Spies, Lies and Wiretaps

January 29, 2006 6:46 AM

Spies, Lies and Wiretaps Instead of the legal, constitutional and moral justifications for the warrantless spying on Americans, we've received only the familiar mix of political spin, clumsy historical misinformation and a couple of big, dangerous lies...

this is an editorial pointing out the lies given the American public about spying. In addtion some 15 legal scholars here conclude that the Bush "initiative" is clearly illegal and violates the American constitution. Declaring "war powers" simply will not do!

posted by Postroad (47 comments total)

Yet, the Republicans feel this issue will be a winner for them with the voters.
posted by caddis at 6:56 AM on January 29, 2006

They don't feel, they know! Because they are listening.
posted by srboisvert at 7:18 AM on January 29, 2006

Sure it's illegal and un-constitutional, but as long as King George W says it's necessary to defeat teh terrorists, then the Dems are not going to get a lot of traction from swing voters by opposing it.

The problem is not civil rights, per se. That argument tastes too much like squishly liberalism and makes an easy target for right wing radio.

The issue that will give the Dems a foorhold is pointing out that giving the executive branch the power to spy means that they will spy on private and political enemies.... cause you know if no one's looking that's exactly what's gonna happen.

Even if the home schoolers and compound dwellers feel confident in "their man" not doing anything like that,, the fact remains that with these powers the president can do pretty much anything he wants.

The question Dems should pose to the population is "Do you want Hillary Clinton to have these same unfettered powers?"

But the party of no clue isn't likely to become any more politically clever now than when they gave us John Kerry to vote for.
posted by three blind mice at 7:26 AM on January 29, 2006

The New York Review article is co-authored by Kathleen Sullivan who is the current author of the most widely used constitutional law textbook among US law schools. I would believe her analysis over Rove's or Gonzales' anyday.
posted by karson at 7:32 AM on January 29, 2006

The question Dems should pose to the population is "Do you want Hillary Clinton to have these same unfettered powers?"

LOL. Are you a paid republican turfer? Sure the dem's should undermine their own people and associate them with illegal acts. Better yet they should say "Do you want democrats to be caught looking at child porn?"

What they should say is:

Do you want political operatives to eavesdrop on your business secrets?

Do you want to the government to know about all of your personal affairs?

Do you want people in the government to be able to listen to the political strategies of the opposition parties?

Do you trust your government not to abuse these powers - as it has in every single instance in the past when it was granted them?

Do you still want to have some freedoms for the bad guys to hate?
posted by srboisvert at 7:37 AM on January 29, 2006

On NPR the other day, a woman being interviewed said that she trusted GWB to break the law in a benign fashion, because he is a Christian.
posted by rxrfrx at 7:39 AM on January 29, 2006

posted by lobstah at 7:47 AM on January 29, 2006

Um... now can we impeach? Please?
posted by VulcanMike at 7:48 AM on January 29, 2006

rxrfrx writes "a woman being interviewed said that she trusted GWB to break the law in a benign fashion, because he is a Christian."

How do you argue with that point of view?
posted by Mitheral at 8:00 AM on January 29, 2006

we're pretty much fucked, aren't we.
posted by wakko at 8:02 AM on January 29, 2006

yes
posted by caddis at 8:08 AM on January 29, 2006

Nixon got hammered because he used this kind of info for his own political gain; he attacked those on his enemies list. So far Bush has been successful in making the argument that this is being done solely to root out terrorists. You know that such power is too tempting to leave alone, especially for the very politically aggressive types like a Karl Rove. There is some indication that Bolton may have abused some of this. On principle I am opposed to this program, but fighting it on principle alone may not succeed when people are afraid that we will be attacked again and this might in some way lessen those chances. I don't think the people are even ignorant of the possible abuses. I just think they are willing to take the risk. They would rather trust GW than Osama. (What a great and totally unfair GOP political tag line, huh?) To get the voters to change their minds on this will likely require direct evidence of how it is being abused. I have very strong suspicions that it is being abused, but the trick is getting the evidence.
posted by caddis at 8:16 AM on January 29, 2006

Has anybody done a correlation on lack of mathematical skill and support for the war on terra? 'Cos the odds of dying from a terrorist attack must be signficantly lower than from a car crash, eatingat McDonalds, murdered by your spouse, etc.
The current U.S. obsession with terrarism is quite morbid, IMO.
posted by signal at 8:23 AM on January 29, 2006

This will actually sure up the base. Quite frankly there is a severe amount of hypocrisy from liberal, who support drug war tactics, and ignore the fact that the previous administration did the same thing. The last thing I want to hear from anti-liberty citizens, is how this is such a violation of the constitution, because *gasp* it might affect them. Statists all around, arguing about what is propert statism.
posted by Gnostic Novelist at 8:29 AM on January 29, 2006

I'd like to thank Postroad for ending this post with punctuation.
posted by odinsdream at 8:33 AM on January 29, 2006

It's sad that such things as "constitutional rights" are considered "squishy liberalism." You might also consider informing Bob Barr, the former conservative senator from Georgia, who has fought against expansive encroachment into personal civil liberties.

Is it simply a matter of reframing the question into "Big Government wants to know your secrets and enter your home"? Besides, why trust GW that this program is only used to intercept communications of terrorist organizations? This is, after all, the same president that said "a wiretap requires a court order." Apparently, that statement requires a bit of nuance to interpret, and cannot be taken at face value without being misleading. Then, why should we take current Administration explanations of the NSA program at face value?

To expand on a line from the linked NY Times Op-Ed piece, so much of our Constitutional history is based on a fundamental mistrust of government. The very concept of individual rights and limited government enshrined in the Constitutional structure and text of separation of power is that you're NOT supposed to trust bald assertions of power. Deliberative democracy is designed to avoid specifically that. Congress passes bills after public investigation and hearings. Courts publish their opinions, instead of making terse declarations. Administrative agencies of the Executive branch have to open their rulemakings and determinations to public comment and scrutiny. The touchstone of our government's legitimacy flows is the power given by the people--not power OVER the people. The criticism of this program is not part of the "liberal agenda" or a "conservative power-grab": but concern over a central tenant of our system of government.

On preview: I thought this sort of thing was taught in every 4th grade civics class--but maybe, like long division, many of us forget it. Statist? The entire point is that each of us, as part of our responsibilities as a member of a democratic society, must remain vigilent against abuse of power against any of us. If we're not worried about "propert (sic) statism," Gnostic Novelist, let's junk the rest of the inefficient anachronisms of government. Instead of courts and their "due process," criminal justice can be effectively implemented by "Vigilante Flash Mobs of SMS Justice 2.0": judge, jury, and executioner. They'd only go after terrorists, we promise; and with SprintPCS's "fair and flexible" plan, no torture either. Surely, it wouldn't affect ME, and screw everyone else. The "Rule of Law" was a great talking point while it lasted, but "quaint." I, for one, welcome our new...
posted by soda pop at 9:07 AM on January 29, 2006

Since when did "liberals" support drug war tactics? (Since when was the last organization "liberal"?)
posted by lupus_yonderboy at 9:38 AM on January 29, 2006

er, last administration, not organization.
posted by lupus_yonderboy at 9:39 AM on January 29, 2006

Statists all around, arguing about what is propert statism.

*rolls eyes*

Take your libertarian fantasies to another thread, will ya?

George Bush has admitted to repeatedly breaking the law. He is proud of it; he intends to continue doing; he feels breaking the law is his right.

There is nothing more to say.

Every day GWB sits in office, American is in Constitutional crisis.

Welcome to Banana Republic USA.
posted by teece at 9:45 AM on January 29, 2006

I blame this whole thing on the fall of the "Evil Empire."

People in the US used to look at the USSR and decry their lack of freedom.

Then: "The Russians aren't allowed to criticize their government."

Now: "Be careful what you say. You're either with us or you're with the terrorists."

Then: "The Russian government spies on their own citizens."

Now: "We must spy on our citizens because we are in a perpetual war."

You get the idea. I suggest we bring back the Evil Empire to raise the bar a bit in this country.
posted by leftcoastbob at 9:53 AM on January 29, 2006

I suggest we bring back the Evil Empire to raise the bar a bit in this country.

This is more true than most will admit. The collapse of the Soviet Union left a huge void in the American psyche.

We were very used to being the "good guy" to the Soviet "bad guy." Idiots like Bush and cynical, venal bastards like Rove and Gingrich have been cleverly exploiting that hole for a decade and half now.
posted by teece at 10:03 AM on January 29, 2006

Does anyone else find it absurd that this editorial is issued by the same news organization that sat on the frickin' story for a year? Why should anyone listen to the Times on this?

I mean, besides the obvious fact that what was true a year a go remains true now and better late than never yadda yadda yadda
posted by mwhybark at 10:12 AM on January 29, 2006

Sure the dem's should undermine their own people and associate them with illegal acts. Better yet they should say "Do you want democrats to be caught looking at child porn?"

That is exactly what I'm saying srboisvert. Next to Osama bin Laden, Hillary Clinton is the Republican personification of evil. Let Harry Reid ask the question to his Republican opponents "Will you support these Presidential powers when Hillary Clinton has them?"

Let the Christian right consider the question in that context and support for the measure will erode, if not disappear entirely.

In politics one should glady sacrifice a career (especially one as moribiund as Mrs Clinton's) in order to gain a principle.

The Dems need to get in the game. Doing nothing at all is not a strategy.
posted by three blind mice at 10:22 AM on January 29, 2006

Palace Revolt: They were loyal conservatives, and Bush appointees. They fought a quiet battle to rein in the president's power in the war on terror. And they paid a price for it.
posted by homunculus at 10:23 AM on January 29, 2006

mwhybark writes "Does anyone else find it absurd that this editorial is issued by the same news organization that sat on the frickin' story for a year? Why should anyone listen to the Times on this?"

The timing of the release of this story almost singlehandedly killed the PATRIOT act (which, those who were paying attention know, will expire next Friday, Feb 3rd, unless it's re-extended, which is looking less and less likely.) Had the Times released this story a year ago, immediately post 2004's Guns, Gays and God election results, it would've done absolutely nothing.
posted by toxic at 10:29 AM on January 29, 2006

I thought they knew about it pre-election, toxic. (It was released 16 Dec., and I know they sat on it for "more than a year." Yup, Google shows that the Times was debating publishing this story in the Fall on '04, before the 2004 election).

This could have been a campaign issue. Who knows what (if anything) it would have done to the '04 campaign, but it was not the NYTimes place to hold it back.

They have zero credibility with me.

It's probably time for another blogger ethics panel.
posted by teece at 10:36 AM on January 29, 2006

Using Our Fear
posted by homunculus at 10:39 AM on January 29, 2006

Terrorism is the new communism, only better! The wall can't come down, or governments be overthrown, to end it, so it is an open-ended fear inducing unknown. The neoidiots continue to evoke the fear-mongering ideas of a civilization slipping backwards into the Dark Ages. The average idiot ameriKan want's only to be on the "winning" side, that is the side that "nukes them towelhead terrorists". Any discourse, discussion or even reasoning is beyond the miniscule attention span of ignorant mid-western bible worshipers. Besides, it's too much work to try and think for yourself. Their basic self-esteem is so low, they can only cling to religion as their answer. They can't understand much of anything, but it is socially OK to believe the mysteries of Jeseus and the Bible- it's OK to accept what they can't understand, in the case of Christianity. There's no hard work involved, no thinking or reasoning involved, only blind acceptance- that's EASY. They can go back to their Nascar and football games and feel like they are part of the collective, lazy, mindless, dumbass culture of amerika. Thanks, now I fell better....
posted by GreyFoxVT at 10:44 AM on January 29, 2006

toxic: Had the Times released this story a year ago, immediately post 2004's Guns, Gays and God election results, it would've done absolutely nothing.

Err, they sat on the story during the election. If they'd published it then, it quite likely could have thrown the election to Kerry.
posted by scalefree at 10:45 AM on January 29, 2006

toxic: "The timing of the release of this story almost singlehandedly killed the PATRIOT act (which, those who were paying attention know, will expire next Friday, Feb 3rd, unless it's re-extended, which is looking less and less likely.)"

Just a quick heads-up: you do know that only about one in ten sections in the Patriot act even has a sunset provision? Even if nothing was renewed you'd still be saddled with about 90% of it. I urge you to read up on this topic since most Americans seem woefully underinformed on a bundle of laws that was passed with not one senator having read it.
posted by PontifexPrimus at 11:20 AM on January 29, 2006

I still believe that the focus should be, not on the evesdropping per se, but on the fact that the Bush administration has no reservations about "going above the written law" when it's more convenient for them.
posted by uosuaq at 11:26 AM on January 29, 2006

Toxic: One would have thought that the Times' primary role was to report the news, rather than enact political change. They clearly failed at that by waiting until it was the olds.
posted by Sparx at 12:17 PM on January 29, 2006

the Bush administration has no reservations about "going above the written law" when it's more convenient for them.

And justifying it with their "unitary executive" theory.
posted by homunculus at 12:49 PM on January 29, 2006

A Legal Defense of Russell Tice, the Whistleblower who Revealed the President's Authorization of NSA's Warrantless Domestic Wiretapping
posted by homunculus at 12:52 PM on January 29, 2006

Karson -- Don't put too much faith in Kathleen Sullivan. She failed the California bar exam last month. And her book is hardly the leading text on con law (though Tribe's probably is).
posted by esquire at 2:30 PM on January 29, 2006

As I read these comments, I realize how really screwed we really are. Sure Bush probably broke the law. Linda Tripp certainly broke the law when she taped her conversations with Monica Lewinsky but she suffered no ill consequences except comments on her bad looks. It isn't very glamorous or dramatic in the Le Carre sense what she did but this type of machinations pushed events toward impeaching Clinton.
Now mindset that cheered Tripp onward and defended her has at their disposal some of the most powerful technology the world has ever seen for gathering special and general information about anything especially their opponents and anything they see as a threat to their grip on power..
Bushes order may have been in addition to eavesdrop on legitimate suspects designed to cover the gathering of information on their "enemies list"; journalists, movie directors you name it.
I was watching CSPAN as a the head of NSA was accosted by a member of "bush must step down" or something like that and was asked if the NSA had specifically surveiled his organisation> I was shocked when the NSA director obfusticated and issued no firm denial. Maybe it was obfustication by habit not intended to defend illegal activity but it was curious indeed.
Whether Bush's directive was illegal or not, it proves the NSA needs specific and detailed oversight and reporting of its activites to Congress. Even then, a partisan hack in the organization could carry out an admistrations illegal information gathering and that is what they need to look for right now.
I firmly believe that this adminstration has used the NSA and other security apparatus to deal with political opposition and should be held accountable for it.
posted by OXYMORON at 3:34 PM on January 29, 2006

The current U.S. obsession with terrarism is quite morbid, IMO.

what pisses me off the most is all the imbeciles with absolutely no chance of being attacked by terrorists -- people who live in red states and have to drive 50 miles just to get to the nearest fucking wal-mart -- are the ones most afraid of a terrorist attack.

meanwhile, i live 50 miles from New York City and go to work in a defense industry plant every day and haven't worried about a terrorist attack since pretty much 9/12/01.

fucking stupid red states! you know nothing about terrorism!
posted by wakko at 3:38 PM on January 29, 2006

They must be extra patriotic to give up their privacy and civil rights so that blue staters can be protected.
posted by caddis at 4:05 PM on January 29, 2006

That Newsweek story homunculus posted is a must read.


These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.

The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. (Goldsmith confirmed public facts about himself but otherwise declined to comment. Comey also declined to comment.) They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. Their story has been obscured behind legalisms and the veil of secrecy over the White House. But it is a quietly dramatic profile in courage. (For its part the White House denies any internal strife. "The proposition of internal division in our fight against terrorism isn't based in fact," says Lea Anne McBride, a spokeswoman for Vice President Dick Cheney. "This administration is united in its commitment to protect Americans, defeat terrorism and grow democracy.")

posted by digaman at 4:13 PM on January 29, 2006

esquire: Alright, you're right that Sullivan failed the bar; that's what she got for taking it cold. However you don't get to be dean of Stanford law by being an idiot. In addition, she was chosen by the previous author, Gerald Gunther, to maintain his life's work.

Besides, Laurence Tribe, your constitutional scholar of choice signed the editorial too.

My point remains.
posted by karson at 4:51 PM on January 29, 2006

"We're Fucked aren't we?"


Beyond our wildest nightmares.
This slide into fascism has just begun.
Where I live-Florida gated community-
G.W. can do no wrong. Why? Tax cuts. It trumps all
else amongst the wealthy.
Trying to reason with them along the lines of, "what
about your grandchildren" draws a blank stare.
They are interested in their finances and the size of
the estate they are going to leave behind. That's it.
That is how they choose to be measured.
Kind of like the big business viewpoint that
sustained their lifestyle for so long. Until now.
'The bottom line' now. Screw the future.
It has caught up to GM and Ford and it is going to
catch up to us because government is following the
same path.
And why not? Isn't armageddon or something like
that coming? Sheeesh
posted by notreally at 5:08 PM on January 29, 2006

Karson -- that's why I said that Tribe probably is.
posted by esquire at 5:16 PM on January 29, 2006

I love that line about "grow democracy."

Because all the time, you see people forcing things to grow. A-yup.
posted by five fresh fish at 5:48 PM on January 29, 2006

I've been looking at the technical angle of the program & it seems likely that what it does is use direct access (provided by the phone companies) to the switches at the domestic/international demarc points to perform real-time link analysis to the call detail records of numbers dialed by targeted suspects, then adding any number called by those people (& maybe even any number called by the people called by those people) to the target list.

This is what's meant by "a subtly softer trigger" & this is why they had to bypass FISA. There just is no way to get a warrant on the hundreds of people involved in this kind of operation, just from a logisitical standpoint let alone trying to justify them by saying "they know a guy who knows a guy who knows a guy we think is a terrorist".

Ironically, if I'm right the one true thing the Administration's said in all this mess is that when the exact nature of the program is confirmed, it will change the way terrorists act; anyone who gets the idea behind the surveillance program would be much more careful about their calling patterns & look to find ways to defeat it.
posted by scalefree at 7:54 PM on January 29, 2006

There is no way that wiretaping without a court order is constitutional. Nor does it become legitimate if the wiretap order is obtained within three days after the fact. There is no way that national security gobbledygook can be invoked as a reason for spying. 13 distinguished constitutional lawyers sent an open letter to Congress via The NY Review of Books and demonstrated that FISA does not grant executive privilege to invoke national security. Amendment IV of the Constitution does not make exceptions for national security.

If national security is ever at stake, it doesn’t arise merely because an "enemy of the State" is engaged in heretical conversational. Philosopher Sidney Hook once titled one of his books, "Heresy, Yes; Conspiracy, No." In other words, conversation in which one person says to another, "Let’s blow up the White House" is protected speech but detailed planning to do that is not. It is pretty obvious that the government is resolved to clamp down on heresy. watchingpolitics.com
posted by Sidney Gendin at 6:37 AM on January 30, 2006

when the exact nature of the program is confirmed, it will change the way terrorists act

You mean like using code words, voice scramblers, and perhaps -- most sensibly of all -- DSA-encrypted email?
posted by five fresh fish at 8:46 AM on January 30, 2006

Saw this coming since Ollie North.
posted by Smedleyman at 12:25 PM on January 30, 2006