Michael Bérubé - American Airspace

Trust

Today we return to the creed of the radical right’s defense of domestic spying, “I trust in the Bush admin’s good faith and in the process that led up to authorization of the program.” I don’t imagine that I have to work very hard to convince readers of this humble—but never credulous—blog that anyone who utters such a sentence in 2005 should not be trusted with any task more consequential than ordering pizza. But because national security inevitably involves matters about which government cannot be perfectly transparent, it is not unreasonable to expect ordinary citizens to have some level of trust in their leaders regarding foreign and domestic intelligence to which we have no access (even if we do have a couple of “friends” in intelligence). So for now, I’m going to pretend that the burden of argument is on me to explain why I don’t trust the Cheney Administration with any secret powers.

The first reason has to do with the law itself: as Russ Feingold points out,

• FISA established a secret court that could issue wiretap orders if the government showed probable cause that the individual to be tapped is an “agent of a foreign power,” meaning he or she is affiliated with a foreign government or terrorist organization. This is an easier standard to meet than the criminal wiretap standard, which requires that there be: (1) probable cause that the individual to be tapped has committed, is committing, or is about to commit a crime, and (2) probable cause that communications concerning that crime will be obtained through the electronic surveillance.

• In the 27 years since it was established, the FISA court has turned down only a handful of applications for wiretap orders. The number of approved FISA wiretap orders has jumped since September 11, 2001, with 1,754 FISA orders issued last year, up from 934 such orders in 2001.

• FISA already addresses emergency situations where there is not time to get pre-approval from the court. It includes an emergency exception that permits government agents to install a wiretap and start monitoring phone and email conversations immediately, as long as they then go to the FISA court and get a court order within 72 hours.

(The full text of Feingold’s statement is up at TalkLeft.) FISA already gives any administration all the tools it needs to conduct surveillance of anyone suspected of being an “agent of a foreign power.” The Federal Intelligence and Surveillance Courts are “non-adversarial”; there are no challenges to any case brought before them by the government, and, as you can see, they almost always approve applications for wiretap orders. So the idea that the radical-right Cheney Administration needed some extra-FISA authorization for really fast, really secret surveillance is simple nonsense. Any person making such a claim is a person I do not trust, and any government making such a claim is a government I do not trust.

The idea that FISA speaks or belongs to a “pre-9/11” world is especially disingenuous. Exactly how is FISA’s emergency exception inadequate to the world after 9/11? It permits the government to begin surveillance immediately. To make the kind of case Condoleezza Rice tried to make this past Sunday, you would have to argue that the Cheney Administration needed to bypass FISA in order to go back in time and install wiretaps before they decided to do so.

But there’s another reason I don’t trust the Cheney Administration, quite apart from its production of faux-news reporters and programs, its doctoring of scientific reports on the environment, its delusional claims of Iraqi WMD and Saddam’s links to al-Qaeda, and its response to natural disasters in the Gulf Coast in non-election years. That reason is Jose Padilla.

Now, sometimes I’m as gullible as the next fellow. (Just ask him! He’ll tell you.) When the Department of Justice first announced its apprehension of Padilla, I got the impression that John Ashcroft himself had intercepted Padilla on his way to Dupont Circle, about to detonate a dirty bomb that would kill millions. (Am I alone in this? I need to ask the next fellow. Do you get that impression too?) Only gradually did I learn that although Padilla was, in Bush’s words, “a bad guy” who may have had very, very bad thoughts, his dirty bomb was not about to go off in any American city anytime soon. Instead, Padilla, for all his thuggery and all his contacts with al-Qaeda abroad, seems not to have gotten past the stage of having ideas for dirty-bomb-related program activities. Nevertheless, this did not stop the Cheney Administration from adducing Padilla as Exhibit A in the domestic front of the War on Terror:

WASHINGTON (CNN)—President Bush on Tuesday plans to highlight the disruption of an alleged “dirty bomb” plot as proof of his view that government agencies are cooperating effectively to fight the terrorist threat, officials said. . . .

According to his prepared remarks, the president will make the case that having the intelligence analysis in the same department as the agencies that would respond to threats will streamline the government’s response time and reduce the possibilities for delay and confusion.
In those remarks, Bush refers to the arrest of Padilla as proof that his directives to improve coordination between the CIA, FBI and other government agencies “are yielding results.”

Remember those wild and crazy days of May-June 2002? Padilla was the very first American citizen we nabbed in the post-9/11 world, and the Cheney Administration wasted no time or effort in trumpeting his arrest to that world. Indeed, as you’ll recall, Padilla was deemed to be so dangerous that he was held for over three years without legal representation and without being charged with a crime. So while we mourn the Cheney administration’s shredding of the fourth amendment, folks, let’s take a moment of silence to remember the passing of the fifth, as well. You know, the bit about not being deprived of life, liberty, or property, without due process of law.

Exactly how close was Padilla to detonating his bomb? Lewis Koch, writing in the Bulletin of Atomic Scientists, explains just what it takes:

The richest source of radioactivity is spent fuel rods. But spent nuclear rods are not exactly lying around like piles of abandoned automobiles. Terrorists looking to get the “dirt” for a dirty bomb from spent nuclear fuel rods would have to get them from a nuclear facility.

Putting aside the controversy surrounding security at U.S. nuclear power plants, a would-be dirty bomber faces a Herculean task. A spent fuel rod weighs about 28 kilograms, with 36 rods weighing more than a metric ton. Heavy shielding and remote controls are required in their handling, because each rod exposes anyone standing nearby (within a meter) to a lethal dose within seconds. To prevent a quick death from radiation, the thieves would need to encase the rods in a 40-plus-ton, lead-lined shipping cask (18 rods will fit in one cask) and use shielding and remote handling equipment to move the rods at every stage of the operation. After securing the rods in a protective cask, the thieves would need to move them to a location where they could be matched with explosives, then move them to the target site. All that shuttling means the gang would need a specialized truck built to handle the rods and cask. These trucks are, as one can imagine, large, cumbersome, slow-moving, and easily identifiable—not exactly stealthy.

Now, don’t get me wrong here. I’m not suggesting that we should have waited until Padilla and his friends (if he had any) had collected a dozen or more rods and put down a rental deposit on a large, cumbersome, specially designed truck. This humble and law-abiding blog will not become the online headquarters of Free José Now. On the contrary, I think Padilla should have been charged and tried a long time ago, and it would be OK with me if he were convicted on conspiracy charges, too. But that’s not my point. My point is this: based on how the Cheney Administration handled the arrest of Padilla, I don’t believe they’ve used their extra-FISA powers to apprehend a bunch of Padillas we don’t know about in the intervening years. Everything about the Cheney Administration tells me that if they had uncovered more “agents of a foreign power” like Padilla, they’d have wasted no time in making the announcement, crediting themselves with having averted death and terrible devastation, and designating their would-be terrorist as an enemy combatant. Honestly, they’re not shy about doing things like that.

So I tend not to think that the Cheney Administration needs super-secrecy in order to do lots of good anti-terrorist deeds they can’t tell us about. Quite apart from the fact that they didn’t need to evade FISA to apprehend Padilla in the first place, there’s the fact that they used his arrest—and deprived him of certain rights we once considered inalienable in this country—as part of a PR campaign for their version of the post-9/11 world. And that version looks like this: as Lewis Koch writes,

The government’s case rests on an unusual argument. The spokesman for the Justice Department’s Criminal Division, Bryan Sierra, contends that U.S. Code 18, section 4001(a), which reads, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” provides no check on the president’s powers as commander in chief. Instead, Sierra cites section 4001(b)(1), which reads, “The control and management of federal penal and correctional institutions, except military or naval institutions, shall be vested in the attorney general.” And to whom does the attorney general report? The president. In other words, in the Justice Department’s tortured logic, as commander in chief, the president is not bound by Congress’s rules on imprisonment and detention.

This is a radical-right government at work, folks. It specializes in tortured logic, just as it specializes in torturing suspects until they tell them whatever the Cheney Administration wants to hear.

And for lack of a steady supply of more Jose Padillas right here in the land of the free, your radical-right government has been ~~snooping into interlibrary loan, interrogating college students~~ [12/24: nope, it turns out they haven’t been doing that—check the new link] and threatening scholars and publishers with “grave legal consequences for editing manuscripts from Iran and other disfavored nations.” I know, it’s sometimes too much to think that it’s really happening here. But I believe that’s no excuse for being so foolish as to trust this government with anything as serious as national security, and I also believe I’m not alone in this belief.

Posted by on 12/20 at 01:00 PM

Are you sure about that pizza thing? Cuz you could end up with a forced cafeteria ideology pizza (i.e. cajun duck burrito pizza). And that shit just ain’t pizza.

Posted by Roxanne on 12/20 at 03:14 PM
It begins at the top, stays at the top, and will always be the “topping”

“"A couple of weeks ago, Doug Thompson, the proprietor of the political news Web site Capital Hill Blue, reported that President Bush referred to the Constitution as “just a goddamned piece of paper.”

This remark came during a November meeting with Republican Congressional leaders about renewal of the Patriot Act. They were trying to tell the president that some of his conservative supporter are still upset over what they believe is an overreach of federal power.

“I don’t give a goddamn,” Bush allegedly retorted. “I’m the President and the Commander-in-Chief. Do it my way. ... Stop throwing the Constitution in my face. It’s just a goddamned piece of paper.”

This story, according to Thompson, vouched for as true by at least three people present at the meeting, reinforces our view that not only does the Bush administration not care about the Constitution or civil liberties, it also is quick to confuse dissent with disloyalty."”

Randolph T. Holhut: The president must be held accountable. Period!

Posted by on 12/20 at 03:33 PM
Bravissimo! *Now* can we impeach Bush?

I’m looking forward to your commentary on the judicial take-down of ID in Dover today.

Posted by on 12/20 at 03:41 PM
"To make the kind of case Condoleezza Rice tried to make this past Sunday, you would have to argue that the Cheney Administration needed to bypass FISA in order to go back in time and install wiretaps before they decided to do so.”

It seems that they might actually be able to do this?? Apparently the FISA regulations allow for a critical 72 hour period to do the spying, then go get the secret warrant, if the spying needed to be done because of those mysterious and otherwise ambiguous “exigent circumstances.”

Posted by on 12/20 at 03:50 PM
I’ll assume that this was the post that Michael said he’d write about the interlibrary loan incident. For sheer symbolic value, I think that this one beats many of the internal spying ones. And consider, what happened to the actual book that the security agents brought with them as an interrogation tool, but wouldn’t leave with the student? Did they keep it? Somehow, I’m guessing not (it’s not evidence) so I’m guessing they returned it to the library. I wonder what the librarians thought? Did they initially refuse to check it in, perhaps, or consider removing it from the catalog once they realized that it was investigation bait, but were perhaps told not to?

All of which leads up to the following poem (I used to hate it when people introduced their poems, then I realized that people don’t read poetry):

Interlibrary loan

It was near Christmas
The call came
“Go to New Bedford”
Borrow trouble, he laughed
Borrow trouble
Their eyes were white when I told them their son
The little book red

On the way back
It sat on the car seat
Red
We’re red guards, I guess
At the return bin
You must take it back I said
Because it reveals

-- Rich Puchalsky, 2005

Posted by on 12/20 at 03:58 PM
It seems that they might actually be able to do this?? Apparently the FISA regulations allow for a critical 72 hour period to do the spying, then go get the secret warrant, if the spying needed to be done because of those mysterious and otherwise ambiguous “exigent circumstances.”

This is true (in my last 72 hours I have practically been memorizing the damn regulations).

Here is the problem. Bush/Cheney did not get the court order in the 72 hours, nor does it seem as though they ever intended to. The provision allows for an emergency where tapping is deemed necessary before a FISA warrant can be obtained (which makes sense, I can understand this). If you listen to talk radio today (and likely for the next week or so) you will hear FISA sections quoted left and right. You will NOT however hear section 1805 (f) (Issuance of orders: Emergency orders) because that is where this 72 hour deadline is mentioned.

Listen for it, it is almost fun to hear them dance around it pretending it is not there.

However what they have tried to do is alter the system from one where the FISA court is involved in all search and wiretapping, eventually to a system where FISA is not involved at all. This slight of hand make it so that now the DOJ wields “supreme executive power” with checks and balances a thing of the past.

My simple argument regarding this to conservatives is “how would you feel about Reno/Clinton holding the power to unilaterally declare anyone a terrorist, and then enjoy incontestable power to do anything at all to them?”. Republicans need to remember that they will not be in power forever, and people who do not agree with their values and ideals will inherit the same power that Bush now wields.

Posted by Mark Earnest on 12/20 at 04:06 PM
Spyder:

Cap. Hill Blue is not really a trustworthy site. Sometimes I wish it were, but it’s just not.

Mark Earnest:

Right. There’s also this approach ("The Second Amendment Has Been Repealed") which is as tendentious as your Reno/Clinton point and I hope as effective.

Posted by on 12/20 at 04:12 PM
Are you sure about that pizza thing? Cuz you could end up with a forced cafeteria ideology pizza (i.e. cajun duck burrito pizza). And that shit just ain’t pizza.

Good point, Rox. I thought long and hard about this, and decided it was ultimately worth the risk. But there’s no way I would trust him to order Chinese food.

Posted by Michael on 12/20 at 04:34 PM
*Now* can we impeach Bush?

I’m afraid not, SneakySnu. There’s still no evidence that he’s violated the key Constitutional prohibition on oral sex in the White House. But it’s good to see the idea bandied about seriously, at long last.

I’m looking forward to your commentary on the judicial take-down of ID in Dover today.

Here’s the short version: yay!

Hope that wasn’t too disappointing.

Posted by Michael on 12/20 at 04:42 PM
anyone who utters such a sentence in 2005 should not be trusted with any task more consequential than ordering pizza

“I ordered pizza. I’ll pick up the tab.”

/* three minutes later */

“Yay! Pizza’s here!”

/* no pizza */

“It’s your fault. You didn’t want the pizza to be here.”

“So, the pizza’s gonna cost $12.50. Your half comes to $8.00.”

“No, I don’t have change for a ten, but I’m good for it.”

“Everyone likes anchovies, right? ‘Cause I ordered extra.”

“Alright, the Chinese food’s here. And you didn’t think it was ever going to arrive.”

“Okay, the sushi cost $29.50 plus delivery charges and tip. Your half comes to $2.7 billion.”

“Your Honor, the reason I answered the door with my penis exposed is because I was testing my secret theory that food delivery guys are promoting the homosexual lifestyle and corrupting our nation’s youth. Our nation’s supple, bronzed, hairless youth.”

Posted by HP on 12/20 at 04:44 PM
Mark,

“how would you feel about Reno/Clinton holding the power to unilaterally declare anyone a terrorist, and then enjoy incontestable power to do anything at all to them?”.

Too bad we can’t ask David Koresh this question.

BTW, it looks like high level Clingon DOJ apparatchiks (Jamie Gorelick, for one) had demanded the same powers that Bush has asserted.

Posted by on 12/20 at 04:48 PM
BTW, it looks like high level Clingon DOJ apparatchiks (Jamie Gorelick, for one) had demanded the same powers that Bush has asserted.

Yes, they did. The difference between me and conservative bloggers and talk show hosts is that I found it reprehensible then and *surprise* find it no less reprehensible now.

And really, conservatives pointing at Clinton’s unconstitutional actions as justification for their own? WTF? Somehow “Clinton did it” does not make me (as a conservative) feel all warm and fuzzy about it.

All I am taking from this is that Democrat and Republican leaders alike are hypocritical and unscrupulous, and I am SHOCKED I tell you.

Posted by Mark Earnest on 12/20 at 04:57 PM
Aside from the issues that you raise here, one of the things that gets me about this whole thing is the fact that this is as clear an indication as you could wish for, short of a outright admission, that the government has been involved in large scale data mining/collection like that proposed by Poindexter in the form of the TIA (Total Information Awareness). Supposedly that was killed right about the same time that Bush signed the first of these orders. It seems clear, given the provisions of the FISA, that what the government was interested in was not by any means a targeted approach. Rather, NSA’s big ears were turned to listen to most, if not all, of the communications traffic (you can find an interesting discussion of the possibilities of this over at Ars Technica). That seems to me the only approach that would justify the obvious political risk that Bush’s voiding of FISA entails (Have you seen the disgusting statements by Cheney about this? He mentions a return to NIxon era presidential power as positive thing! There is no doubt (as if there ever really was) that this is an evil, evil man. Find the article here).

I mention this not because I wish to indulge that conspiricist paranoia at every click on the phone or strange car parked on the street (though there is undoubtedly room for that) but rather because what I think this situation demonstrates, beyond yet more evidence of the basic malignancy of this administration, is a new role/relation of technology to our everyday lives and the panoptic administration thereof. One of the things that needs to be considered here is the intersection of technology and governance this revelation demonstrates. The situation of the student at UMass Dartmouth is another example. According to the library officials there, they had yet to place the ILL request for the Little Red Book. What this all demonstrates is suspicion based not on actual actions but rather one’s fit to a statistical profile not unlike the way credit scores are developed, a process that also depends on huge databases of consumer behavior sufficiently deep to allow the modeling of future tendencies. We now posses, beyond the shadow of a doubt, the technological capability to make P.K. Dick’s worst nightmares a reality (OK, maybe that’s overstating things a little). It seems to me that as we attend to the obvious abuses of civil liberties here we need also to attend to technologies impact on them while reevaluating those concepts like discourse that mediate, in part, between these spheres.

Posted by on 12/20 at 05:08 PM
Michael, when does Mark’s defector celebration end? Or does he have a sort of universal pass for right-wing talking points now? Since this is a new thread, can I now point out that Clinton never did warrentless wiretaps?

Mark, we’ve heard “Democrat and Republican leaders alike are hypocritical and unscrupulous” for a long time now. From Nader. It was calculated to benefit Republicans then, and it’s calculated to benefit Republicans now.

Posted by on 12/20 at 05:13 PM
According to my copy of Mao’s little red book, you can construct a dirty bomb from the radium scratched off of 4 billion watch faces. Its much easier to steal every watch in China than to transport spent fuel rods. Certainly, not as impossible as Lewis Koch makes it sound.

It could happen!

Posted by on 12/20 at 05:16 PM
Mark,

Well of course I’m not happy with the executive accruing any powers that it is not Constitutionally entitled to and that are not necessary for it to do its job. Most right-wingers have a belief that the President is entitled to these surveillance powers in the context of war. That’s basically the point. (War!!!??. Of course. This week the Spanish broke up a 15 man al-Queda ring, the Belgium parliament passed a law, specifically crafted to investigate Islamic terrorists that grants all of the Patriot act’s powers and more, and, lamentably, but predictably, the German government showed its true coward’s face by pardoning a convicted terrorist, bending under pressure because German citizens are being held in Iraq. A month doesn’t go by without some al-Queda connected group being busted in Europe. We are at war.)

The real noteworthy point is that Democrats still continue to insist that what is going on with Bush’s surveillance is something truly exceptional and insidious. I say that if Clinton hadn’t been monitoring al-Queda operatives in this country he was derelict.

I really think that the America left is piqued that they themselves are not the target of the administration’s surveillance; no fury like a leftist ignored. The fact is, the American left is trivial; look at them hyperventilating about impeachment. This is laughable. For the American left it is always somewhere between 1968 and 1974. Oh, to be young.

And let’s talk about real abuse of executive agencies. Nothing alleged to this administration comes close to the fact that the IRS audited the tax returns of all 4 women who maid public complaints about sexual abuse and rape by Bill Clinton. Now, that’s abuse.

Posted by on 12/20 at 05:24 PM
Michael, when does Mark’s defector celebration end?

He gets to finish his bourbon first.

Mark, we’ve heard “Democrat and Republican leaders alike are hypocritical and unscrupulous” for a long time now. From Nader. It was calculated to benefit Republicans then, and it’s calculated to benefit Republicans now.

Quite true! And check it out—it works every time!

HP, I’ll get the tip on that order. It’s the least I can do, now that you’ve made me spew coffee all over my laptop.

Notice that I used the word “spew” without the word “hatred.” Another first for the English language, right here on this blog!

Posted by Michael on 12/20 at 05:26 PM
Is the “strange silence” from the previous comment thread (posts 70,75-77,79) the ultrasonic whistle that commands the administration PR dogs? If so then I don’t hear it per se but I do hear the command obeyed.

Thankfully, I don’t hear the noise machine’s silence on FISA 1805(f) but I can imagine.

Posted by on 12/20 at 05:28 PM
Michael is sometimes as gullible as me and I also got the impression that Ashcroft felt Padilla’s plan constitued a legitimate threat and not the mad ravings of an impotent Osamawannabe.

In case you were wondering.

.

Posted by on 12/20 at 05:29 PM
A month doesn’t go by without some al-Queda connected group being busted in Europe. We are at war.

Yes, we are. All the more reason why we shouldn’t have diverted our attention to Iraq.

The fact is, the American left is trivial; look at them hyperventilating about impeachment. This is laughable.

And I admit this made me laugh out loud. Thank you, you very funny member of the radical right.

Posted by Michael on 12/20 at 05:30 PM
Daniel, I heard that Clinton was supposed to have had a whole list of people murdered also. Maybe you could expand on that.

Posted by on 12/20 at 05:30 PM
Michael, when does Mark’s defector celebration end? Or does he have a sort of universal pass for right-wing talking points now?

Honestly, how many right wing talking points have I thrown out (that I didn’t shoot down)

I’ll stop posting if everyone wants, I was having fun here. There is such a lack of reasonable discourse online anymore.

But for now, to business:

Since this is a new thread, can I now point out that Clinton never did warrentless wiretaps?

Clinton pushed for, and got an amendment added to the Intelligence Authorization Act for Fiscal Year 1999 that authorized warrantless wiretaps. However, you are correct, I do know have any evidence that he used them. The beauty of this kind of thing, and the ugly provisions of the Patriot Act are that we (the regular old citizens) cannot find out if and when they are used since that would violate national security.

Mark, we’ve heard “Democrat and Republican leaders alike are hypocritical and unscrupulous” for a long time now.

Well, I think it’s been true for a long time now. We also have been hearing about global warming for a long time now, that does not mean it is not happening. (mutant topic change, I know. Let’s not debate it, there is irrefutable evidence that it is happening)

It was calculated to benefit Republicans then, and it’s calculated to benefit Republicans now.

I was not aware everything I did had to be calculated for something. I’m not Nader and I’m not Perot. I’m certainly not one any conservative talking points list and I’m not spouting propaganda for the Republicans.

I’m not trying to take political mindshare away from anyone for the benefit of anyone else, I’m just telling it like I see it. I am certainly open to being proven wrong though, as I’m only 27 and possibly don’t know what the hell I’m talking about.

I’m pretty convinced that both party’s actions throughout recent history are indefensible at this point. This should not be taken as justification for what Bush is doing now, just a comment that party swapping is not going to magically fix anything long term. In fact the best fix I can think of at this point is to have a different party controlling Congress than the one controlling the Whitehouse. Take your pick who, I just miss good old politically motivated checks and balances, since the constitutionally defined ones seem to have failed.

Posted by Mark Earnest on 12/20 at 05:34 PM
Mark, in all seriousness, you’re mixing up different kinds of ideas.

First, there is the universal political theory of American liberalism, which goes that no one is inherently trustworthy and that therefore government must be designed with checks and balances and individual rights and so on. Can we just take that one as read? No one is claiming that Democrats are angels rather than people.

Second, there is the fact that we are undergoing a crisis right now—here, today. It is an observable fact that whenever we try to talk about this crisis, those on the right invariably say “But what about Clinton?” Imagine for the sake of argument that Clinton was as bad as anyone says. So what? He’s not in power now.

Third, the next step from the what-about-Clinton people is to say that we have to address what both parties do or things will be just as bad when the Republicans are tossed out. This just isn’t true. An inability to distinguish the lesser of evils does not mean that the difference does not exist.

Finally, it’s useless to say that we have to address what both parties are doing at once. The American political system is set up structurally so that there really can be only two main parties, so unless you can swing a consitutional convention, that’s what we’re stuck with. Saying that both are equally bad only discourages people from participating in the less-bad one. The Republicans funded Nader exactly for this reason.

Posted by on 12/20 at 05:51 PM
The real noteworthy point is that Democrats still continue to insist that what is going on with Bush’s surveillance is something truly exceptional and insidious.

Because it is, two wrong do not make a right.

(hold on, was that a pun?)

I say that if Clinton hadn’t been monitoring al-Queda operatives in this country he was derelict.

And I say if he (or anyone else) has to violate US law, the constitution, and erode the very liberties we are fighting for to do so then this whole America experiment has failed.

And let’s talk about real abuse of executive agencies. Nothing alleged to this administration comes close to the fact that the IRS audited the tax returns of all 4 women who maid public complaints about sexual abuse and rape by Bill Clinton. Now, that’s abuse.

You and I differ on our definitions of real abuse. Were these women held without being charged, without evidence, and without legal representation? If Hillary is elected, guess what, now they can be. Legally. All someone has to do is declare (to nobody, themselves I guess) that they are somehow involved in terrorism. Are you prepared to place absolute trust in the honor and truthfulness of every President to be elected in the future to have Kinglike powers (even if you do trust Bush with them)? I’m not.

He gets to finish his bourbon first.

Knob Creek for me.

You know I just did a search on Knob Creek and learned that not only is it a great Bourbon, it is a public machine gun shooting range. That is gonna hurt any credibility I might have among Liberals…

Yes, we are. All the more reason why we shouldn’t have diverted our attention to Iraq.

Yup, right about there is where Bush lost the wary conservatives he didn’t quite lose with the Patriot Act. Rove figured they could be replaced by mobilizing the voters whose primary issue was gay marriage and it seems to have worked.

Posted by Mark Earnest on 12/20 at 05:55 PM
Mark, in all seriousness, you’re mixing up different kinds of ideas.

I reluctantly see your point. Let’s just chalk me up to being too young and idealistic to agree that the only way to fix the problem is to find the lesser of two evils and try to prop it up. My problem with that is (1) still supporting evil and (2) the other more evil party (by virtue of its evilness) will easily define the argument using non-sensical emotional hyperbole and fracture the party trying to play fair into a leaderless, directionless party.

Unless the democrats do something quite impressive that I cannot think of right now, the only way they are going to capture the country back is to stoop to the level of Republicans (which I freely admit is lower than I thought political discourse could go in this country). I’m not sure I like where that game ends up, but sadly I have no other suggestion.

You are right, the “what about Clinton” argument is totally invalid and brought up entirely too often. I’ve only mentioned when confronted with the argument that this current mess is unprecedented. It is certainly the worst abuse we have seen, but it is the culmination of the eroding of liberty from presidents of both parties. And what scares me to no end is that I cannot imagine this big picture is going to change.

There has to be a source of amusement for you guys though (and a source of disgust for me) that literally the same people who reviled him are now holding him up as a yardstick by which to judge the legality and validity of their actions.

Posted by Mark Earnest on 12/20 at 06:08 PM
A little off topic, but, Eli raises an interesting question about the motivation of the leaker to the NYT here: http://lefti.blogspot.com/2005_12_01_lefti_archive.html#113511532057268245

What’s it say that whoever gave them their info let it sit for a year, without going to someone else? Weird.

Posted by on 12/20 at 06:09 PM
Is the “strange silence” from the previous comment thread (posts 70,75-77,79) the ultrasonic whistle that commands the administration PR dogs? If so then I don’t hear it per se but I do hear the command obeyed.

I’ve been wondering about that silence myself. A very strange silence indeed...one that sounds like a megaphone and smells like a poultry shed. Silence hasn’t been so outgoing since its gabfest with Paul Simon back in ‘63.

But further comments on that thread now suggest that the wink-wink nudge-nudge references are to a troll who’s missing in action. I don’t know who they mean, though I read here fairly regularly. Probably because I usually wear Troll-Filtering Glasses when I cruise the blogs to just screen out that mess.

Posted by on 12/20 at 06:27 PM
I don’t usually do this, so forgive me if it’s inappropriate. But Maryscott O’Connor has cross-posted at Daily Kos an extended excerpt from Milton Mayer’s They Thought They Were Free: The Germans 1933 - 1945. Mayer here is quoting an academic colleague of his, a philologist, who describes the creeping growth of fascism. A tiny snippet:

What happened was the gradual habituation of the people, little by little, to be governed by surprise, to receiving decisions deliberated in secret; to believe that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if people could understand it, it could not be released because of national security.

It goes on for quite a bit more. It’s a long quote, long enough, perhaps, to cut through our usual glib familiarity with the topic. This isn’t anything you don’t know—Germany in the 30s, the rise of Nazism, yadeyade. But sometimes, no matter how well you know a story, it’s arresting to be plunged once again back into the reality of it. As I read the philologist’s tale, I thought of all the academics who post here on MBOL, on pharyngula, on Bitch.... Folks, what are we doing? What can we do?

http://www.dailykos.com/story/2005/12/20/12819/467

Posted by on 12/20 at 07:43 PM
Mark, I’m glad that we agree to that extent.

“My problem with that is (1) still supporting evil and (2) the other more evil party (by virtue of its evilness) will easily define the argument using non-sensical emotional hyperbole and fracture the party trying to play fair into a leaderless, directionless party.”

“Still supporting evil” is an inescapable part of liberal political theory, though—if you assume that no one is trustworthy, everyone is going to be evil to some degree. A degree of acceptance of this as preferable to a more idealistic solution is one of the big differences between liberals and leftists that Michael was joking about earlier. As for playing fair, in no way do I want the Democrats to play fair. And in practice, if the reason that the Democrats return to power is that they make a stir about loss of civil liberties, this will make it more difficult for them to in turn infringe on civil liberties.

It sounds like you’re ready for stage 2: semiotics! Liberals have become accustomed to certain signs, which you can eliminate from your discourse without loss of meaning:

1. “Democrat and Republican parties”

It’s the *Democratic* party. There has actually been a long propaganda effort by Republicans to get people to call it the Democrat party because they think it sounds worse, so “Democrat and Republican” is the sign of a Rush listener.

2. “What about Clinton?”

Already discussed above, but in general, has been so overused defensively as to now mean nothing more than “I am Republican”. Say “What about Johnson?”

3. “Michael Moore”

You know, Michael Moore is one guy. Not elected, not a group leader. Any comparison of him to any sort of group on the right means that you’re not serious.

Lastly, there’s a kind of argument that you’ve made that I see a lot—the “why can’t you stop being elitists and giving people the wrong impression?” thing. Well, I’m not responsible for Republican propaganda, which will happily invent whatever elitism stories it finds necessary even if they don’t exist. But insofar as it’s true that I do write poetry, support gay people and feminist causes, scorn creationism, and so on (and yes the environmentalism bit too, although perhaps not as militant as you meant) I’m not going to give these activities up just to try to impress a few more people who really should have seen what’s up already. No more than you’d be willing to give up your codes and (I’d guess) your guns if people were telling you that you should do so to impress people and gain more votes. There’s no use giving up freedom to gain freedom, right?

Posted by on 12/20 at 07:59 PM
By the way, before anyone thinks I’m making paranoid, hyperbolic comparisons to Nazi Germany, the point of Mayer’s excerpt is the incrementalism of the slide, the uncertainty of knowing when to draw the line. How do reasonable people cope with growing unreasonableness?

Sigh. Things are misconstrued so easily online and I’m always forgetting to put in my caveats. So no, I don’t think we’re living in the Weimar, though there are instructive parallels to be drawn. But I actually agree with Michael that waving the f-word around is counter-productive. ‘Cause everybody knows it can’t happen here.

Posted by on 12/20 at 09:06 PM
OhmyGAWD: drs, you said It can’t happen here! Pardon me if I’ve missed something--probably a lot around these parts--but has St. Zappa been run through the Berubian pop culture mill yet?

http://www.lyricsfind.com/f/frank-zappa/unknown-album/it-can’t-happen-here.php

Posted by on 12/20 at 09:50 PM
The Bill of Rights - including Habeas Corpus and a free press, including separation of powers and checks and balances, and specifically forbidding the suspending of laws without due process - predates the Declaration of Independence, let alone the US constitution.

So if it is a “suicide pact,” then this country was stillborn.

Posted by bellatrys on 12/20 at 11:07 PM
Well, sure, bellatrys, but Clinton did it too.

Posted by Michael on 12/20 at 11:20 PM
Michael:
As far as I know, all of the details of the Padilla case appeared in Major Media as they happened. There was, of course, no analysis, no line-of-reasoning followup, and no contextualization, so everything dissappeared, as usual, into the Administration’s Glory Hole. Makes you wonder just how “Stockholmed” everone was then. And your analysis of your own naivete is exactly what?

Posted by on 12/20 at 11:31 PM
Apropos of all of this, check out the very interesting discussion of Carl Schmitt and the theory behind the Bush wiretaps over at Crooked Timber.

Posted by on 12/21 at 12:32 AM
Off topic, but since no one will ever see it if I comment on an old thread—this is from the Dover decision:

“Science cannot be defined differently for Dover students than it is defined in the scientific community as an affirmative action program, as advocated by Professor Fuller, for a view that has been unable to gain a foothold within the
scientific establishment.”

Predictable, yes. But still, cue Nelson Muntz.

Posted by on 12/21 at 12:47 AM
And your analysis of your own naivete is exactly what?

Something like an admission of human frailty, Bond.

Posted by Michael on 12/21 at 12:48 AM
The Clinton administration, for reasons already enumerated by Mark, showed deep contempt for the Fourth Amendment. Does that make them as bad as the Bush administration? Absolutely not. Does that mean that the Clinton Administration’s actions somehow justify or even explain the Bush Administration’s actions? Of course not. But when historians write this grim chapter of our nation’s story, they will do well to note a bipartisan assult on the Fourth Amendment, with the so-called War on Drugs doing a lot of important brush clearing prior to the current so-called War on Terror.

Yes, wingnuts unfairly criticize Clinton at the drop of a hat. But that doesn’t mean that all criticisms of Clinton can simply be dismissed as rightwing talking points. Clinton benefitted enormously during his presidency from having a perfectly vile set of political enemies. But the enemy of one’s enemy is not necessarily one’s friend.

Posted by on 12/21 at 12:56 AM
"What’s it say that whoever gave them their info let it sit for a year, without going to someone else? Weird.”

It says that whoever it was took an extraordinary risk in disclosing it that couldn’t be repeated; given the context of Bush’s ‘anything I do after 9/11 and the Congressional use of force approval is legal’ approach, the leaker if caught could be put to death for ‘treason’ and we’d probably never know about it.

Posted by on 12/21 at 10:39 AM
Well, sure, bellatrys, but Clinton did it too.

He had extramarital sex, too! (Which, by Bill Buckley’s logic, means he’s objectively pro-poverty, pro-illegitimacy, and pro-homosexuality.)

I think we need to rephrase that old favorite, “If everyone jumped off a cliff, would you do it to?” to go “If Bill Clinton jumped off a cliff...” for these logic-impaired Cons.

Posted by bellatrys on 12/21 at 12:52 PM
I woke up this morning thinking i could hear the most cynical laughter all the way across the country, from some little professorial office at MIT. I am sure it was laughing rather than sobbing, but only those in Cambridge and Roxbury, eating chowders and guggling irish coffees would know. Could it be Chomsky reviewing his Manufacturing Consent, considering a revised edition on how a population can so willingingly come to accept that the only way to save themselves, from the 100% chance of dying in the future, is to insist that they be stripped of all their constitutional rights?

Posted by on 12/21 at 01:10 PM
Those interested in the whole issue of nuclear power and terrorism in the United States might want to check out “Rad Decision”, a new techno-thriller novel about the American nuclear power industry. It is available at no cost on the net. Written by a longtime nuclear engineer, the book provides an entertaining and accurate portrait of a nuclear power plant and how an accident might be handled. “Rad Decision” is at RadDecision.blogspot.com.

“I’d like to see Rad Decision widely read.” - Stewart Brand, founder, The Whole Earch Catalog

http://RadDecision.blogspot.com

Posted by James Aach on 12/21 at 03:02 PM
Would have been nice had you included the entirety of my comment (which was in direct response to a reader’s question)— but really, could Walter Benjamin be bothered with such trifles? There’s a story to tell, after all!

Here, allow me:
Well, my trust is that the legality of the program was considered before it was implemented; that the 45 day reviews showed oversight; that the Congressional briefings showed that the program wasn’t secret; and that the President’s reaction suggests that he feels his on pretty firm legal ground.

Beyond that, I need more info.

Which is to say that I trust in the Bush admin’s good faith and in the process that led up to authorization of the program.

It’s been a while since my last cultural studies seminar, but I seem to remember their being a lot of lipservice given to context.

Of course, there was also a lot of talk about modalities and the like, so maybe there’s an essential tension here in the spaces between text/context that I’m simply not attuned to.

On what days do you teach theory, professor Berube? I’d love to attend your online lectures.

Posted by Jeff G on 12/22 at 12:53 AM
Um, I kinda hate to break the news, Mr. Goldstein, but the context reinforces the citation. When you say “which is to say,” you adduce the previous two paragraphs as support for the credo, “I trust in the Bush admin’s good faith and in the process that led up to authorization of the program.”

On what days do you teach theory, professor Berube? I’d love to attend your online lectures.

It’s so funny that you ask, Mr. Goldstein. As a matter of fact, back in the summer this humble blog used to offer Theory Tuesdays for six or seven thousand daily readers. Those posts can be found here, here, here, here, and here. But be warned—some of those posts are 3000-4000 words or thereabouts. And check out the 111 comments on the Derrida post! Ah, those were happy, carefree times.

I also have a number of posts on British cultural studies and its relation to the work of American critic Tom Frank, if you’re interested.

Which is to say (cough), you really ought to spend a minute or two checking around the blog before asking a question like that. If you want to avoid embarrassing yourself, I mean.

Posted by Michael on 12/22 at 01:29 AM
Which is to say that I trust in the Bush admin’s good faith and in the process that led up to authorization of the program.

All well and good, but we do not have a faith based government, we have one based on a series of checks and balances that has worked suprisingly well for over 200 years (with a couple of mishaps along the way). I’m not prepared (as our President is) to chuck that system in favor of a system where the Executive branch has unchecked and unlimited power as long as they justify it with word “terrorism”

Posted by Mark Earnest on 12/22 at 08:24 AM
You know I just did a search on Knob Creek and learned that not only is it a great Bourbon, it is a public machine gun shooting range. That is gonna hurt any credibility I might have among Liberals…

Well, I’m a generally gun-friendly liberal, and you’re also clearly a Linux enthusiast, so your credibility is safe with me. All I would ask is that you not mix heavy indulgence in the two Knob Creeks.

I’m not prepared (as our President is) to chuck that system in favor of a system where the Executive branch has unchecked and unlimited power as long as they justify it with word “terrorism”

Hey, now! The power is checked, because individual members of government are told about it retroactively and forbidden to comment about it, even to their colleagues. See? Oversight! Just ask Mr. Goldstein, that jackanapes.

the legality of the program was considered before it was implemented

By people who have also expressed the opinion that the commander-in-chief has unlimited power to set aside the law. Reassuring.

that the 45 day reviews showed oversight

By whom, again? That’s an awful lot of careful attention to oversight by people who can’t be bothered to get retroactive warrants from the court explicitly designed for the purpose.

that the Congressional briefings showed that the program wasn’t secret

Right, because telling a few members of Congress after the fact and forbidding them to speak about it to anyone, while classifying everything about it, is not secret, and is a full expression of Congressional oversight powers. They were free to object at any time, to no one! They could demand accountability, from no one! Why, Senator Roberts even undertook a careful review of the existing case law with his faithful hand puppet, Socky!

A more naive person might ask why the FISA court is currently kicking up such a fuss about the matter, seeing as how they were supposedly completely in the loop, but not Goldstein! It’s time for the next talking point from the, uh, “Libertarian” National Committee.

Posted by on 12/22 at 04:29 PM
Well, don’t say I didn’t tell ya so. Spy Agency Mined Vast Data Trove, Officials Report

Posted by on 12/24 at 12:32 AM

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