Saturday, December 24, 2005

I told you so...

Confirmation of massive, illegal violation of privacy rights of US citizens through telco and Internet monitoring, authorized by the "war preznit". The legal position of this administration (I am not kidding) seems to be that the "war preznit" is free to disregard existing US law in "times of war" like these. If Congress pushes the issue, as it should, we may end up with a full-blown constitutional crisis.

Bush is no more a war president than Ronald Reagan or Jimmy Carter, who faced down a much more formidable foreign adversary. You might argue that Al Qaeda is more dangerous than the USSR and eastern bloc, with their hundreds of ICBMs and thousands of nuclear warheads, but you'd be crazy. Let me offer the following analogy. While walking home you are confronted by a man with a loaded shotgun. By staring him down and pointing out that you yourself are armed, you avoid having your head blown off. Continuing on your way home, a small dog bites your ankle. Is the dog really a greater threat, just because it bit you, than the guy with the shotgun? If not, why should we allow Bush to unilaterally claim greater security powers than Reagan or Carter had? (Indeed, contravening the existing FISA law of 1978.)

In an op-ed article published Friday in The Washington Post, Mr. Daschle said he rejected a White House effort three days after the attacks to grant Mr. Bush specific authority to conduct antiterrorism operations within the United States as part of a broader resolution backing the use of force.

In seeking the specific authority for a domestic response, Mr. Daschle said, the White House was effectively acknowledging that the resolution did not cover domestic actions like spying on Americans.

"The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress - but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language," Mr. Daschle said in the article.


The White House has asserted that the resolution, adopted by Congress on Sept. 14, 2001, freed Mr. Bush from the requirement to get warrants to monitor international phone calls and e-mail of Americans and others in the United States. That resolution authorized the president to employ "all necessary and appropriate force" in response to the attacks on New York and the Pentagon.

But by Mr. Daschle's new account, which appears not to have been made public previously, the White House sought within minutes before the vote on the resolution to alter it to include new wording specifically granting power to carry out the antiterrorism campaign within the United States.

The White House, Mr. Daschle said, wanted the resolution to give Mr. Bush authority to use "all necessary and appropriate force in the United States and against those nations, organizations and persons" responsible for the attacks.


Mr. Daschle said he had turned aside the White House's effort to include "in the United States and" in that sentence, leaving the focus of the resolution on fighting terrorism abroad.

9 comments:

Dave Bacon said...

A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists

"If they get content, that's useful to them too, but the real plum is going to be the transaction data and the traffic analysis," he said. "Massive amounts of traffic analysis information - who is calling whom, who is in Osama Bin Laden's circle of family and friends - is used to identify lines of communication that are then given closer scrutiny."


So not only is it being backdoored out to the NSA, but the telecoms themselves are datamining! Wow, that's quite an admission isn't it?

mark said...

"If not, why should we allow Bush to unilaterally claim greater security powers than Reagan or Carter had? (Indeed, contravening the existing FISA law of 1978.)"

Because:

1. Unlike Reagan or Carter, Bush has a grant of authority from the Congress that formally recognized the invocaton of presidential war powers.

Under U.S. law, resolutions to use force and declarations of war are both authorizations of " hostilities" in the U.S. legal code. Same for international law which recognizes a " state of armed conflict".

2. FISA itself recognizes the presidency's inherent authority regarding foreign intelligence and warrantless surveillance but sets a 15 day time limit after the commencement of war. That limit however may not be consititutional given the unequivocal language in Article II. regarding the role of Commander-in-Chief, which like the power to grant pardons, has few qualifications.

On the other hand, this grant of legal authority would relate only to al Qaida and persons or groups assisting al Qaida. Surveillance of unrelated third parties would presumably still fall under FISA requirements or the amended " Lone Wolf" terrorism provision added in 2004 if they were engaged in independent acts of terrorism.

steve said...

It seems clear from Daschle's story that even the Bushies didn't think the 9/14/01 resolution granted him expanded domestic powers. Else, why would they ask specifically for it?

I doubt anyone involved with the negotiations over that resolution had any idea about the specific NSA capabilities for US Internet monitoring at the time. I suspect that they later unilaterally granted themselves those powers, with only brief and incomplete notice given to Congress or the existing FISA court.

The issue here is procedural -- did the executive branch grant itself vast new powers without properly consulting the legislative and judicial branches? Is this not risking a constitutional crises? Whether the purpose is good and noble (fighting terrorism) or not (Nixon ordering surveillance of his political enemies and anti-war critics), the point is that the checks and balances inherent in our system are more important than the time saved by cutting corners and then covering up. Bush should be impeached - he is just lucky we have a craven Republican Congress at the moment, who are more concerned with petty politics than protecting the US constitution and individual civil liberties. (Where are the real conservatives?)

dave s said...

I have relatively little concern for privacy rights here. Let me frame my comment by saying that I live in Arlington County, where Al Qaeda killed 160 people - parents of kids in my kids' school, husband of a school principal. We're not New York, but we do have a bull's eye on us. So gives me, maybe, a different perspective from that of someone whose state has not been under attack since the Japanese forest-fire balloons drifting across the Pacific in '44 and '45...

Privacy rights have been in my view invented into the Constitution in large part because contraception and sex practices were being criminalized, and finding a privacy right in the penumbras and emanations of the Constitution was a convenient tool to liberalize the laws on sex. I'm in favor of liberalized laws on sex, but I kind of think it'd have been better to have done it in a legislature. In response to dave bacon comment - I don't care at all if someone in the NSA looks at my calls to Switzerland - or California - and thinks whether I am calling the same guys as someone who Al Qaeda has been calling, and looks at me a little more closely, if that is the price of having them able to do that for people who are thinking how to kill people in Arlington again.

So - what Bush has authorized may or may not be legal, but if it isn't, it should be, and I'm glad the government is doing it and I hope it continues.

steve said...

I'm not against US intelligence monitoring of the Internet -- as long as there are checks and balances in place to prevent abuse of this power.

Currently, what passes for protection against abuse is not judicial supervision, but (see General Hayden's testimony before Congress) the fact that there is a "shift supervisor" in place at NSA. Make you confident that information unrelated to terrorism will not be recorded?

Didn't the GOP use Homeland Security to try and track down missing Texas legislators during a redistricting struggle a couple of years back?

Of course if we only envision the *good* uses of intel we don't see any problems. What about the worst case scenarios? What if Nixon or Hillary Clinton were President - then would you feel confident about unlimited, unending "war" powers?

Try this syllogism on for size:
"In my community of Washington DC we have a lot of people die from drug-related shootings, overdoses, etc. (a lot more than 160 in the last 5 years). That's why I favor the President's "War on Drugs" and why I favor unlimited powers for the NSA to monitor domestic communications to fight narcotics activity."

Do you agree with that?

mark said...

Steve wrote:

"Try this syllogism on for size:
"In my community of Washington DC we have a lot of people die from drug-related shootings, overdoses, etc. (a lot more than 160 in the last 5 years). That's why I favor the President's "War on Drugs" and why I favor unlimited powers for the NSA to monitor domestic communications to fight narcotics activity."

Do you agree with that?"

Well no since the " war on drugs" is a lazy metaphorical attempt to bolster a prohibition policy and the war with al Qaida actually constitutes a war, albeit an unconventional one, from the perspective of each belligerent party.

Commerce, even illegal commerce, is not the same thing as terrorism. Drug dealers attempt primarily to *avoid* the State or if possible *co-opt* its agents via corruption, not to overthrow the state or defeat it militarily.

Anonymous said...

dave s wrote, Privacy rights have been in my view invented into the Constitution in large part because contraception and sex practices were being criminalized, and finding a privacy right in the penumbras and emanations of the Constitution was a convenient tool to liberalize the laws on sex.

Except for this text:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."

You might have heard of it. It's something called "the fourth amendment to the US Constitution."

In response to dave bacon comment - I don't care at all if someone in the NSA looks at my calls to Switzerland - or California - and thinks whether I am calling the same guys as someone who Al Qaeda has been calling, and looks at me a little more closely, if that is the price of having them able to do that for people who are thinking how to kill people in Arlington again.

Except that you have no idea what the executive is going to do with this power. (Look at myriad examples throughout history; cf also steve's comment on DeLay's abuse of the Homeland Security infrastructure.) The same argument, after all, could be made for granting the government unqualified search power vis-a-vis domestic crime.


"The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society....[L]aw alone saves a society from being...ruled by mere brute power however disguised. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny."
---Justice Felix Frankfurter, US Supreme Court, concurring in United States vs. Mine Workers, 330 U.S. 258 (1947)

Dave Bacon said...

On a related note, it seems possible that the whistleblower about this NSA program has been revealed: http://abcnews.go.com/WNT/Investigation/story?id=1491889

Either a hero or a traitor, depending on the color of the crystal through which you look at the world.

Dave Bacon said...

Oh, or a psychologically unstable person with a grudge against the NSA. Got to consider all possibilities.

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