Monday, May 22, 2006
The Unfortunate Transparency of Law: Why They (Allegedly) Could Not Simply Amend FISA
So, why aren't the Senate Democrats making more of a fuss about the fact that the Attorney General and Michael Hayden determined to ignore FISA on the theory that the President has the constitutional power to violate such statutes? If Hayden's testimony is any indication, there appear to be two reasons:
The question, as I interpret it, is more political than legal. That being said, I suppose there are three basic alternatives:
A) Turn a blind eye, trust the Decider, even at the expense of civil liberties.
B) Say no, sorry. The damage caused by the measures being proposed is disproportionate if compared with the potential harm in the absence of such measures.
C) None of the above. I'll let you give it a try, but after 3 months you have to prove to me that it works and that there's no legal and secure way of obtaining the same good results.
Putting myself in the shoes of those who were briefed, C sounds like the very minimum they should have demanded. If all those democrats failed to push for even this compromise solution, they failed their constituents.
Shame on them.
Tactical advantages have their limits, strategic suicide being one of the more prominent.
We're in the realm of Occam's Razor here, and secrecy is way over-rated, especially when it comes at the expense of competence. The evidence says that the administration's primary reason for secrecy is to facililate manipulating the political situation at any given moment, and that when it is politically advantageous to do so, they will compromise secrecy without hesitation.
A democracy requires informed oversight and accountability, period. The laws are the means by which a democracy is governed, period: the only purpose of the executive brach is to EXECUTE the laws.
Permitting people like Curious George Bush and Dirty Dick Cheney to operate a closet dictatorship is like shooting yourself in the head to cure a headache. All their arguments tell me is something that's been obvious for a long time: that they think that the American people are fools.
These people are criminals and that's ALL that they are. The US government has degenerated into a crime syndicate: what secret will protect us from THEM? Anyone who can look at the last five years and think we are safe and secure is an idiot.
What we need is competence and honesty, not the secrecy and the scams of these crooks.
.. what appears to be the case here: that the very reason a statutory amendment would be detrimental is that it benefits our intelligence operations to have the enemy believe that what our intelligence agencies are doing is unlawful.
I seriously doubt that anybody who knows anything about the methods of intelligence and security agencies would think for a second that their methods can be really limited by statues. Tempered perhaps but never limited.
Besides people involved in terrorism of any kind, especially those who were able to organize and successfully execute anything as hideous as 9/11 attacks must know that they are in the game in which no methods are "unlawful". So to claim that we need to refrain from amending domestic laws to create the impression that our security agencies are free to do anything is highly dubious anyway you look at it.
Forgetting the terrorism for a while. Consider the reality of legal "limitation" on methods of security agencies. Here is where we are.
"Extremism in defense of [insert appropriate verbiage here] is no vice" has always been an overriding principle of all such agencies in all countries including this.
This is especially true when they respond to major perceived threats internal or external. Unsurprisingly security agencies always see major dangers facing their respective countries as this helps their budgets and stature and their ability to act outside the law.
For example of what is considered acceptable under such circumstances consider the FBI attempts to drive MLK to suicide simply because they considered him a major domestic threat. There is little doubt that their methods when dealing these days with "terrorist" or any other suspicious element (Hatfill, Mayfield and all of those other cases that have never seen the light of day) can be equally ruthless. After all we are in a post 9/11 environment where effectiveness not legality is of overriding importance.
Even assuming that Hooverian/Stasi like methods have been suppressed in the present day FBI (wouldn't bet on it!) we have new players out there. The DoD and various allied local agencies under the leadership of local Join Terrorism Task Forces. Most of them, especially DoD tend to be far less constrained by any legal principles than FBI ever was.
The indications are that it is still possible to neutralize people in this country using extra-legal, extra-judicial methods. On a whim of some local FBI, DoD or DHS security operative or their proxies. In the name of pre-emption or pro-activity. Laws, FISA amended or not have nothing to do with that. Neither do courts. Again the overriding principle in our security apparatus remains:
"Extremism in defense of [insert appropriate verbiage here] is no vice"
Certain on the "left" have been speaking for some time on the lapdog nature of the Democrats. The October Resolution in 2002 is a telling example, one which had many Democratic votes, and had people who truly don't like/trust the Bush Administration like Al Franken (Air America) in support.
At some point, this trust -- and we have delegated foreign policy and national security issues to the President too long, too broadly -- was shown to be foolhardy. As to Roberts, he also noted "everyone" thought Iraq had WMDs. I don't take what he says totally on face value.
But, yes, to some degree, the Dems gave too much discretion to the Bush Administration. Many still don't quite get it. This is helped by those who (like Pelosi?) might not be totally comfortable with national security matters, or deep down are not really all too liberal (like Reid).
I seem to remember Bob Graham saying something to the effect of "Hold your horses, I didn't get THAT briefing". And Rockefellar's safeguarded letter still annoys me as I have to wonder if he was uncomfortable regarding the handling of his nation's security and the enfringement on civil liberties why he stopped at just writing a letter and putting it in a safe. This was going on in the leadup to the 2002 midterms and Jay had to have recognized the power building of this presidency but to simply write a letter, I don't get it.
YOU BLODDY WELL AMEND THE LAW. Congress CAN be quiet. Who, aside from the national security community, really had any idea what all was buried within the (if I remember right) 900+ page Patriot Act.
I thought we were a nation of laws, but this is an administration of men. I would be MUCH more comfortable with all this if there were laws to cover and at least a prospect of some judicial and legislative oversight. Plus, that way, the program would produce evidence that could be used legally, rather than being the basis, the first fruit of the poisoned tree, for God knows what sort of extra-constitutional system.
The administration broke the law.
Oversight briefings, while crippled, did occur. Of the few members who were briefed, none is saying they did not know the essential fact that FISA's core requirement was breached.
There is nothing in the Constitution or statute that authorizes eight legislators, meeting in secret with executive branch officials, to set aside or amend the operation of FISA.
Democratic leaders were generally complicit, which goes a long way to explaining their general lack of guts in challenging the illegality of warrantless surveillance now. (Except for Rockefeller's half-hearted letter, we have heard of no contemporaneous dissent.)
Rep. Harman's lame excuse is that she didn't realize it was illegal at the time because she wasn't allowed to consult with legal experts. Puh-leeze. From her official bio:
"Prior to her election to Congress, Harman worked as an attorney, served as special counsel to the Department of Defense and as deputy secretary to the Cabinet in the Carter White House. Harman began her career on Capitol Hill as chief counsel and staff director for the Senate Judiciary Subcommittee on Constitutional Rights."
I abhor the lawless behavior of the President, but there is plenty of blame to go around.
Actually I don't think it is acceptable for a government to act in contravention of its own laws but the more important issue from a security perspective is that the enemy, say some terrorist organisation, is not going to rely on that liberal democracy following its own laws. You cannot manage the perception of the terrorist either by explicitly following or just pretending to follow your own laws. It the latter case it is a secret that is extremely brittle and it will get exposed in the shape of leaks like the USA Today story and the terrorists' direct encounters with those employed in intelligence, military and law enforcement, directly engaged in defending the state. It is therefore of little or no value from a security perspective.
Again, the issue is the compatibility of secret laws (?) with the rule of law (cf. the discussion of Gilmore vs. Gonzalez). The testimony demonstrates some familiarity with reason-of-state arguments ( is Botero taught in military academies?)
Secrecy might also be an attempt to influence the justiciability of a controversy. From Baker v. Carr : "...prominent on the surface of any case held to involve a political question: (1) a TEXTUALLY demonstrable constitutional commitment to a coordinate political department;(2)a lack of JUDICIALLY DISCOVERABLE...standards...", etc.etc. Cf. the well-known aphorism of criminal litigators that their job is easier when there is actually good evidence against a defendant (because they have sth to respond to).
From the standpoint of legal theory, these tactics seem to suggest that the so-called expressive theories of law are, at best, incomplete.
Just some lateral thinking (perhaps too lateral): I have stumbled upon American Lawyer, Inc. & Michael Ravnitzky v. U.S. S.E.C.: (No. 01-1967, Sept. 6, 2002) (ruling that with a few exceptions regarding the agency's FOIA policy and legal interpretations, SEC properly withheld much of its FOIA training manual, exhibits and other attachments...). There, we read the following (emphasis added):
""In so arguing, the SEC impermissibly seeks to withhold 'secret' or 'private' agency law. FOIA requires disclosure of agency instructions or guidelines or substantive or procedural law affecting the public..."
Of course you amend it. Or you leave it as it is, and drop the programme. Look, we're fighting a bunch of terrorists, not the Axis war machine. I'm not going to deny that violent Islamism is a security threat, but for God's sake we're not about to be invaded. Gaining a small, hypothetical tactical advantage over terrorists is not worth throwing away the rule of law, which is precisely what Marty's hypothetical suggests we do. I could bang on about Franklin and stuff like that, but you all know it;s true anyway. The idea that we could as a matter of constitutional doctrine allow a government to blithely ignore duly enacted laws in the name of security is horrific. It could only lead in one direction, and I assume nobody wants to go there. To do so, when the threat is as far from existential as it's possible to be while remaining serious, is beyond all sense.
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