Neo-speak

The next time you hear Mister Bush or someone else from his extended royal court say the word "Islamofacism," think of George Orwell's 1984. In one of my favorite passages, Winston Smith has asked his "friend" Syme how his work on the Newspeak Dictionary is coming.

'The Eleventh Edition is the definitive edition,' [Syme] said. 'We're getting the language into its final shape -- the shape it's going to have when nobody speaks anything else. When we've finished with it, people like you will have to learn it all over again. You think, I dare say, that our chief job is inventing new words. But not a bit of it! We're destroying words -- scores of them, hundreds of them, every day. We're cutting the language down to the bone. The Eleventh Edition won't contain a single word that will become obsolete before the year 2050.'

[…]

'You haven't a real appreciation of Newspeak, Winston,' he said almost sadly. 'Even when you write it you're still thinking in Oldspeak. I've read some of those pieces that you write in The Times occasionally. They're good enough, but they're translations. In your heart you'd prefer to stick to Oldspeak, with all its vagueness and its useless shades of meaning. You don't grasp the beauty of the destruction of words. Do you know that Newspeak is the only language in the world whose vocabulary gets smaller every year?

[…]

'Don't you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it. Every concept that can ever be needed, will be expressed by exactly one word, with its meaning rigidly defined and all its subsidiary meanings rubbed out and forgotten.

Think "with us or against us," "cut and run," "total victory" and the hundreds of other mantras we hear from Bush administration echo chamberlains that deny any subtlety of thought.

Like I always say: Rovewellian!

Power Games: the Coming Constitutional Crisis

The National Security Agency spy scandal may be the seminal event that triggers a showdown among the three branches of government over separation of powers. Under the secret program, Mr. Bush and Attorney General Alberto Gonzales allegedly authorized electronic surveillance of U.S. citizens and other legal residents who are entitled to privacy rights under the Constitution.

As Scott Shane of the New York Times explains:

The program, whose existence was revealed in an article in The New York Times on Dec. 16, has provoked sharp criticism from civil liberties groups, some members of Congress and some former intelligence officials who believe that it circumvents the law governing national security eavesdropping.

But the administration insists that it has acted within the bounds of Mister Bush's executive authority.

President Bush and Attorney General Alberto R. Gonzales have vigorously defended the program as a legal, critical defense against terrorism that has helped prevent attacks in this country. They say Mr. Bush's executive order authorizing the program is constitutional as part of his powers as commander in chief and under the resolution passed by Congress days after the attacks of Sept. 11, 2001. That resolution authorized the use of force against terrorists.

The congressional resolution Shane refers to was the Authorization for Use of Military Force (AUMF) passed by both houses of the legislature on September 18, 2001. That act constituted "specific statutory authorization" under the War Powers Resolution of 1973 for Mr. Bush to take certain actions in what has come to be known as the Global War on Terror. Most notably, he was authorized to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

NSA's domestic surveillance isn't the only questionable activity of the executive branch that the administration has claimed legal authority to conduct under the Constitution and the AUMF.

On December 30, 2005, Dana Priest of The Washington Post reported on the ambitious CIA program Mr. Bush authorized after 9/11.

The broad-based effort, known within the agency by the initials GST, is compartmentalized into dozens of highly classified individual programs, details of which are known mainly to those directly involved.

GST includes programs allowing the CIA to capture al Qaeda suspects with help from foreign intelligence services, to maintain secret prisons abroad, to use interrogation techniques that some lawyers say violate international treaties, and to maintain a fleet of aircraft to move detainees around the globe. Other compartments within GST give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world.

Priest explains that as with the NSA controversy, the administration defends the GST program as being consistent with the authority granted it in the September '01 AUMF.

"Everything is done in the name of self-defense, so they can do anything because nothing is forbidden in the war powers act," said one official who was briefed on the CIA's original cover program and who is skeptical of its legal underpinnings. "It's an amazing legal justification that allows them to do anything," said the official, who like others spoke on the condition of anonymity because of the sensitivity of the issues.

(In backchannel correspondence, Ms. Priest clarified that the anonymous official was referring to the AUMF when used the term "war powers act.")

Ultimately, the administration's claims to "plenary" or "absolute" wartime powers to legitimize anything the executive branch has done in its conduct of the Global War on Terror will rest in the AUMF, and in light of that piece of legislation, the legislative and judiciary branches will have a tough time reigning in Mr. Bush's claims to sweeping authorities as a wartime Commander in Chief.

Coming in Power Games Part II: the dynamics of separations of power in the Global War on Terror.

NSA Probe: Not So Fast

The Justice Department's recently announced investigation on NSA domestic spying is not aimed at probing wrongdoing by the intelligence agency. Instead, as reported by Fox News and other sources, it is aimed at discovering who leaked the existence of a program that may have violated the Fourth Amendment and other individual protections provided for in the Constitution.

The Fourth Amendment affirms:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

#

In other words, the Justice Department is not looking to discover whether an agency of the executive branch violated the law by spying on United States persons whose civil liberties are covered under the FISA laws.

Chapter 36 of U.S. Code defines a "United States person" as…

…a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

Lamentably, public discourse over whether Messrs. Bush and Gonzalez violated the law will likely be drowned out by the noise over who snitched on them.

NSA Investigation: Foxes and Hen Houses

Just heard on MSNBC that the Justice Department will launch an investigation on the NSA spying issue. Here we go again, the foxes investigating the break in of the hen house.

Hopefully, American's will recall that one of the lawyers who reviewed and approved the NSA's activities was none other than current Attorney General Alberto Gonzales.

The Cookie Monsters

If you haven't seen it yet, here's the Associated Press story in the New York Times about the cookies in the NSA web site.

The National Security Agency's Internet site has been placing files on visitors' computers that can track their Web surfing activity despite strict federal rules banning most files of that type.

The files, known as cookies, disappeared after a privacy activist complained and The Associated Press made inquiries this week. Agency officials acknowledged yesterday that they had made a mistake.

Nonetheless, the issue raised questions about privacy at the agency, which is on the defensive over reports of an eavesdropping program.

"Considering the surveillance power the N.S.A. has, cookies are not exactly a major concern," said Ari Schwartz, associate director at the Center for Democracy and Technology, a privacy advocacy group in Washington. "But it does show a general lack of understanding about privacy rules when they are not even following the government's very basic rules for Web privacy."

Until Tuesday, the N.S.A. site created two cookie files that do not expire until 2035.

Don Weber, an agency spokesman, said in a statement yesterday that the use of the so-called persistent cookies resulted from a recent software upgrade.

This begs a pair of questions. If NSA is being careless about features in their software, how careless are they being in all the other aspects of their operations? Moreover, what does it say about government oversight when it takes a privacy advocacy group to catch a secret government agency breaking the law?

But there may be an even more important question. Who's making up the rules?

In a 2003 memorandum, the Office of Management and Budget at the White House prohibited federal agencies from using persistent cookies - those that are not automatically deleted right away - unless there is a "compelling need."

A senior official must sign off on any such use, and an agency that uses them must disclose and detail their use in its privacy policy.

Are rules for use of persistent cookies by federal agencies really being made by the executive branch's Office of Management and Budget? And what senior official has to sign off for their use? Whatever GS-12 happens to be around?

All the President's Lawyers

Peter S. Canelos of The Boston Globe brings us this perspective on Mister Bush's execution of his "war powers."

When President Bush sought to reassure the country that his authorization of spying on Americans without warrants was a reasonable exercise of his power, he emphasized that his orders were always reviewed by the attorney general and the White House counsel.

''Each review is based on a fresh intelligence assessment of terrorist threats to continuity of our government and the threat of catastrophic damage to our homeland," Bush said in his Dec. 17 radio address. ''The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president."

The current occupants of those jobs are Attorney General Alberto Gonzales and White House counsel Harriet E. Miers. Prior to 2005, Gonzales was White House counsel and John Ashcroft was attorney general.

The current dispute over whether the president had the authority to order domestic spying without warrants, despite a law against it, has put new focus on the legal officials who have guided Bush. And the qualifications of Ashcroft, Gonzales, and Miers could become a focus of the upcoming Senate hearings on the spying decision.

Canelos goes on to explain that the three lawyers in question may not be as experienced or qualified as others who served in their positions for previous administrations. But if, as he suggests, the Senate intends to focus on their credentials in the spy hearings, the Senate will be missing the main point.

Since Sept. 11, 2001, Bush's legal advisers have cleared the way for him to hold enemy combatants without trials; eavesdrop on overseas telephone calls and e-mails; place ever-greater numbers of government documents under a veil of secrecy; imprison a US citizen indefinitely on the suspicion of terrorist links; and, according to The Washington Post, operate a secret CIA prison in an Eastern European country.

In each case, the legal official responsible for assessing the extent of Bush's powers was Ashcroft, Gonzales, or Miers.

The problem is not whether Bush's attorneys were qualified to make decisions about the extent of his power. The problem is that they made those decisions in the first place.

Nowhere does the Constitution say "The limits of the President's executive powers shall be determined by the Attorney General and other attorneys from whom the President chooses to take counsel." The Constitution doesn't say anything remotely like that.

The Constitution doesn't mention anything about the powers and duties of an Attorney General, a White House Counsel, or the Justice Department. In fact, it doesn't mention the Attorney General, the White House Counsel, or the Justice Department at all.

It does, however, address judicial powers. Article III states:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

[…]

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority[.]

This is the issue the Senate needs to pursue in its hearings, and bring to the attention of the electorate. How did the judicial power to decide on the Constitution--and laws and treaties arising under it--migrate from the judicial branch of government to the "top legal officials" who work in the executive branch?

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Mister Bush justifying his NSA spying orders on the basis of review of the Attorney General and the White House Counsel amounts to you standing in front of a judge in traffic court and saying, "But my lawyer told me it was okay to drive 150 miles an hour down I-85."

The Haliburton of PTSD?

Is there no end to the lust for money generated by the Iraq war?

I got this e-mail early Tuesday morning.

Dear Fellow Veteran,

It is my privilege to announce the results of the Webb & Associates
Chaplaincy Consulting, operational-combat stress prevention (OCSP) pilot program, implemented with the 2nd Battalion, 11th Marine Regiment, 1st Marine Division from January 2004 to June 2005. These 632 Marines deployed to Iraq for 7 months performing 1200 missions and driving nearly 1,000,000 miles.

An unprecedented 95% reduction in PTSD was achieved.

Really? How did Webb and Associates come up with that number, and how did they determine that it is "unprecedented?"

This represents an ANNUAL savings of $921 Million for all troops currently deployed to Iraq and Afghanistan, considering only VA treatment and compensation costs. These savings will help ensure our obligations to current veterans are maintained. Help us prevent stress in our newest veterans by supporting our OCSP standard.

If we throw tax dollars at Webb and Associates, we'll save VA dollars at the other end?

I don't think so. But Webb and Associates would like me to believe otherwise.

Please click on this link (purposely not included) and register to send a letter to Congressman Duncan Hunter, House Chairman of the Armed Services Committee. Your letter will urge the funding and implementation of the Webb & Associates Operational-Combat Stress Prevention model within the entire U.S. Armed Forces.

As a Veteran myself, you have my sincerest thanks for your generous efforts to support our military service members, past, present and future.

God Bless,
Tom Webb
President
Webb & Associates Chaplaincy Consulting
A Service-Disabled Veteran-Owned Small Business

#

I've sent Tom Webb an e-mail at prayerboss@earthlink.net, the address provided on the Webb and Associates web site.

Dear Tom Webb:

Commander Jeff Huber, U.S. Navy (Retired) here. I too am a disabled veteran, and recently received your e-mail promoting your "chaplaincy" organization and your efforts on behalf of veterans suffering from PTSD.

In the spirit of fairness, let me tell you up front that I strongly suspect you are trying to exploit our returning veterans for monetary gain, and that you found my e-mail address through legally questionable data mining techniques.

I've posted my doubts about your motives and methods here, here and elsewhere.

At your convenience, please send me any materials or references that might allay my concerns about you and your organization, and I will make aggressive efforts to support you, your company, and your past, present, and future activities.

God bless,

Jeff Huber

Big Brother is Blogging

From Jonathan Finer and Doug Struck of the Washington Post Foreign Service:

BAGHDAD -- Retired soldier Bill Roggio was a computer technician living in New Jersey less than two months ago when a Marine officer half a world away made him an offer he couldn't refuse.

Frustrated by the coverage they were receiving from the news media, the Marines invited Roggio, 35, who writes a popular Web log about the military called "The Fourt Rail" to come cover the war from the front lines.

He raised more than $30,000 from his online readers to pay for airfare, technical equipment and body armor. A few weeks later, he was posting dispatches from a remote outpost in western Anbar province, a hotbed of Iraq's insurgency.

"I was disenchanted with the reporting on the war in Iraq and the greater war on terror and felt there was much to the conflict that was missed," Roggio, who is currently stationed with Marines along the Syrian border, wrote in an e-mail response to written questions. "What is often seen as an attempt at balanced reporting results in underreporting of the military's success and strategy and an overemphasis on the strategically minor success of the jihadists or insurgents."

Roggio's arrival in Iraq comes amid what military commanders and analysts say is an increasingly aggressive battle for control over information about the conflict. Scrutiny of what the Pentagon calls information operations heightened late last month, when news reports revealed that the U.S. military was paying Iraqi journalists and news organizations to publish favorable stories written by soldiers, sometimes without disclosing the military's role in producing them.

Need I say more?

Thank You, Jesus!

Somebody in the MSM finally made the point I've been shouting for weeks.

Craig Crawford, of all people, finally piped up on MSNBC that judges who rule in favor of non-enumerated constitutional presidential powers are called "strict constructionists," while those who rule in favor of individual rights are "activist judges" who "legislate from the bench."

And Let's not Forget About Bolton

And oh, by the way, what was this business (courtesy of Talking Points Memo) with John Bolton all about?

The revelation that the National Security Agency was allowed to conduct non-FISA intercepts of American citizens should bring last summer's hearing on John Bolton's nomination to the United Nations back into focus. As Legal times noted in September of this year, "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.

Well, actually, as I read the FISA laws, snooping on non-U.S. persons without judicial review is legal. But I'm thinking that non-U.S. persons weren't the only targets of the unwarranted NSA surveillance, and that Bolton was in on the illegal spying, just like he was a major player in cooking the intelligence on Iraq.

Big Brother's Been Watching

The Snoopgate story has a decades long history; one that seems to repeat itself, as histories often do.

In 1975, a Senate Select Committee held hearings with respect to the National Security Agency and Fourth Amendment Rights. At issue was the subject of "watch lists," which were lists of U.S. citizens the NSA had been authorized during the Nixon administration to target with electronic surveillance without seeking court orders. Thirty years ago, as is the case today, Congress questioned whether "national security" justified unchecked violations of the Bill of Rights on American citizens by the executive branch, especially in light of revelations that Nixon was using "national security" as an excuse to spy on his own political enemies.

#

Committee chairman Senator Frank Church (D, Idaho) opened the hearing with these remarks.

This morning, the committee begins public hearings on the National Security Agency or, as it is more commonly known, the NSA. Actually, the Agency name is unknown to most Americans, either by its acronym or its full name. In contrast to the CIA, one has to search far and wide to find someone who has ever heard of the NSA. This is peculiar, because the National Security Agency is an immense installation. In its task of collecting intelligence by intercepting foreign communications, the NSA employs thousands of people and operates with an enormous budget. Its expansive computer facilities comprise some of the most complex and sophisticated electronic machinery in the world.

Just as the NSA is one of the largest and least known of the intelligence agencies, it is also the most reticent. While it sweeps in messages from around the world, it gives out precious little information about itself. Even the legal basis for the activities of NSA is different from other intelligence agencies. No statute establishes the NSA or defines the permissible scope of its responsibilities. Rather, Executive directives make up the sole "charter" for the Agency. Furthermore, these directives fail to define precisely what constitutes the "technical and intelligence information" which the NSA is authorized to collect. Since its establishment in 1952 as a part of the Defense Department, representatives of the NSA have never appeared before the Senate in a public hearing. Today we will bring the Agency from behind closed doors.

From its inception, as Senator Church's remarks indicate, the NSA existed under the sole authority and regulation of the executive branch of government. Only 23 years into NSA's existence did the Senate bring it under congressional oversight.

#

Vice Chairman Senator Frank Tower (R Texas) expressed his displeasure at the very existence of the '75 NSA hearings.

Mr. Chairman, I shall be brief. From the very beginning, I have opposed the concept of public hearings on the activities of the NSA. That opposition continues, and I should like to briefly focus on the reasons I believe these open hearings represent a serious departure from our heretofore responsible and restrained course in the process of our investigation.

To begin with, this complex and sophisticated electronic capability is the most fragile weapon in our arsenal; and unfortunately, I cannot elaborate on that, because that would not be proper. Public inquiry on NSA, I believe, serves no legitimate legislative purpose, while exposing this vital element of our intelligence capability to unnecessary risk, a risk acknowledged in the chairman's own opening statement.

[…]

Even if the risks were minimal -- and I do not believe they are minimal -- the NSA is the wrong target. The real quarry is not largely mechanical response of military organizations to orders. The real issues of who told them to take actions now alleged to be questionable should be addressed to the policy level. It is more important to know why names were placed on a watch list than to know what the NSA did after being ordered to do so.

Some historic context: at the time of these hearings, Richard Nixon had already resigned to avoid impeachment, and had received a "full and unconditional" pardon from Gerald Ford for any crimes he may have committed while serving as President. So if Nixon had been found to have acted criminally by ordering the NSA to target U.S. citizens, it wouldn't really matter, because he was already off the hook.

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The first official to testify at the hearing was then NSA Director Lt. General Lew Allen, who described the agency's basic authority and function.

Under the authority of the President, the Secretary of Defense has been delegated responsibility for both providing security of U.S. governmental communications and seeking intelligence from foreign electrical communications. Both functions are executed for the Secretary of Defense by the Director, National Security Agency, through a complex national system which includes the NSA as its nucleus. It is appropriate for the Secretary of Defense to have these executive agent responsibilities, since the great majority of the effort to accomplish both of these missions is applied to the support of the military aspects of the national security.

He then gave a brief overview of the history of America's use of signals intelligence.

The United States, as part of its effort to produce foreign intelligence, has intercepted foreign communications, analyzed, and in some cases decoded these communications to produce such foreign intelligence since the Revolutionary War. During the Civil War and World War I these communications were often telegrams sent by wire. In modern times, with the advent of wireless communications, particular emphasis has been placed by the Government on the specialized field of intercepting and analyzing communications transmitted by radio. Since the 1930's, elements of the military establishment have been assigned tasks to obtain intelligence from foreign radio transmissions.

In the months preceding Pearl Harbor and throughout World War II, highly successful accomplishments were made by groups in the Army and the Navy to intercept and analyze Japanese and German coded radio messages. Admiral Nimitz is reported as rating its value in the Pacific to the equivalent of another whole fleet. According to another official report, in the victory in the Battle of Midway, it would have been impossible to have achieved the concentration of forces and the tactical surprise without communications intelligence. A congressional committee in its investigation of Pearl Harbor, stated that the success of communications intelligence "contributed enormously to the defeat of the enemy, greatly shortened the war, and saved many thousands of lives." General George C. Marshall commented that they-- communications intelligence -- had contributed "greatly to the victories and tremendously to the savings of American lives."

Following World War II, the separate military efforts were brought together and the National Security Agency was formed to focus the Government's efforts. The purpose was to maintain and improve this source of intelligence which was considered of vital importance to the national security, to our ability to wage war, and to the conduct foreign affairs.

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General Allen also remarked on the historic congressional legislation and executive orders concerning signal intelligence and establishment of the NSA. In 1933 and 1950, Congress passed acts that outlawed unauthorized disclosure of communications intelligence, and which authorized the President to establish communications intelligence agencies and to classify cryptologic (encoded/decoded) information.

In 1952, President Harry Truman issued a Presidential memorandum that directed the Secretary of Defense to be his executive agent in communications intelligence matters and established the NSA.

1n 1962, according to General Allen, "…a Special Subcommittee on Defense Agencies of the House Armed Services Committee concluded, after examining the circumstances leading to the creation of defense agencies, that the Secretary of Defense had the legal authority to establish the National Security Agency."

Allen then invoked the section of U.S. Code which states that nothing in the law…

…shall limit the constitutional power of the President to take such measures as he deems necessary to protect the nation against actual or potential attack; or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information against foreign intelligence activities.

Thirty years ago, Allen's arguments in favor of a President's authority to conduct secret, unwarranted surveillance of U.S. citizens sounded very much like the ones we're hearing today: the President has constitutional power to do what "he deems necessary" to protect the nation from attack, Congress has passed specific legislation that supports his authority to do it, and even talking about NSA activity in public compromises American security.

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Just above the background noise level is a more important issue. Mister Nixon used his presumptive presidential powers to use national security as an excuse to spy on his domestic political enemies.

Mister Bush is telling the same "national security" story, but what is he really up to?

According to Capitol Hill Blue and other sources, "the Bush Administration has compiled dossiers on more than 10,000 Americans it considers political enemies and uses those files to wage war on those who disagree with its policies."

One can't help but wonder where the information in all those dossiers came from.

Rights of Christmas

Inspired by RJB at Words Have Meaning , here are some Christmas presents the framers of the Constitution left under our tree back in the eighteenth century.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

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If we give these rights up to Mister Bush and his team of neo-con men, does that constitute "regifting?"

Or is it rolling over for a dictator?

Dubya's War on Christmas

From a 2000 Guardian article by way of Blue Jersey:

[Mister Bush] was charged with disorderly conduct in 1966 after stealing a Christmas tree while drunk when he was a Yale student.

Ho, ho, ho!

Great Caesar's Court

In the shadow of NYT's story on the scope of NSA domestic spying is discovery of a memo written in 1984 by Supreme Court nominee Samuel Alito while he served in the Reagan administration.

In the memo, Alito argued that the Attorney General should be immune from prosecution for approving illegal wiretaps. That this memo has come to light in the middle of the Snoopgate fiasco is significant, and perhaps intentional, but it may mask what is really the larger issue.

While nobody was paying a whole lot of attention, Mister Bush was busy filling empty Federal District and Circuit Court benches with Federalist Society judges. Federalists, as a rule, are weak on individual liberties and strong on granting the President powers that Article II of the Constitution doesn't even hint at.

It is no longer outside the realm of credible speculation that we could wake up one day to find that the courts have declared the President to be Absolute Ruler of the United States.

Heck, there's a darn good argument that says they already have.

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And I suppose you've noticed this trend: in the echo chamber, judges who grant extra-constitutional powers to the President are called "strict constructionists." Judges who insist on upholding individual constitutional liberties are "activists."

More Lonesome Whistles

The case of NSA whistle blower Russ Tice is not unique. An October '05 article by Kevin Whitelaw in U.S. News and World Report covered the first annual National Security Blowers Conference.

The nearly 20 current or former officials from the FBI, CIA, Defense Intelligence Agency, and even the supersecret National Security Agency who make up the core of the conference share an unusual distinction: They are all deeply out of favor with their longtime employers.

After speaking up, either internally or publicly, about alleged wrongdoings, many have been pushed out, typically under a cloud of usually unrelated but classified personal allegations. Many are still fighting to preserve their careers or at least their reputations. Most cannot discuss the allegations they are making in detail because the specifics are highly classified. Some even have trouble outlining the alleged violations that ended their own careers. The agencies they work for also refuse to answer questions about the specific cases.

Tice was in attendance, as were FBI whistle blowers John Cole and Sibel Edmonds.

Ironically, the whistle blower at the conference who perhaps had the most to say was the least able to say it.

One of the biggest names of the conference never even uttered a word. Lt. Col. Anthony Shaffer is the military intelligence operative who recently went public with a controversial claim that a year before September 11, his top-secret task force "Able Danger" was able to identify the man who later turned out to be the lead hijacker as being connected to al Qaeda. Shaffer is a veteran of top-secret operations against terrorists, including some in Afghanistan, and several of his DIA colleagues have come out publicly to confirm that they remember Mohamed Atta being identified in 2000 as part of a project that combed through public databases looking for hidden links. But these allegations have been vigorously denied by the Pentagon and the White House, while several members of Congress are investigating. Shaffer was slated to speak but instead sat quietly by as his lawyer, Mark Zaid, spoke for him.

"Tony is not allowed to talk," Zaid said. "He is effectively gagged from talking. He is gagged from talking to Congress."

Indeed, while Shaffer's case is being championed by Republican Rep. Curt Weldon, the Pentagon has prohibited him from speaking further to members of Congress without prior approval. He has already watched the Pentagon revoke his security clearance. Zaid says that the Pentagon cited a series of old, unsubstantiated claims that had been addressed during his routine security screenings earlier in his career. "When he was 15, he took some pens from the U.S. Embassy where he was doing an internship," Zaid said. "This is one of the reasons" Shaffer was given for the revocation. Officials also brought up several newer allegations, including two small claims of unauthorized expenses, as well as an allegation that he accepted an award to which he was not entitled. Zaid says that Shaffer disputes all the allegations and can offer evidence in his defense.

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As we discussed yesterday, Russ Tice has offered to testify before Congress about the NSA Snoopgate scandal. The problem is that in the course of retaliation against him for reporting a suspicious co-worker, a Department of Defense psychologist diagnosed him as a paranoid. Now that he's coming forward about domestic spying, the right wing echo chamber will label him as a disgruntled paranoid, and unless others in the NSA voluntarily corroborate his story, Congress and the mainstream media are not likely to take him seriously.

Given what's already happened to Tice--and others like Shaffer, Cole, and Edmunds--any NSA employee who back's Tice's story will have to be very brave indeed.

Snoopgate: a Lonesome Whistle Blows

Here's an interesting story that hasn't hit the mainstream press yet.

Official Wire reports that Russ Tice, a former National Security Agency analyst has sent two letters to the Chairmen of the House and Senate Intelligence Committees.

Mr. Tice intends to report to Congress probable unlawful and unconstitutional acts conducted while he was an intelligence officer with the National Security Agency (NSA) and with the Defense Intelligence Agency (DIA). These acts involved the Director of the National Security Agency, the Deputies Chief of Staff for Air and Space Operations, and the U.S. Secretary of Defense, and were conducted via very highly sensitive intelligence programs and operations known as Special Access Programs (SAP). SAP programs and operations are more commonly referred to as “black world” programs and operations. Mr. Tice was a technical intelligence specialist dealing almost exclusively with SAP programs and operations at both NSA and DIA.

Mr. Tice stated: “As a Signals Intelligence (SIGINT) officer it is continually drilled into us that the very first law chiseled in the SIGINT equivalent of the Ten Commandments (USSID-18) is that Thou shall not spy on American persons without a court order from FISA. This law is continually drilled into each NSA intelligence officer throughout his or her career. The very people that lead the National Security Agency have violated this holy edict of SIGINT."

[…]

It is with my oath as a US intelligence officer weighing heavy on my mind that I wish to report to congress acts that I believe are unlawful and unconstitutional. The freedom of the American people cannot be protected when our constitutional liberties are ignored and our nation has decayed into a police state.”

This could play large in the Snoopgate scandal, perhaps in a bizarre way. Mr. Tice has a stormy history with his former employer.

In May 2005, FEDERALTIMES ran a story on Tice's departure from the NSA.

Russ Tice, who spent nearly 20 years analyzing intelligence for the Air Force, Navy, Defense Intelligence Agency and NSA, will be fired May 16, said the nonprofit, nonpartisan group Project on Government Oversight. In 2001, Tice, who was then working at DIA, reported his suspicions that a co-worker might have been a Chinese spy, POGO said. Two years later, after Tice had transferred to NSA, an FBI investigation into the DIA co-worker prompted Tice to raise his concerns again.

POGO said that led to a series of retaliatory actions against Tice, such as a psychiatric evaluation that led to his security clearance being revoked. Tice was also assigned to unload furniture from trucks at a warehouse, which led to a back injury, and worked in the NSA motor pool for eight months chauffeuring agency officials and checking fluids, vacuuming and cleaning vehicles. This “unusually abusive retaliation” was an attempt to force Tice to resign, POGO said.

And in another retaliatory action, POGO said, NSA withdrew an award Tice received for his intelligence work during the Iraq war after he lost his security clearance.

Given the Bush administration's track record with whistle blowers, there's every reason to believe that Tice was a victim of unfair and "abusive" retaliation. But just now, there's no way of proving it. What's more, Tice appears to be especially vulnerable to the kind of personal smear campaign this administration has become so well known for.

The Pulse Journal also ran a story on the Tice firing that gave further details on the nature of the retaliatory measures taken against him.

In April 2003, Tice sent an e-mail to the DIA agent handling his suspicions about a co-worker being a Chinese spy. He was prompted to do so by a news report about two FBI agents who were arrested for giving classified information to a Chinese double agent.

"At the time, I sent an e-mail to Mr. James (the person at DIA handling his complaint) questioning the competence of counterintelligence at FBI," Tice wrote in a document submitted to the Inspector General. In the e-mail, he mentioned that he suspected that he was the subject of electronic monitoring.

Shortly after sending the e-mail, an NSA security officer ordered [Tice] to report for "a psychological evaluation" even though he had just gone through one nine months earlier. Tice believes James called NSA to ask them "to go after him" on their behalf.

When Tice called Mr. James to confront him about calling the NSA security official, he told Tice that "there was reason to be concerned" about his suspicion about his former co-worker.

The Defense Department psychologist concluded that Tice suffered from psychotic paranoia, according to Tice. "He did this even though he admitted that I did not show any of the normal indications of someone suffering from paranoia," Tice wrote in a statement to the inspector general.

For the time being, I'm perfectly willing to take Tice's story at face value. The notion of this administration using an ordered psychological investigation to discredit a whistle blower carries merit. Unfortunately, the very fact of a DOD psychologist diagnosing Tice as a psychotic paranoid damages his credibility. Congressional leaders and the mainstream press will likely balk at giving his claims credence unless a number of other NSA officials come forward to confirm his story.

And given the history of what's happened to whistle blowers during the Bush administration's tenure, how likely is that to happen?

Dick Cheney: Be Very Afraid

According to the New York Times, domestic wiretaps are justified because they strengthen the office of the President.

Talking with reporters on Air Force Two as he flew from Pakistan to Oman, Mr. Cheney spoke in far broader terms about the effort to expand the powers of the executive than President Bush did on Monday during an hourlong news conference.

"I believe in a strong, robust executive authority, and I think that the world we live in demands it," said Mr. Cheney, who was in many ways the intellectual instigator of the rapid expansion of presidential authority as soon as Mr. Bush took office.

Imagine that. Mister Bush is a baby step away from being a supreme dictator, and Mister Cheney wants to expand his authority.

Mr. Cheney directly linked the effort to bolster the president's wartime authority to the nation's safety since the Sept. 11, 2001, attacks.
"You know," he said, "it's not an accident that we haven't been hit in four years."

No, it's not an accident. We haven't been hit in four years because al Qaeda leadership knows that to hit us would be the worst possible strategic mistake it could make. Those guys are a lot smarter than to do something that would get America all riled up and lined up behind Mister Bush again.

After Americans watched the Homeland Security apparatus fail miserably during Katrina, does Cheney honestly expect us to believe that Mister Bush is the one who's keeping us safe?

After expressing respect for the powers of Congress, Mr. Cheney told reporters, "But I do believe that especially in the day and age we live in, the nature of the threats we face, the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

Needs to have his constitutional powers unimpaired. Do you think Cheney's ever read the Constitution? Here's what article II section 2 cites as the President's constitutional powers:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

That's all, folks. Any other claims of "constitutional presidential powers" are just that: claims.

"Watergate and a lot of the things around Watergate and Vietnam both during the 70's served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Mr. Cheney said.

Watergate and Vietnam served to illustrate why we needed to erode the President's authority--erode it back to what the Constitution allows.

Domestic Spying: Great Caesar's Ghost!

Whether or not Presidents Carter and Clinton violated the FISA act on their watches is, at the end of the day, irrelevant. Two wrongs don't make a right, nor do three ,or four, or a thousand. All that really matters right now is whether Mister Bush committed a wrong, and determining that will take smashing the mirrors and clearing the smoke.

Mister Bush committed a wrong if he authorized non-court approved surveillance on U.S. persons in violation of the FISA law, which resides in a series of subsections of U.S. Code. In working our way through that maze, we may as well start at the beginning.

Subsection 1801 defines a number of descriptions of groups, individuals and activities including "foreign power," "agent of a foreign power," "international terrorism," "sabotage" and "electronic surveillance."

But the most important definition in this section is the one that describes a "United States person," which states:

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

It's a fair assumption that the plain English abstraction of this legalese is that if you're a citizen or legal resident of the United States, you're a United States person.

Let's move ahead to Subsection 1802, which authorizes electronic surveillance without court order under certain conditions. It says that…

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

[Among other things]

…there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party[.]

This appears to protect any United States person from unwarranted surveillance.

The last part of this subsection says:

Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

This seems to be quintuple negative lawyer speak that says the courts don't have jurisdiction over electronic surveillance unless there's a United States person who "may be" involved.

Let's skip ahead now to Subsection 1181, "Authorization during time of war," which in its entirety reads:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

One can reasonably assume this means that the prohibition from electronically spying on U.S. persons is waived fifteen days from a Congressional declaration of war.

Did the congressional Authorizations for Use of Military Force (AUMFs) of September 2001 and September 2002 constitute declarations of war by virtue of "specific statutory authority?"

Lamentably, they probably did.

So unless Congress and its lawyers can prove beyond doubt that electronic surveillance was targeted against non-U.S. persons outside of the 15-day window that the FISA act describes, Messrs. Bush and Gonzalez will skate away from this scandal on the thin ice of a new day.

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I'm watching MSNBC's Mrs. FED Chairman interview Joe Biden on this issue. Neither of them seem to have a clue about the real legal and constitutional issues on this subject.

As Perry White, Superman's boss on the Daily Planet used to say:

"Great Caesar's ghost!"

More on FISA

Stirling Newberry has a good piece on the FISA issue at bopnews. He's included a few things we haven't discussed at P&S.

Wartime Fisa

Here's another close-in defense weapon the administration will likely use in the NSA argument. From subsection 1811:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

Does the "specific statutory authorization" in the AUMF constitute a "declaration of war by the Congress?"

Dollars to donuts, when push comes to biff, Gonzales will argue that it did.

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This clause, by the way, is the first instance I've found of a specific power granted to the President by Congress in a time of "declared war."

Whether this piece of legislature is constitutional is another question.

United States Persons

My bad. It was on the previous page.

Subsection 1810 defines "United States person."

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

That's a little clearer, anyway.

Smoke, Mirrors and FISA

It looks to me like the NYT is getting caught up in a smoke, mirrors, and noise gambit.

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

I didn't see anything if subchapter 1802 that cleared unwarranted surveillance if one end of a phone conversation is outside the United States. That "allowance" appears to have sprung solely from within the executive branch, in which case, Messrs. Bush and Gonzales seem to have, indeed, been making up their own laws.

P&S will continue to search for something in FISA that mentions a "one foot out of the water" clause.

FISA and "United States Persons"

We've been getting more FISA talk on the cable news channels this morning. To review the bidding, at question is the FISA subchapter titled "Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court[.]"

The mainstream media discussion has centered on who, exactly, was targeted by the non-court approved phone intercepts. The pertinent parts of this FISA subchapter appear to be:

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

(A) the electronic surveillance is solely directed at—

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

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

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party[.] (Emphasis added.)

The main point seems to be whether or not the unwarranted intercepts were conducted with "no substantial liklihood" that a "United States person" was involved.

Next question: what is a "United States person?"

The answer seems to lie somewhere in section 1 of the Fourteenth Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's probably safe to say that if you're a citizen, you're a "United States person." I'm not certain yet whether legal aliens qualify.

More on that as information surfaces.

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Here's the final sub-sub-sub paragraph of this subchapter of FISA:

Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

See what you think, but this appears to me to be double/triple/quadruple negative language that says the Attorney General needs a warrant to conduct electronic surveillance on a United States person.

Whatever kind of person that is, exactly.

The Next Snoopgate Layer of Defense

Based on a tip from a little birdie: here's one of the things I suspect Messrs. Bush and Gonzales have in their back pockets as a close-in layer of defense in Snoopgate fiasco: Section 1802, Subchapter I, Chapter 36, Title 50 of U.S. Code: Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court[.]

(a)

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

(A) the electronic surveillance is solely directed at—

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

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

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

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—

(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or

(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—

(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and

(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.

The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

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This is a classic wiggle room piece of legislation. At issue will no doubt become what constitutes a "United States person," and…

…the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

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I'm listening to Carl Levin lambast Bush and Gonzalez on MSNBC with Mrs. FED Chairman right now. I hope his staff has alerted him to this U.S. Code landmine.

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Mrs. FED Chairman is talking to Senator John Cornyn now, and he's steering the conversation back to the U.S. Code Law shown above.

LOOK OUT!

Hooray for Newsweek

Newsweek's Jonathan Alter:

The president was so desperate to kill The New York Times’ eavesdropping story, he summoned the paper’s editor and publisher to the Oval Office. But it wasn’t just out of concern about national security.

[…]

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that “the fact that we are discussing this program is helping the enemy.” But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a “shameful act,” it was the work of a patriot inside the government who was trying to stop a presidential power grab.

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law.

WaPo Abets the Noise Machine

Once again, the mainstream media is acting as a wall in the neoconservative echo chamber. The Washington Post has given column space to William Kristol, founder of the Project for the New American Century (PNAC) and key architect of the policy to invade Iraq.

In "Vital Presidential Power," Kristol, along with Gary Schmitt, another PNAC member, have written the kind of article one typically finds in Kristol's Weekly Standard. It's a compendium of glittering, misleading assertions supported by little if any factual information that supports the illusory notion of extraordinary presidential powers. Among the most outrageous example is this:

…the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.

Kristol and Schmitt support this bold declaration in typical neocon fashion; they don't bother to. They simply make these sorts of statements and assume that "enough of the people enough of the time" won't bother to challenge them.

In fact, the Constitution itself says nothing whatsoever about granting "extralegal" national security powers to the executive.

What's more, it's mighty darn hard to find anything indicating any framer went on record in favor of extralegal powers for anybody.

Just for fun, I went to Yale Law School'sThe Federalist Papers site and searched "extralegal."

No returns.

One on the strongest statements written on presidential war powers appears in Alexander Hamilton's "Federalist Paper No. 74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive _From the New York Packet."

THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.'' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

But not even Hamilton, arguably one of the most aggressive proponents among the founding fathers for a strong executive, states that a President should have "extralegal" powers.

Where do you think Kristol and Schmitt got the idea that the Founders intended a President to have them.

Do you think they just made that up?

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American's are hearing a lot of this "presidential powers" from neoconservative circles these days. Descriptions like "plenary" and "absolute" abound.

But I don't see words like that in the Constitution, or in any of the Federalist papers.

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We discuss the issue of presidential war powers at length at the ePluribus Journal. Early on, I wrote that, "…The notion of sweeping presidential authority in time of war is almost entirely illusory."

If you haven't read the article, I encourage you to do so. You may come to different conclusions from mine, but I can promise you this: everything we used to support that argument was documented in the article itself, fact checked by both myself and a team of experienced fact checkers, and critiqued by an attorney familiar with constitutional law.

We may have gotten something completely wrong, but if we did, it wasn't for lack of extreme effort at keeping our ducks in a row; a level of effort you'll seldom if ever find at The Weekly Standard. From every article I've read in that periodical, I'm of the firm opinion that when it comes to journalistic integrity, The Weekly Standard has no standards at all. And with "Vital Presidential Power," Kristol and Schmitt have exported the Standard's lack of standards to the Washington Post, and the Post, supposedly a real newspaper, let them get away with it.

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THE MAKE JEFF EAT HIS HAT CHALLENGE:

If anyone can find anything that supports Kristol and Schmitt's contention that the founding fathers intended the President to have extralegal powers, boy, please let me know and I'll have a plate of crow pie for lunch.

Mind you now, I'm not talking about something from case law, or another quote from another pundit.

I mean a direct quote from Madison, Jefferson, Jay, Hamilton, Adams etc. that anyone would reasonably agree supports what Kristol and Schmitt said.

Semi-hard Evidence

A quick snippet by way of DKos. You know where to find Kos, so I won't bother with a hand salute link.

It appears, as evidenced by this handwritten memo to Dick Cheney, that Jay Rockefeller was concerned about Bush's NSA shenanigans since back in summer of '03.

Stormy Monday: Dubya Rex

Happy Monday, all!

The folks over at ePluribis worked over the weekend to get "Smoke, Mirrors and War Powers" up and running.

It covers a lot of ground previously discussed here, and puts war powers and division of powers among the three branches of government in the context of the recent revelations about Mister Bush's NSA shenanigans.

Hope you get something out of it!

Jeff

Hail Dubya!

Bush Coping Mechanisms

I'm going to have to learn to live with Mister Bush. He's not going away, and I can't let my head explode every time I hear him talk because that's bad for my health. So I need to accept the ludicrous reality known as the president of the United States and get on with my life.

For starters, I better get used to the idea that he's going to skate away from the NSA spying fiasco, because he is. We've thought he'd painted himself in a corner before, but the guy always manages to dance out of it. He's got more lives than ten litters of kittens.

As Think Progress points out, in yesterday's speech, Mister Bush said that his warrantless domestic wiretaps were personally approved by Alberto Gonzales. So they had to be okay, right?

Now, you and me, if we decided to sneak break into a stranger's house and look at all his stuff, and got caught, we'd be in big trouble. Can you imagine what would happen to you and me if we stood in front of a judge and told him it was legal for us to break into the house because our lawyer told us it was okay?

But that's talking about you and me. We're not the commander-in-chief. Mister Bush is. Because the Constitution says so.

Keep in mind, now, Article II of the Constitution says Mister Bush is commander-in-chief of the military, not of the whole country. When America is at war--formally declared by Congress or not--the rest of us don't turn into semi-soldiers and sailors. We're still just plain old citizens. We don't have to salute the guy, or even stand at attention when he comes on TV.

And nothing in the Constitution says being commander-in-chief makes it okay for a President to break the law in wartime or peacetime.

But Alberto Gonzales seems to think it does. That's what he says. And he's the head lawyer for the commander-in-chief, so whatever he says goes.

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But we don't have to take just 'Berto's word for it. Congress says it's okay for Mister Bush to break the law if he thinks he has to. It's all in the September 18, 2001 Authorization for Use of Military Force.

…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Of course, defeatists, cut-and-runners, and the media might say that "all necessary and appropriate force" doesn't include breaking the law.

But they're not 'Berto, so what they say doesn't count.

And as 'Berto pointed out this morning on MSNBC, in the case of Hamdi v. Rumsfeld, the Supreme Court upheld Mister Bush's authority to hold U.S. citizens without trial.

Heck, compared to locking away any American he wants at the snap of his fingers, what's a little domestic spying?

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Mister Bush is making his own law. He's not even trying to hide it anymore. Whoever snitched on him will likely get nailed on some cockamamie espionage charge.

But Mister Bush won't be punished for anything. The American people elected him President of the United States, and 'Berto, Congress, and the courts made him Absolute Emperor of the Entire Known Universe. And there's not much any of us can do about it.

That's mighty hard for me to take, but I'm going to have to get used to it.

Sunday Night Speech Predicitons...

Coming at you at 9pm tonight.

9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11... 9/11...

Spread of Democracy...

Freedom loving peoples....

Commander in chief.

Solemn duty.

War powers.

Patriot Act.

AUMF.

Constitution.

Oath.

Congressional approval.

Rule of law.

Terror.

Hatred.

Evil.

Sending wrong messages to Iraq/the troops/the world/our allies/the evil ones...

I'm responsible, but it's really everyone else's fault.

Islamo-discombobulists.

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You know. The standard menu at the Rove Cafe.

Veterans Bleeding on the Inside

Over at the ePluribus Media Community site, star contributor ilona has written a series of important pieces on war veterans suffering from Post Traumatic Stress Disorder (PTSD).

The first, "16,000+ Returning Combat Vets Need Our Help," gives us an eye-opening look at statistics that reveal the mental health toll of our Global War on Terror.

"Take That, PTSD! Rep. Lane Evans Rocks" documents the brave efforts of Illinois Congressman Lane Evans to help vets affected by PTSD.

In "Doonesbury this Week: One Vet's PTSD Struggle," ilona covers Pulitzer Prize winner Garry Trudeau's laudable efforts at supporting and explaining one soldier's recovery from this occupational disease of war.

You may also want to look at the PTSD section in the ePluribus Timelines feature. The linked stories posted there are utterly heartbreaking.

Anything He Does is Legal

Hope you're enjoying the show over the weekend. I've been working on a piece for ePluribus about war powers that happened to collide with real news, so I've been busy.

In his "live radio address on television," Mister Bush hit the three big justifications for the NSA spying that I expected to hear:

-- I'm the commander in chief.

-- I've got the Patriot Act.

-- I've got the AUMF.

So anything I do is legal.

Expect to hear a lot more of this in days to come.

Weekend Update

More to come Monday on the NSA and Patriot Act business. In the meantime, here's what happens at the Miramar Chiefs' Club.


The next thing Jack knows, he's at the Miramar Chiefs' Club, sitting on the bar stool next to Chief Snockerd's. Chief Snockerd has an old score to settle. Jack drank him under the table on liberty in the Philippines six years ago, and Chief Snockerd is out for revenge.

Chief Snockerd, he's a talkative guy. Gets a few beers in him and you better strap on your laugh belt, because once he gets going, there's no stopping him. His eyes bulge, and his knee starts shaking, and he starts tugging at the knot of a tie that's not really there. Jack and Chief Snockerd start talking about great chief petty officers of the Navy they have known, and Chief Kirk's name comes up.

"I worked with him on Connie," Jack says.

"I've known him since he was just a sty in his father's eye," Chief Snockerd says. "We went to boot camp together. A great guy, Chief Kirk. Ran into him about a year ago, right here."

Seems after Connie got back from NORPAC, Chief Kirk shows up at this very Chiefs' Club, wearing the flight jacket he wasn't supposed to have and smoking the pipe he shouldn't have brought with him, because they won't let him in the Chiefs' Club with the thing going like a class alpha fire.

Which was total bullshit, as far as Chief Snockerd was concerned. Chief Kirk's been at sea for the last twenty years, he doesn’t know anything about this politically correct "no pipe smoking in the club" bullshit.

But Chief Kirk's okay about it. He goes out on the back balcony, figures nobody will mind if he smokes out there.

Brother, has he been out to sea too long.

Forty feet away from where he's smoking his pipe is this table full of stiffs, hanging half out of their chairs, like they're waiting for some nice Roman boy to come along and nail them back up.

This old battle-axe with them--some crack officer's wife, out slumming at the Chiefs' Club, looking for somebody who wants to mingle the brains out a hoi polloi--she gets a whiff of Chief Kirk's pipe, and her nose starts twitching like a rabbit's, and her mouth starts moving like a carp's:

"Young man. Young man. Young man."

Chief Kirk goes over to the far, far corner of the deck and sits by himself: just a boy and his pipe. "Fuck 'em if they can't take a smoke," he says.

This hot babe who tends bar at the Miramar Chiefs' Club could have made her living working at the Officers' Club, except she was too classy. But not too, too, classy, you know? That type. Actually, she only works at the Chiefs' Club because the chiefs tip better than the officers do.

Anyway, she gets a whiff of Chief Kirk's pipe smoke wafting through the window, and something primal stirs in her. She throws her apron on the bar and goes out back to see if she can sniff out some pipe.

Chief Kirk sees her coming a mile away. Well, parts of her he sees from a mile away. Some parts of her are closer than a mile away. This broad, she's got parts galore. Good parts, great parts, incredible parts. But Chief Kirk, he's mostly interested in the first two parties of the rest of the parts, if you know what I mean.

He sees her walking his way, figures he's about to catch a pitcher of shit about his pipe. But that's not what happens.

This bar babe, she walks up to him, she says, "Hey, Chief, nice pipe. Mind if I join you?"

"Not at all, ma'am." Chief Kirk says. Nice boy, Chief Kirk. Has a nice set of manners on him. Plays a nice straight man too.

The bar babe says, "Ooh, did you carve that pipe all by yourself?"

"Yes, ma'am, with my trusty knife." Chief Kirk whips out his knife and shows it to her.

"Ooh," she says again, admiring the knife. "Is that scrimshaw on the handle?"

"Yes, ma'am. Made out of whale bone."

"I like bone," she says. "Whale or otherwise. Whale bone's nice."

"Well," Chief Kirk says, "it took me a year to carve this mermaid on the pipe."

"That's a nice mermaid you got there," she says. "I bet she keeps you good company on those cold nights in the North Atlantic, while you're trying to run away from all those U-Boats. I bet you have to be careful not to catch a torpedo in the shower stall."

"The mermaid's okay," Chief Kirk says. "This was my first try at carving a pipe. It's a little rough."

"I like it a little rough," she says. "Is this your first pipe ever?"

"No," he says. "My dad gave me my first pipe."

"Small world," she says. "Me too! That's how I got hooked on pipe. I come from a long line of pipe. My great, great, great grandfather was Sir Walter Raleigh."

"You don't say?"

"Oh yeah," she says. "Women in my family have been pipe aficionados for years. It's a tradition. All the girls get their first pipe from their fathers. Either that, or their uncles."

Chief Kirk's not sure what to make of that last remark.

"Looks like you take good care of that pipe," she says. "Do you keep it in your pocket when you're not smoking it, or do you shove it in a box every chance you get?"

Something starts to flicker in Chief Kirk's lighthouse. "So you like pipe?" he says.

"Like pipe?" she says. "I love pipe. I adore pipe. I can't live without it. A night without pipe is like a day without sunshine."

"Tell you what then," he says, "how soon can you get off?"

"Are you kidding?" she says. "I just got off ten minutes ago, and I'm ready to do it again. Let's go!"

I tell you, she could take a pipe all right. Very experienced. Suck pipe, blow pipe, lay pipe, thread pipe. She knew the whole repertory. A regular Sarah Bernhardt of pipe, she was.

Chief Kirk and the bar babe would have been perfect for each other, but things didn't work out. Come morning, they wake up, and she asks him if her butt looks big. Chief Kirk throws on his flight jacket and hauls ass back to his ship. He doesn't want to see a woman for another twenty years after he's had a pipe load of that "Does my butt look big" bullshit.

Unfortunately for Chief Kirk, by the time he gets back to his ship, a hundred female sailors have reported aboard for duty.

#

Jack's trashed, and thinking Chief Snockerd is starting to sound like Buzz Rucci with his cockamamie story. In fact, Chief Snockerd has turned into Buzz .

"What are you doing here?" Jack says. "What happened to Chief Snockerd?"

"He got too snockered and they threw him out," Buzz says. "Your poodle Carly told me you were over here and might need help."

"Jenny have her baby?"

"Yeah."

"Boy or girl?"

"I didn't look that close. C'mon, give me your keys, we'll hit the O' Club and celebrate."

#

Wednesday Night Live was getting old, as was the professional harlot who led Jack and Buzz to their table. She brought them a pitcher of beer. "Out late tonight, boys?"

"It's my fault," Buzz said. "My wife just had a kid. I wanted a puppy. But my wife said if we got a puppy, I'd have to take care of it. So I comprised."

"Poor baby," the harlot said, and disappeared.

Jack, drunk as a skunk, wondered where she disappeared to.

Buzz had a funny look on his face.

Jack tried to prop his elbow up to arm wrestle with Buzz, but his face hit the table instead.

#

Carly was curled up on a cot in the ready room, next to her semi-permanent duty desk.

#
Goober sat at home in his underwear, watching a rerun of The Porter Wagner Show . (Featuring Dolly Parton!)

Thanks

I'm not sure if this is in keeping with proper blog etiquette, but thanks to the folks who nominated P&S for the Koufax "Best New Blog" Award over at Wampum.

I sure appreciate the support.

More Bunk from the Bunker

At the gaggle, Scott McClellan says Mister Bush is comitted to upholding our Constitution. But he can't answer any questions about the executive order allowing the NSA to spy on Americans because it's classified.

Helen's asked him three times now if it's legal to spy on Americans. Scotty's dodged it all three times.

Now he's changed the subject to the Patriot Act debate.

Can you say "disassemble" Scotty?

Oh, God, now he's trying to make Congress responsible for Mister Bush's executive order.

How does Scott McClellan live with himself?

How do any of them?

So Far, So Good...

As of 12:30 today, the Patriot Act filibuster is still holding (by 8 votes). Pat Leahy just gave a pretty good speech.

Frist is talking now. Time to find something better to do.

Big Brother and His Cosmic Decree

Gee, can you believe this? From the NYT.

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, 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, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

How about that? Mister Bush decided to do that all on his own with an executive order. No Patriot Act, no blank check Authorization for Use of Military Force. He just went and wrote him his own blank check.

Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans

Which administration officials would these be? The ones who think the Geneva Conventions are "quaint" and "obsolete?" The same ones who think it's constitutional for the President to suspend habeas corpus? The same ones who think Mister Bush has "plenary [absolute]" war powers and that his "decisions are for him alone and are unreviewable?"

And which administration official was it who said that when it comes to fighting terrorism, "anything we do is within the law?"

Hey, by golly, that was Mister Bush his own self, wasn't it?

#

This executive order spying has been going on for four years, and we're just now hearing about it. The NYT held the story for a year. Hey, way to watch out for us, public watchdogs.

We found out a couple days ago that the Pentagon has been spying on war protesters. How long did the NYT keep that under wraps?

#

Amok. Out of control. Gonzo.

#

Yes, Virginia, your President has been exercising dictatorial powers. Under the table, behind your back, and square in front of your face.

Want to do something about it? Good luck.

The GOP controlled House won't impeach him, and the GOP controlled Senate won't convict him. (Plus, he's got Joe Lieberman in his pocket.)

Think you can challenge Mister Bush's shenanigans in the courts? Think again.

While you were watching the circus act over Supreme Court nominations, your leader was loading the lower courts with federalist yes men. These are the guys (like John Roberts) who ruled it was okay for Mister Bush to throw whoever he wanted into Guantanamo, and keep American citizens in a Navy brig without access to a lawyer or the courts. Do you suppose they're going to get upset over a little thing like using the National Security Agency to spy on you?

The Mainstream Media Kiss Up

I’m not sure what NYT's David Sanger is up to with this "news analysis."

It took a thousand days after he ordered the invasion of Iraq for President Bush to describe in considerable detail his strategy for transforming the country and the region, and to lay out the benchmarks that he said Wednesday would lead to "complete victory."

Yet in four recent speeches and an accompanying strategy document he has made his case, some of his aides concede, just as his ability to control events in Iraq may be about to erode.

I listened to all four speeches and I read the strategy document. Mister Bush did not give us considerable detail, or benchmarks, or a strategy. He gave us a rehash of the same piffle he's been blowing up America's skirt and threw in some extra buzz phrases. He certainly hasn't "made his case," and when did he ever have "control" of events in Iraq? What's left to erode? And, hey, are we ever going to get a precise definition of what "complete victory" is?

More "analysis" from Sanger:

In the speeches, Mr. Bush has been cautiously optimistic. He has acknowledged, however, that almost nothing in Iraq has gone according to plan in these past 33 months.

Nothing's gone according to plan because there hasn't been a plan. We've been fumbling around in Iraq since the phony baloney scene the Army psyops staged when Hussein's statue came toppling down.

Sanger tells us that many administration officials have taken of their rose colored glasses.

One senior White House official, insisting on anonymity because he is not authorized to talk about Iraq, said last week that in meetings "we've talked about the possibility that the new Iraqi government will see no advantage in putting its security forces out on the street quickly" if they think the result will be the departure of American firepower.

Some officials have the opposite fear, that a new Iraqi government will ask the Americans to leave too quickly.

All agree, however, that over the next year the American ability to shape the Iraqi battleground will gradually decline.

I won't go into a lecture here on what it means to "shape a battlefield." Suffice it to say that we haven't been doing it in Iraq for the past two years. And if anybody in the White House or the Pentagon thinks we have been, it's no wonder the conflict turned into such a tar pit for U.S. forces.

Sanger continues:

If it [by "it" I assume Sanger means the "American ability to shape the battlefield"] declines because a new Iraqi government - even a factious, argumentative one - takes shape, the president will be able to declare before the midterm elections that the great gamble of his presidency has paid off, and troops may begin to come home.

Come on, Sanger, let's quit mincing words. What you're really saying is that in a best-case scenario, a factious, argumentative Iraqi government will emerge, Mister Bush will declare "complete victory," and bring the troops home in time to save the Republican Party from being slaughtered in the November '06 elections.

If it declines because the country spins out of control, because terror groups and insurgents still roam, because holding elections turned out to be easier than forging compromises, then Mr. Bush could be back doing next year what he has done over the past two weeks: explaining what went wrong, and why invading the country turned out to be a lot easier than remaking it. (Italics mine).

Q: At what point in the past two weeks did Mister Bush explain what went wrong or why invading the country turned out to be a lot easier than remaking it?

A: At no point did he explain either of those things.

Q: Why are Sanger and others in the mainstream media telling us that Mister Bush gave us a detailed strategy and explained things when anybody who's been potty trained knows he didn't?

a) They're idiots.

b) They think we're idiots.

c) They--especially the New York Times--know they're culpable for helping us get into the Iraq fiasco.

d) They want to seem fair and balanced so they don't lose further circulation/audience share to Fox News, A.M. talk radio, and the rest of the right wing media.

e) All of the above.