Bush's executive order allowing some warrantless eavesdropping on those inside the United States ­...­ is based on classified legal opinions...

December 15, 2005 6:31 PM

"The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny." What's the article about? The NSA, and you, if you've ever called internationally or sent email overseas: ...the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, ... (very long, NYT--and the NSA's mission is to spy only on communications abroad)
posted by amberglow (74 comments total)

To my understanding, the NSA has been tracking ALL international calls an emails for quite some time.
posted by Relay at 6:32 PM on December 15, 2005

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., "Can the National Security Agency, the great electronic snooper, spy on the American people?"

"Generally," Mr. Mueller said, "I would say generally, they are not allowed to spy or to gather information on American citizens." President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.
posted by amberglow at 6:33 PM on December 15, 2005

The "international only" restriction from the NSA has slowly been eroded over time. Still, this policy change is big news.

I wonder why the NYT published today, a year late? I'm hopeful that they realized sitting on this story was actively harmful given the Patriot Act debate.
posted by Nelson at 6:39 PM on December 15, 2005

Land of the Free, Home of the Naive
posted by nightchrome at 6:40 PM on December 15, 2005

Strangest of all is that the paper of record manages to almost sound surprised. I thought this was common knowledge -- hell, I knew it and I'm not all that smart or even well-read -- but it's kinda cool the way they can muster a palpable indignation after ignoring this for years. Dubya's star must really be descending.

However, it's nice to know that the Times is carrying on Judith Miller's tradition of penetrating and bold investigative journalism.
posted by cedar at 6:50 PM on December 15, 2005

Reminds me of George Carlin's old CIA recruiting joke:

"Want to work for the CIA? Just pick up the phone! We're already on the line."
posted by Miko at 6:54 PM on December 15, 2005

An unflattering profile of Arthur Ochs Sulzberger, Jr., the chairman of the New York Times Company and publisher of the Times, from the New Yorker... The Inheritance.
posted by R. Mutt at 7:00 PM on December 15, 2005

cedar - It's true, if this story wasn't common knowledge, it at least shouldn't be surprising to anyone. The importance the Times is placing on the story - reporting on it for over a year, holding back information at the request of the Administration - seems out of proportion to what is being reported. Makes me think they learned more interesting or revealing information that they couldn't (or didn't) share.

What's so hard about getting a warrant in cases like these anyway?
posted by thirdparty at 7:07 PM on December 15, 2005

When I lived in Japan, I'd usually throw out a random "I know you're listening" while on the phone with my parents.
posted by ArsncHeart at 7:08 PM on December 15, 2005

I wonder if they can do anything about Skype/Skypeout?
posted by matkline at 7:21 PM on December 15, 2005

'Smith!' screamed the shrewish voice from the telescreen. '6079 Smith W.! Yes, you! Bend lower, please! You can do better than that. You're not trying. Lower, please!
posted by furtive at 7:21 PM on December 15, 2005

I wonder why the NYT published today, a year late? I'm hopeful that they realized sitting on this story was actively harmful given the Patriot Act debate.

Call your senators, there is still hope.
posted by jmgorman at 7:43 PM on December 15, 2005

I am to the point now where I would rather just die from a terrorist attack than live in a world of tyranny.
posted by j-urb at 7:45 PM on December 15, 2005

live free or die :/
posted by rxrfrx at 7:57 PM on December 15, 2005

Jeez, talk about outrage fatigue. I need a long nap.
posted by soyjoy at 8:00 PM on December 15, 2005

So, do OSAMA they monitor OSAMA website activity JIHAD as well? Or OSAMA is it just email?
posted by Civil_Disobedient at 8:07 PM on December 15, 2005

Guys, this is news. NSA was established after WW-II with essentially no judicial oversight, on the pleasure of the Executive branch, in large part because it was only spying on non-Americans. Over time it was deemed OK to spy on Americans as long as they were not in the US. Later, it was deemed OK to spy on things in the US as long as non-Americans were involved and it was communication between a foreign embassy and its home country.

But for the Executive branch to authorize spying on Americans, in America, is unprecedented. It's a major expansion of NSA's mission, a change in category. They are now truly a domestic spy agency. This is news.

Bamford's "Puzzle Palace" is a great history of NSA if you want more.
posted by Nelson at 8:13 PM on December 15, 2005

The terrorists have won.....
posted by photoslob at 8:14 PM on December 15, 2005

ssh

pgp

encrypted VPNs

this is what you need these days, unfortunately.
posted by wakko at 8:21 PM on December 15, 2005

Nelson: Why not 'Body of Secrets'? the later Bamford book on the NSA.

To keep this in perspective, most European countries' internal security organisations can spy on their citizens. It isn't the end of the world. However, it is bad thing and is undoubtedly abused.

It's a pity you Americans have decided to give away your better protected and respected Freedom because one Administration was so good at frightening you. It's happened in other places, Australia included, but it's sad to see you guys give it away too. The rule of law was nice while it lasted.
posted by sien at 8:30 PM on December 15, 2005

" The terrorists have won....."

Sad but true.
posted by Shanachie at 9:17 PM on December 15, 2005

Yawn. NSA line eater. Echelon. NSA patent for automatic topic mining of a corpus of text. Oh, wait, I guess it's news because now the oh-harder-Big Brother! NYT is reporting it whereas before it was just "conspiracy theorists." Sorry, got it.
posted by IshmaelGraves at 9:24 PM on December 15, 2005

It's almost as if....

The president is working with the terrorists.
posted by Balisong at 9:26 PM on December 15, 2005

If some of my phone calls to family bore me, they must really be killing those agents listening in.
posted by vagabond at 9:27 PM on December 15, 2005

The president is working with the terrorists.
I'd say for them.

Oh, wait, I guess it's news because now the oh-harder-Big Brother! NYT is reporting it whereas before it was just "conspiracy theorists." Sorry, got it.
Unfortunately true--there are many things that were/are dismissed until the big media cover it and verify it.
posted by amberglow at 9:39 PM on December 15, 2005

What's so hard about getting a warrant in cases like these anyway?

Indeed. So if it isn't hard to get a warrant, why the hell are they doing this without them?

It is certainly no surprise that the NSA has the technical capability to monitor international communications. ECHELON has done that for decades. What's changed is what the agency is permitted to do. FISC exists to oversee operations like this and ensure they remain within constitutional limits. Basically this is making an end-run around FISC, in a perfect analogy to the end-run the administration is using on terrorist suspects in custody. Even though FISC rubber-stamps almost all warrant requests.

Again, this isn't about their well-known ECHELON operation based on keywords and supposedly even capable of doing keyword flagging through voice recognition. This is about doing taps on specific numbers, without a warrant. The former is permissible in the same way that a police checkpoint is permissible -- everyone gets the same treatment, you could say. The latter is a grave expansion of surveillance.

It's telling that some NSA officials reportedly refused to participate, and that the presiding judge (once on the Microsoft antitrust case; here's a bio) ordered DOJ not to bring warrant requests to the FISC based on this NSA program -- fruit of the poisoned tree is the parlance for evidence which arrives through illegal means, even if indirectly.

So I don't think the NYT is exaggerating anything. (The timing of publication does seem intended to jibe with the PATRIOT Act renewal vote, but the article's gestation doesn't suggest that was a motivating factor.) Would these searches pass Constitutional -- which is to day, Supreme Court -- muster? That seems to be an open question, judging by the CYA approach of the administration.
posted by dhartung at 9:58 PM on December 15, 2005

You shouldn't expect privacy in an insecure medium like email (or phone calls) anyway. Even if the government isn't reading your email, some random hacker easily could.

If you want privacy, use encryption.
posted by aerify at 10:32 PM on December 15, 2005

This is major news. It gives the tin hat crowd legitimacy, the government really is spying on us. Of course, for the tin hat, the reaction is "so whats new", but for the average person it is spooky.
posted by stbalbach at 10:40 PM on December 15, 2005

I've been working under the assumption that the NSA has been reading my emails for quite some time and not just the ones going overseas. Then again, I've got gmail, so google is as well. What strikes me as something of a big deal about this is that a major media organ seems pissed off and that today, when I mentioned this story in my bookshop, everyobdy got pissed off. I mean, yeah it's naive, but at least it's encouraging.
posted by Football Bat at 10:49 PM on December 15, 2005

uhh.. shit... 'everybody'...
posted by Football Bat at 10:50 PM on December 15, 2005

I'm pretty close to a lot of arab/muslims in my community and have a couple of creepy stories of them being spied on.

One family I know had their trash can stolen. Someone came early in the morning on trash day and stole the entire garbage can and replaced it with a new one. The family knew what had happened because they saw that their trash was emptied hours before anyone else's and that they had a new trash can. In our town, you rent your trash can from the disposal company. Each trash can has a 5 digit serial number on it (like: 58302). The serial number on the new trash can is 01234. It's still in their yard to this day. The family shares a last name, but is not related to, the only person to be charged in relation to the 9/11 attacks.

The second story is about two brothers. One works at a big-time tech company and the other is a student at the local university. Both have cell phones registered under the older brother's name. A mutual friend of the group (a white guy) text messaged the younger brother to say "The beserk will be at 4th of July" (or something like that). Soon after, federal agents intruded on the older brother at work, and questioned him about the message. "Is that code for killing jews?" was one of the questions. They also made it clear that they knew everything about him, from his schoolwork to his job and they read off all of the previous text messages that had been sent. I guess they didn't know the phone wasn't even his though.

It turned out "Beserk" was a band that was playing at a 4th of July party.

The sad thing is, we're all trained to believe the CIA/FBI/NSA is super-smart and that they protect us. But at least in these two cases, they seem about as wise as Mr. Bean.
posted by b_thinky at 11:01 PM on December 15, 2005

... the newspaper delayed publication for a year to conduct additional reporting ...

!!!
posted by donpedro at 11:05 PM on December 15, 2005

Ha, the good old emacs spook mode -- always kept update:

C-x spook
Belknap kibo ASO counter terrorism subversive EuroFed airframe nitrate SSL terrorism afsatcom jihad enigma CDMA Jiang Zemin

C-x spook
AGT. AMME arrangements plutonium HAMASMOIS cybercash CDMA NASA class struggle asset USCOI MD5 Manfurov AIMSX AMW bank

Thank you RMS.
posted by NewBornHippy at 3:42 AM on December 16, 2005

Perhaps the strange and mysterious "disconnection" of my phone calls back to the States while I was living in Iceland wasn't because my phone card was cheap, but because I was in the habit of addressing the CIA directly when making references to political matters (i.e. "My thoughts on the Presidential election - and for the members of the CIA just tuning in...").

They must have gotten bored though. Most of the time, I just talk about my hair.
posted by grapefruitmoon at 4:44 AM on December 16, 2005

And what a splendid job of catching terrorists they're doing. Heard anything about the anthrax investigation lately? Oh, my goodness, what a wonderful security state we have.
posted by warbaby at 6:25 AM on December 16, 2005

This is major news. It gives the tin hat crowd legitimacy, the government really is spying on us. Of course, for the tin hat, the reaction is "so whats new", but for the average person it is spooky.

I always heard that the british spyed in the US, just like the NSA spyed in brittan.
posted by delmoi at 7:05 AM on December 16, 2005

What is our government DOING with our tax money? Spying on us?
posted by omidius at 7:17 AM on December 16, 2005

The amazing thing is how little time it took Bush and company to ruin what seemed a very promising country. The US that is. They've ruined a few others along the way I suppose.
posted by Outlawyr at 7:27 AM on December 16, 2005

But for the Executive branch to authorize spying on Americans, in America, is unprecedented.

There was this fellow named Nixon. You might not remember him, because later, he was transformed into an "elder statesman', and what's more boring than that? Anyway, for a while, he was what you'd call a Republican President, and he had all sorts of agencies spying on Americans, for all sorts of reasons. You can look it up.
posted by Kirth Gerson at 7:48 AM on December 16, 2005

delmoi - that's kind of true. NSA decrypts were available to us and we allowed you to use the information taken via GCHQ Cheltenham. The whole concept of ECHELON (iirc) was that individual countries shared the take with each other. Kind of a you-scratch-our-backs and we'll-scratch-yours type affair.
posted by longbaugh at 7:54 AM on December 16, 2005

Suddenly the PATRIOT Act is a good thing, because where was some notion of a judge in the process and oversight was mentioned in passing. The Administration stated repeatedly the PAT Act was needed to protect America.

Well, they have just pushed that aside. I loathe the PAT Act but it suddenly became quaint.
posted by fluffycreature at 8:34 AM on December 16, 2005

To me it is kind of like the frog in the pot of water.

All the recent news has kind of lent credence to some of the conspiracy theories in the last few years. It is proven that the govt. actively manipulated the media by a number of different ways. It is proven that the government spys on it's own citizens. It is true that free political speech is suppressed to some degree (think "free speech zones", limiting access to presidential addresses to those that sign loyalty oaths)... these things are true, we only argue over justification. But the outrage, in general, is not there. because, things get worse in incremental stages. People get use to the level we are at, which allows for it to get a little worse without people getting too bent out of shape. then they get used to that... and so on, until we are cooked.

I, personally, think we where headed down this path prior to 9/11 or Bush, or Clinton. It is something that is pretty systemic. 9/11 just allowed for it to happen a lot quicker.

FROOMB
posted by edgeways at 8:43 AM on December 16, 2005

Freedom isn't free.

Seriously, I wonder if the terroristas understood that their legacy wouldn't so much be 3000 American deaths, but a national mind-fuck where we voluntarily (in most cases) abolish some of the things that make America America. Talk about mission accomplished, those guys undid hundreds of years of history... those guys totally outdid themselves.

It is sort of funny in the context of Bush talking about the terrorists "hating our freedom". If true, they were so fantastically succesfull that you almost have to respect it.
posted by hatchetjack at 8:45 AM on December 16, 2005

I thought in the Clinton years they started scanning emails for keywords that could relate to terrorism?
posted by b_thinky at 8:45 AM on December 16, 2005

edgeways writes "I, personally, think we where headed down this path prior to 9/11 or Bush, or Clinton."

Obvious to anyone paying attention, Clipper wasn't a Bush initiative.
posted by Mitheral at 9:05 AM on December 16, 2005

"It is not overstatement to suggest that this may be the most significant violation of federal surveillance law in the post-Watergate era."

Would people say that is true, or is Schneier being sensationalist?
posted by chunking express at 9:33 AM on December 16, 2005

I wonder if the terroristas understood that their legacy wouldn't so much be 3000 American deaths, but a national mind-fuck where we voluntarily (in most cases) abolish some of the things that make America America.

It's been my impression that the mind-fuck and subsequent eroding eroding of American ideals was the entire goal.
posted by Durhey at 10:11 AM on December 16, 2005

delmoi - that's kind of true. NSA decrypts were available to us and we allowed you to use the information taken via GCHQ Cheltenham.

The facility where British intelligence interfaces with the NSA is located in a Maryland business park a couple miles from NSA headquarters at Fort Meade (I used to work near it).

And -- I shit you not -- a telephone trunk line for international calls runs right through the property.
posted by QuestionableSwami at 1:28 PM on December 16, 2005

Interesting analysis from the Political Animal blog (from chunking express's Schnier link).

Can anyone explain (or point to) the other side's rationalization? How can it be legal?

Some information that administration officials argued could be useful to terrorists has been omitted.

Isn't that the saddest part of the story? Why should a newspaper accede to the threats of the government?
posted by mrgrimm at 2:17 PM on December 16, 2005

The question isn't whether NSA eavesdropping on Americans is legal, it's why it would be illegal. There are very few privacy protections in the US constitution. Unreasonable search and seizure is about all you have, and that protection has been consistently undermined.

The main thing holding NSA back in the US was the executive order specified it was only to work outside the US. The fact that Bush overturned that portion of the NSA rules is huge news. Is it illegal for them to spy in the US? Well, that remains for a court to decide. But time and again the courts have been willing to expand the government's power to conduct surveillance against its citizens.
posted by Nelson at 2:40 PM on December 16, 2005

Because of Nixon's abuse of them, the NSA and other agencies were put on a leash. Now that leash is off. I'd say it's deadly accurate, chunking--not since the 60s and early 70s have we seen such abuse of power.
posted by amberglow at 2:44 PM on December 16, 2005

Amberglow, I don't always agree , but you are right on that one. In fact, Cheney was interviewd last year for a history or discovery channel piece about the presidency, and its associated power. He sateted that he thought that because of Nixon, it had been 'weakened', but was now 'returning to where it should be, with the president wielding much larger power'
posted by das_2099 at 3:35 PM on December 16, 2005

The NSA's leash had nothing to do with Nixon. Are you thinking of the FBI?
posted by Nelson at 3:41 PM on December 16, 2005

"You shouldn't expect privacy in an insecure medium like email (or phone calls) anyway. Even if the government isn't reading your email, some random hacker easily could.

If you want privacy, use encryption."

You shouldn't expect privacy in an insecure location like your home or office anyway. Even if the government isn't rifling through your drawers, some random thief easily could.

If you want privacy, get a moat.
posted by stenseng at 6:02 PM on December 16, 2005

If you want privacy, get a moat.

Well, it certainly would take care of the problem of dog poop on the parking strip.
posted by y2karl at 10:41 PM on December 16, 2005

My dismay with the NYT grows stronger every day. It appears that they may have had this story prior to the 2004 elections and spiked it at the request of the Bush administration. If this had come out prior to the election would it have changed the outcome, would Bush be on permanent brush cutting duty? Perhaps this should go on the front page but I am still in the 24 hr waiting period.
posted by caddis at 7:01 AM on December 17, 2005

Nelson: ...At another point the FBI
demanded complete NSA surveillance of
all Quakers, in the mistaken belief that
the group was shipping food to Vietnam.

Huston plan: Tom Charles Huston, an
aide to H.R. Haldeman, organized a
meeting in June 1970 between Nixon and
his agency chiefs, including the FBI, CIA,
NSA, and Defense Intelligence Agency.
According to the Nixon papers, the
president wanted to collected intelligence
about "revolutionary activism." The
presidential directive that came out of
that meeting ordered the NSA to expand
its surveillance and evaluate "domestic
intelligence."

Peace activists: At the Pentagon's
request, the NSA monitored the
communications of '60s peace activists. ...
posted by amberglow at 9:04 AM on December 17, 2005

I stand corrected. Thank you, amberglow.
posted by Nelson at 10:01 AM on December 17, 2005

Bush's unchecked Executive power v. the Founding principles of the U.S.
posted by homunculus at 10:30 AM on December 17, 2005

In Speech, Bush Says He Ordered Domestic Spying --... Mr. Bush's public confirmation Saturday morning of the existence of one of the country's most secret intelligence programs, which had been known to only a select number of his aides, was a rare moment in the presidency. But he linked it with a forceful assertion of his own authority to act without court approval, making it clear that he planned to resist any effort to infringe on his powers. ... But Mr. Bush did not address the main question directed at him by some members of Congress on Friday: why he felt it necessary to circumvent the system established under current law, which allows the president to seek emergency warrants, in secret, from the court that oversees intelligence operations. His critics said that under that law, the administration could have obtained the same information.
Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Senate Judiciary Committee, said on Friday that "there is no doubt this is inappropriate" and that he would conduct hearings to determine why Mr. Bush took the action. ...
posted by amberglow at 11:02 AM on December 17, 2005

read homunculus' link, everyone: ...The Bush Administration’s position now is almost the opposite of that posture, in that the Administration is expressly claiming that the President does have the right to violate laws of Congress because his executive power is absolute and thus cannot be restricted by anything. And rather than applying this theory of unchecked executive power to a single case (as the Reagan Administration did in Iran-contra), the Bush Administration has arrogated unto itself this monarchical power as a general proposition, applicable to each and every issue which can be said to relate, however generally, to this undeclared "war" against terrorism.

This view of the Presidency – which now exists not just in odious theory but in real, live, breathing form vested in George Bush – is precisely what the monarchy-fearing Founders insisted should never occur and, with the enactment of the U.S. Constitution, would never occur. ...
posted by amberglow at 11:04 AM on December 17, 2005

No, the President is doing exactly what he should be doing, whatever the ACLU may think. Thank you President Bush for doing everything legal to defend our nation. And keep it safe since 9/11.
posted by ParisParamus at 11:29 AM on December 17, 2005

If you want privacy, get a moat.

It certainly keeps the black knight at bay.

I wonder if this would have happened if Bobby Inman was still around....hmmm....
posted by Smedleyman at 11:36 AM on December 17, 2005

from Paris's link: The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I’m the President of the United States.

He's breaking the laws and violating the Constitution--that's why Spector (a Republican) is after him. He's not King, and his power is not absolute. This is certainly a high crime. NO president should be ignoring laws and the Constitution--ever--Democratic or Republican.
posted by amberglow at 11:41 AM on December 17, 2005

list of laws broken by Bush's actions at Wash. Monthly, along with this: ...for a President to order violations of the law meets my criteria for impeachment. This is exactly what got Nixon in trouble: he ordered his subordinates to obstruct justice. To the extent that the two cases differ, the differences make what Bush did worse: after all, it's not as though warrants are hard to get, or the law makes no provision for emergencies. Bush could have followed the law had he wanted to. He chose to set it aside.
And this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached. ...
posted by amberglow at 12:11 PM on December 17, 2005

can you make that HREF a little longer, please?
posted by ParisParamus at 12:16 PM on December 17, 2005

"Thank you President Bush for doing everything legal to defend our nation. And keep it safe since 9/11."

"I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Bush's oath is defend the Constitution, to which you owe everything -- including your safety.

To act unconstitutionally is to violate his oath and negate the document from which his Presidential power derives.

Scoffing at the Constitution should merit the most dire consequences, as a warning to any future would-be tyrant who would seize powers not enumerated to them under the laws of this Republic.

And Paris, if you want to live under dictatorship, go to North Korea. Leave this country.
posted by edverb at 12:20 PM on December 17, 2005

And if the President doesn't have to follow the laws, why have a Patriot Act at all? Why have other branches of government (which incidentally, probably would have given him this power, seeing as it's totally controlled by the GOP)?
posted by amberglow at 12:30 PM on December 17, 2005

Washington Post today: ...The Washington Post, citing an informed U.S. official, reported that the NSA's warrantless monitoring of U.S. subjects began before Bush's order was issued in early 2002 and included electronic and physical surveillance carried out by other military intelligence agencies assigned to the task. ...
posted by amberglow at 12:53 PM on December 17, 2005

on John Bolton's involvement, and that we know at least 10,000 citizens were spied on in 2004-5 alone: "During the confirmation hearings of John Bolton as the U.S. representative to the United Nations, it came to light that the NSA had freely revealed intercepted conversations of U.S. citizens to Bolton while he served at the State Department. . . . More generally, Newsweek reports that from January 2004 to May 2005, the NSA supplied intercepts and names of 10,000 U.S. citizens to policy-makers at many departments, other U.S. intelligence services, and law enforcement agencies."

We still don't know who he was looking at and what information was contained in those intercepts. More importantly, were they legally obtained? In light of the latest revelation, we have another possible explanation why the Bush Administration fought so strenuously to keep those intercepts secret and out of the hearing. Snooping without judicial review is wrong and must be punished.
posted by amberglow at 1:16 PM on December 17, 2005

Ex parte Milligan:

If the President has this awful power, whence does he derive it? He can exercise no authority whatever but that which the Constitution of the country gives him. Our system knows no authority beyond or above the law. We may, therefore, dismiss from our minds every thought of the President's having any prerogative, as representative of the people, or as interpreter of the popular will. He is elected by the people to perform those functions, and those only, which the Constitution of his country, and the laws made pursuant to that Constitution, confer. [...]

If you sanction that doctrine, what is to be the consequence? I do not speak of what is past and gone; but in case of a future war what results will follow from your decision indorsing the Attorney-General's views? They are very obvious. At the instant when the war begins, our whole system of legal government will tumble into ruin, and if we are left in the enjoyment of any privileges at all we will owe it not to the Constitution and laws, but to the mercy or policy of those persons who may then happen to control the organized physical force of the country.

This puts us in a most precarious condition; we must have war often, do what we may to avoid it. The President or the Congress can provoke it, and they can keep it going even after the actual conflict of arms is over. They could make war a chronic condition of the country, and they slavery of the people perpetual. Nay, we are at the mercy of any foreign potentate who may envy us the possession of those liberties which we boast of so much; he can shatter our Constitution without striking a single blow or bringing a gun to bear upon us. A simple declaration of hostilities is more terrible to us than an army with banners. [...]

The Convention when it framed the Constitution, and the people when they adopted it, could have had no thought like that. If they had supposed that it would operate only while perfect peace continued, they certainly would have given us some other rule to go by in time of war; they would not have left us to wander about in a wilderness of anarchy, without a lamp to our feet, or a guide to our path. Another thing proves their actual intent still more strikingly. They required that every man in any kind of public employment, state or national, civil or military, should swear, without reserve or qualification, that he would support the Constitution. Surely our ancestors had too much regard for the moral and religious welfare of their posterity, to impose upon them an oath like that, if they intended and expected it to be broken half the time. [...]

You have heard much, and you will hear more, concerning the natural and inherent right of the government to defend itself without regard to law. This is fallacious. In a despotism the autocrat is unrestricted in the means he may use for the defence of his authority against the opposition of his own subjects or others; and that is what makes him a despot. But in a limited monarchy the prince must confine himself to a legal defence of his government. If he goes beyond that, and commits aggressions on the rights of the people, he breaks the social compact, releases his subjects from all their obligations to him, renders himself liable to be dragged to the block or driven into exile. A violation of law on pretence of saving such a government as ours is not self-preservation, but suicide. [...]

Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

posted by edverb at 11:33 PM on December 17, 2005

This bears repeating--The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism...
posted by amberglow at 11:59 PM on December 17, 2005

And this is the third time they've been caught spying on us--Wash. Post today: Pushing the Limits Of Wartime Powers...Since October, news accounts have disclosed a burgeoning Pentagon campaign for "detecting, identifying and engaging" internal enemies that included a database with information on peace protesters. A debate has roiled over the FBI's use of national security letters to obtain secret access to the personal records of tens of thousands of Americans. And now come revelations of the National Security Agency's interception of telephone calls and e-mails from the United States -- without notice to the federal court that has held jurisdiction over domestic spying since 1978. ...

And they lied to the Senate too: ...Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court. ...
posted by amberglow at 7:51 AM on December 18, 2005

can you make that HREF a little longer, please?
posted by ParisParamus at 3:16 PM EST on December 17 [!]

Because that's the issue here.
posted by jikel_morten at 11:06 AM on December 20, 2005