end of the war and then abandoned for the constitutional tools of peace. The Constitution had to be violated in order to save it. But no one can seriously claim Osama bin Laden or any other terrorist poses the kind of imminent danger to Constitutional governance that the Confederacy or the Axis Powers did. This administration claims the right to use these powers for as long as the "War on Terrorism" goes on. Since terrorism has always existed, and since the United States is the dominant force (read: target) in the world, and is likely to be so for decades to come, these war powers could be exercised indefinitely, as long as a president can claim there are terrorists, somewhere in the world, who wish Americans harm. At this point, we will have given dictatorial powers to our president.” I couldn’t have said it better myself!

Next, they trot out the rationale that Congress authorized the president to wiretap without warrants in the resolution passed after 9/11 authorizing Bush to use military force against Al-Qaida and its state-sponsor, Afghanistan without a Congressional declaration of war. The resolution was titled the “Authorization for Use of Military Force" (AUMF). It said nothing about wiretapping, and the notion that an extremely general resolution can supercede a very specific long-standing law is specious in the extreme.

Further damning evidence comes from both sides of the aisle. Former Senate majority leader Tom Daschle claims that Bush tried to get a provision inserted into the AUMF to allow warrantless wiretapping, but Congress refused. Thus, for the administration to claim now that they know that Congress intended AUMF to confer this authority is comical. Senators on both sides of the aisle, including Republicans Sam Brownback and Arlen Specter have both denied that they intended AUMF to confer this power and both doubt the program’s legitimacy.

Moreover, Glenn Greenwald points out that in 2002, Sen. Mark DeWine (R-OH) introduced a bill to modify FISA by lowering the legal threshold for wiretapping from “probable cause” to “reasonable basis.” The bill was defeated due to strong White House pressure against it. The administration’s spokesman James A. Baker, notified Congress, “Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.” So, at the very moment the administration was telling Congress not to loosen restrictions to “reasonable basis” on wiretapping due to legal and practical concerns, it was running a covert program using the same standard of “reasonable basis.”

Finally, their case in shreds, the "Busheviks" play the last card in their deck: the “my program is constitutional and FISA isn’t” card. Their proof: the Constitution calls the president the “Commander-in-chief.” Actually, the exact wording is “The President shall be Commander in Chief of the Army and Navy of the United States.” Originally, this title was a sign of respect for George Washington, meaning nothing more than that the president was supposed to physically lead the military into battle. The last time a president led troops into battle, James Madison went down to humiliating defeat and the British burned down the White House. But, if Bush wants to lead troops in Iraq, by all means, I won't stand in his way.

Courts have consistently ruled for decades that wiretaps fall under the constitutional category of “searches and seizures” protected by the Fourth Amendment, which goes on to state that “No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So, if the administration is right, the fact that the Constitution happens to call Bush “Commander-in-Chief” overrides the protections of the Fourth Amendment, again a triumph of the general over the specific. Needless to say, the supporters of this program never cite the Founding Father’s original intent, for not one of the signers of the Constitution is on record as supporting this radical interpretation.

Ok, so we’ve dismembered all of the president’s excuses for breaking the law. So, why did he do it? It's tempting to ascribe this to sinister motives, such as "They bypassed the FISA court because they knew the court wouldn't approve their spying on political opponents." (Remember Richard Nixon’s warrantless wiretapping abuses, which were included in the Articles of Impeachment drawn up against him and which prompted Congress to pass FISA in the first place.)

While this sounds plausible, it ignores the fact that this is a pattern with this administration. From the administration’s insistence on keeping secret the records of Cheney’s energy task force to Bush’s executive order delaying indefinitely the release of declassified documents from the Reagan administration as required by the Presidential Records Act (PRA) of 1978 (which classifies the official records of the president as public domain documents that the public can have access to no later than 12 years after a president leaves office), from the refusal to allow his then-national security advisor Condolezza Rice to testify before the 9/11 Commission to White House stonewalling on the release of many documents and history of non-cooperation with any group attempting oversight of the executive branch from the General Accounting Office to committees of Congress and the Supreme Court, this White House has been the more determined to avoid oversight and constitutional checks and balances than any previous presidency.

And let us not forget the Patriot Act and other “anti-terror” legislation and policies: “The Bush Administration has claimed that the president has the right to designate not just foreign nationals, but American citizens as 'enemy combatants', subject to being secretly arrested, never informed of the charges against them (violating the constitutional guarantee of habeas corpus), not being able to choose legal council, having the government monitor any and all discussions with the government appointed-lawyer to provide incriminating evidence for the prosecution to use against them in court (thus violating attorney-client privilege, as well as all basic standards of fairness), and trying this said non-enlisted American citizen in a secret military tribunal, with the possibility of the death penalty being applied.... The government appoints the prosecutor, defense attorney, and the tribunal judges. The government is accuser, criminal investigator, prosecutor, defense attorney, judge, jury, and yes, even hangman, all rolled into one. No appeal is possible, and all of this can be carried out in complete secrecy, without anyone else--the accused's friends or family--being any the wiser."

Bush has gone out of his way to wriggle out of, or simply defiantly violate, treaties America has signed from the Geneva Accords to the UN Convention against Torture. There was much fanfare when Bush finally gave in and signed Congress’s new anti-torture law, but in his "signing statement," Bush essentially said, “I reserve my Constitutional right to break this law whenever I see fit, so there!” (I will give $5 to any reader who can find that clause in the Constitution!)

And now we have the president clearly violating the FISA law. FISA criminalizes wiretapping outside the FISA framework, Bush has authorized wiretapping outside of FISA; therefore, no matter the justification, Bush has broken the law. (But don’t take my word for it, the non-partisan Congressional Research Service concluded that the program “conflicts with existing law and hinges on weak legal arguments.”) Rather than deny it, Bush shouts it from the rooftops, claiming that it is not illegal at all. This sounds eerily similar to Richard Nixon’s justification, “If the president does it, that means it is not illegal.” Congress—and the American people—did not find that monarchical rationalization convincing in the 1970s. Let us hope they do not now.

The president, having long defied the law in private, has finally come out in the open to proclaim that he has and will continue to violate the laws passed by Congress. Congress now has only one of two options:

1) They can either demand full cooperation from the president with congressional committees and a special prosecutor and warn him that if he persists in breaking the law, he will be impeached; if he remains defiant, impeachment is the only constitutional remedy for getting rid of a power-hungry would-be king. A number of GOP senators have expressed doubts about the program’s legality and Arlen Specter has said, “Impeachment is a remedy. After impeachment, you could have a criminal prosecution.”


2) The Republicans in Congress can continue their M.O. of the last 5 years as lapdogs of this president who ask only “How high?” every time he says “Jump!” If this GOP-led Congress continues to refuse to fulfill its Constitutional responsibility to be a check and balance on the executive branch, they should immediately disband, anointing Bush as Caesar Augustus, King George III (the third president of that name; coincidence?), or “dictator-for-life,” whatever title is most to His Excellency’s liking.

This is truly "a time to try men’s souls." Past generations have confronted the greatest threats to our Republic, whether they be internal or external, and have never failed to rise to the challenge. Now, it is our turn. This is not a partisan issue, it is the challenge of our time. We will be judged by our children and grandchildren down to the last generation for our actions now, not for whether we are Democrats or Republicans, blue-staters or red-staters, but for whether in our nation’s time of need, we were “winter soldiers” or “sunshine patriots” and fair-weather friends of liberty. Let us once more head a man with an abundance of common sense: “Let it be told to the future world, that in the depth of winter, when nothing but hope and virtue could survive, that the city and the country, alarmed at one common danger, came forth to meet and to repulse it…. The heart that feels not now is dead; the blood of his children will curse his cowardice, who shrinks back at a time when a little might have saved the whole, and made them happy.”