Friday, December 23, 2005

Spelling out the Letter of the Law

One of the great things about the Internet age is that when there is a specific legal dispute in the news, we can all become experts. All you have to do is to look up the text of the law, compare it to the facts of the case, and make your own assessment.

Right about now the Bush-allied press is gearing up for a real head-in-the-sandathon regarding Bush's blatantly illegal orders to the NSA to spy on Americans. And unfortunately that portion of the "liberal" press that makes its money by speaking in measured tones and qualified language about absolutely everything is singing from essentially the same hymnal.

The new script is "only crazy people think Bush violated the law." The idea is that there is this arcane law on the books and there are complicated quesions about what it says, and big minds are wrestling with it, etc. If you want the prototype column, Krauthammer helpfully brings it to us today.

In an attempt to assess the valdiity of this new script and determine if in fact the Ape Man is crazy for thinking Bush obviously violated the law, let's excerpt some key passages from the 1978 law Bush is accused of violating.

US Code

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

Let's run through this quickly. The president, through the AG, can authorize warrantless wiretaps. So far so good. Bush is in the clear! But we go on.

The communications intercepted must be exclusively between foreign powers! Well, in this case, the communications were always between a US person and a foreign power, except in a few accidental cases where they were between a US person and another US person. Let's go on further.

The AG must certify that there is "no substantial likelihood that the surveillance will acquire the contents of any communication to which a US person is a party." OK, well that's a problem, because in this case of course the wiretaps were explicitly wiretaps of communications to which a US person was a party.

Uncle Kevin was on yesterday alleging that these laws are "dubious." He provided no explanation for what he meant by this, other than that "Congress and the public may not be willing to support them." I'm not sure what evidence there is of that, particularly since Judiciary and Intelligence are already gearing up to hold hearings. There is certainly no evidence at this point that "the public" doesn't support the law, since the story didn't even break long enough ago to do reliable polling.

I'm not sure what to make of this, other than to guess that it's the typical intellectual torpor that seems to afflict the older generation of liberals, and makes them next to useless in any political fight. Everything is ambiguous by definition, so no judgment can ever be rendered and no stand can ever be taken. Perhaps I'm misunderstanding him, but seriously, if you can't draw the line here, you basically have no principles at all.


PhD9 said...

How do you think the current batch of Bush apologists would react if it was Janet Reno declaring her intent to use the NSA to spy on American Citizens.

Adam P. Short said...

Well, I think we all know the answer to that. But that doesn't concern me that much. I've made my peace with the fact that 35% of the country is under some sort of weird red charm spell.

What I don't understand is why people who AREN'T in that group are treating it like it's some sort of minor point of arcane constitutional law. If liberalism has any meaning or use in society, it is as a bulwark against this kind of behavior.

RBP said...

The framers of the Constitution devised an elaborate system of checks and balances to ensure our liberty by making sure that no person, institution or branch of government became so powerful that a tyranny could be established in the United States of America. Impeachment is one of the checks the framers gave the Congress to prevent the executive or judicial branches from becoming corrupt or tyrannical.
- Rep. James Sensenbrenner (R-Wis.), Opening Statement, Impeachment of William Jefferson Clinton, 10 December 1998

William Rivers Pitt used this quote at the beginning of his column on Wednesday. The hypocrisy on the right is evident. When the president breaks the law and then states defiantly that he will continue to break the law, any high school American history student can tell you what the remedy in the Constitution is - impeachment. The problem is, it's not just the president breaking the law. This neo-con ideology of fear and suspicion and torture and suppression is firmly entrenched throughout the administration and the leadership in congress. If we get rid of Bush, we get Chaney. If we get rid of Chaney we get Hastert. And then who's after Hastert? Bill Frist? (I'll have to look it up)

The only solution here, are the mid-terms next year, and the White House in '08. If the people don't stop electing these extremist candidates, the future of our system of government is in danger.

Ape man the other day you wrote that you would never vote for the Democrats again if they failed to act in this latest crisis. I understand your frustrations. But we're all going to have to do our part. That includes voting.

The GOP is controlled right now by a small fraction of extremist. Look how they clean up every four years for the convention. They trot out the moderates to appeal to the vast middle of the country. Then after the elections, they continue on their same hard right approach. They let main street know that they oppose gay marriage and abortion. They scream for more tax cuts. They tell everyone to be afraid, and to trust them, they would NEVER spie on you. But all the same, they don't need any oversight from the judiciary. Trust them, because they share your values and want to cut your taxes.

heatkernel said...

The idea of a fixed, written law that one obeys or breaks is such a rigid pre-modern conception, Ape Man. In the new post-modern regime, men of power creatively interact with the written law, deliberately transgressing the law's literal, denotative meaning, while simultaneously declaring the transgression itself a just and legal act. These men of power "expand the boundaries of what is legally permissiable"* without actually having to change any of the words in the written law. Thus is ushered in a new era in which Action triumphs over dessicated Logocentrism. The Bush-Men, by redefining a law through the act of transgression, are pointing the way to this purer and more noble mode of existence.

On a serious note, though, why does anyone buy the notion that intercepting electronic communications is an effective way at uncovering terrorist plots? All of the documented examples of disruption of terrorists plots that I'm aware of resulted from having informants. In countries that have long-standing terrorist issues, even members of the general public know that "human assets" is just how counter-terrorism work is done. Americans clinging to the notion that we can do counter-terrorism by signal-decoding typify the American over-confidence in "technology" and notion that we can accomplish the same things that others do without getting our hands dirty.

Anyway, Bush's claims that he was doing this to protect us from terrorists can be dismissed on these grounds.

heatkernel said...

*quotation from "The Agency That Could Be Big Brother", Published, December 25, 2005 in the NYT.
(this was meant to go in the previous comment.)

This is also the article that contains an assertion from a General about messages being intercepted on Sept. 10, 2001 from "Afghan pay phones". Serviced by Taliban Bell, Ltd., no doubt.

Anonymous said...

Enjoyed a lot! »