Thursday, February 02, 2006

Confessions of a Lapsed Constitutionalist

If you call a tail a leg, how many legs does a dog have?

Is it wrong to break the law?

I'll try the second question first: no, I don't think it is. In fact, I don't think the law has anything to do with right and wrong---if I murder somebody, it's wrong for other reasons, not because there's a law against it.

Like most of us, I too was inculcated with a reverence for the wisdom of the Constitution. Unfortunately, the more I learned about the history of how its letter has been used against its spirit, its totemistic appeal faded for me. We are a nation of laws, not men, goes the cliché. But are they not the laws of men?

I don't see any laws of men as inherently moral. They might be, they might not. We do the best we can, mostly. I've lost my romance for the constitution---it's whatever 5 Supreme Court justices say it is, let's face it. I have no idea at this point whether our Creator wants us to have guns or has endowed us with the right to not have Bush listen to our phone calls.

I suppose the reason The Reform Club, despite popular demand, hasn't delved into the NSA eavesdropping on calls is that it's written about elsewhere and everywhere, and often better than we could manage. Some guy named Glenn has become an overnight blogstar quite persuasively putting the Bushies up on a meathook. For those interested in that, I urge you to take your business there. As for the other side of the issue, well, for those afflicted with Bush Derangement Syndrome, there is no other side.


Apparently, the courts' current legal theory has declared listening to phone calls the same as the British stopping you out of the blue and looking through your stuff, exactly what the Fourth Amendment was designed to prevent. But the law has taken the logical fallacy of argument by analogy and enshrined it in judicial fiat. A telephone call is not a horse-drawn carriage. To echo Dickens' Mr. Bumble, if the law suppose that, the law is a ass. Calling a tail a leg does not make it a leg. (As Mr. Lincoln observed, per the opening of this essay, the answer remains four.)


Arguing the law is amusing as an intellectual exercise, but I've become a bad debating partner for legalities these days. I'm more concerned when the law, whatever it is, claims primacy over conscience. Call it philosophical, for lack of a better term.

I understand people's orthodoxies about the law as taught in any good civics class, but I'm a free thinker, a rebel. What can I say? I think it's proper to question, even hypothetically, that if Bush's putatatively illegal wiretapping indeed saved lives, whether it was not a good thing.

I believe there is something higher than both laws and men, and philosophically, that was the notion behind what the Founders created. I don't think they shared the relativist view that one man's good is another man's evil, (although they acknowledged that that could sometimes be the case, mostly on slavery, it seems). The Founders shared a common belief in a higher moral order, whether they arrived at it through religion, Deism (a sort of laissez-faire existence on the part of God), or classical philosophy, which was vitiated by the desire to derive absolute Goods by reason.

As much as we'd like to think the Constitution gives us some preternatural innoculation against human nature, we are still a nation of men, like any other. I read the parsings of the 2nd Amendment, and opinions on whether the "militia" clause is dependent on the "right to bear arms" clause, or vice-versa, and realize that one side is going to enforce their will on the other. Today, constitutional arguments are like interpreting any other sacred text, and that usually goes the way of one's druthers rather than a search for truth.

That's not to say I've given myself over to pessimism or nihilism. I still believe in the existence of absolute Good, and so I don't see the often-attacked-these-days "ticking bombs" as absurd---on the contrary, they're definitive.

There are a lot of idiosyncratic moralities these days, but the one thing we all know for sure is the reality of life and death. Almost all of us agree that saving innocent lives is more important than the law, and that should be at least the starting point of discussion before we delve into the abstractions of rights and slippery slopes.

(Almost all of us agree, anyway.)

Seeing life through the eyes of the law is like listening to Mozart by reading the musical score. And Shylock in The Merchant of Venice found that extracting his strict measure of justice before the law, his pound of flesh, was not so easy. He himself was a condemned man if he shed a drop of blood in doing so.

The people, in their collective wisdom, can declare our phone calls sacred. And we can extract our justice on Bush, our pound of flesh. (I'm sure he ran afoul of the law somewhere.) But let's make no mistake---the byproduct will be blood, and probably not just American blood. Would that life were as easy as following the dots. The last thing I'd want on my tombstone is, "He let people die, but he never broke the law." Bring on your justice.

33 comments:

Jay D. Homnick said...

There's a lot of beautiful writing by Ben Hecht on this subject, both in the second half of A Child of the Century and in Perfidy.

connie deady said...

Are or are you not going to debate the wiretapping? Discussed within the context of what do we value, it's a discussion one can have on a moral or philosophical plane rather than just a mundane legal plane.

I think you are offering an Augustinian theory of law and morality? I believe he said that man's laws and God's laws are not the same thing. The purpose of civil laws are to keep order and care for the body. God's laws care for the soul.

Where you and I differ is my fealty to the process of the laws (not the substance). It doesn't matter so much what the laws say, rather society as a whole depends upon people respecting the law and the Constitution.

Without respect for the democratic process or the Constitution, what's to keep the military from effecting a coup? They did it regularly in third world countries, because their was no respect for law. What's to keep a general from deciding the President is wrong in refusing to fire nuclear missiles?

I guess my respect for the process comes from my lack of certainty about what is moral or right. It's not a bad fallback, you know.

We all have to live with our own moral conscience. I may decide it is necessary to break the law and kill someone to save other innocent lives. I don't expect to do with without having to answer to civil society for it.

I think there is a profound difference between ignoring the law and recognizing a greater right than the law in an individual circumstance. I might break the law and torture someone in a dire circumstance, but I'd prefer to have torture be against the law and knowingly and willingly with awareness that I will be called to accoutn break that law than just disrespect it.

And I firmly and strongly believe that you are just wrong in assuming that breaking the 4th amendment and the FISA statute has saved one ounce of blood. That's a Bush sophistry because the law allows tapping with retroactive warrants in 72 hours.

aardvark said...

"As for the other side of the issue, well, for those afflicted with Bush Derangement Syndrome ... Bring on your justice."

Wow. (sighs)

Hunter Baker said...

Tom, as you probably already know, you are making the same appeal as Martin Luther King, Jr. from his Birmingham jail cell. There is a higher law and the laws of men are worth anything only to the extent they reflect their true source.

What you may find hilarious is that I mentioned that to a lefty Christian friend of mine and got the greatest response:

"Well, King only adverted to the natural law because at that point he didn't have access to a higher Marxian critique."

brmerrick said...

"I have no idea at this point whether our Creator wants us to have guns or has endowed us with the right to not have Bush listen to our phone calls."

Then perhaps you should re-read The Declaration of Independence, wherein Thomas Jefferson said that we are endowed by our "Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness." The spelling out of these rights with amendments such as the second and fourth is a spelling out of what God gives us. If The Constitution has truly been reduced to what five Supreme Court Justices say, then perhaps we could all throw up our hands in exasperation and resign ourselves to what we see as inevitable, like Mr. Van Dyke. But I'll stand with TJ (and DT, for that matter) any day over five activist Lefties, and "rage against the dying of the light". Just because someone interprets the document wrong, engages in sophistry, or decides that these are indeed the laws of man and not inviolate God-given rights, does not invalidate the infinite battle for the preservation of those rights.

Shall we outlaw passive activities that violate no one's rights, as is now the case in Great Britain with fox-hunting? Shall we set up surveillance cameras across our country as they did, if it saves one or more innocent people? Shall we sigh and say, "Oh, well" when the next religious compound burns down, whether it is done by a president we like, sort-of like, or openly disdain? Or shall we fight?

JC said...

Wiretapping... I'm already sick of hearing about this on the news. Is it "domestic warrantless wiretapping" or a "terrorist surveilance program?" Since we're on the subject, I'll put in two cents.

In terms of what's legal:
Apparently everyone agrees that the President/CIA may order warrantless wiretapping if both parties are outside the U.S. (foreign call), it's called esponiage. He may not do it if both parties are in the U.S. (domestic call). This is what I've gathered from listening to report after report.

But what if one party is in the U.S. and one is not? I certainly don't think it's fair to call it "domestic" wiretapping. After all, if you get a phone bill for a call to China, it would be listed as an "international" call, not a domestic one.
It seems to me that the law isn't clear either way.
So suppose you're the one who has to make this decision, given that:
1. Some phone calls are made from the U.S. to another nation (or vice versa) and you suspect that at least one party is in AQ or another terrorist group.
2. You don't have enough evidence to get a warrant, but you suspect they might be planning a terrorist attack.
3. This would be fine if they were overseas, but one party is in the U.S.
4. The law isn't really clear on whether that's legal or not.
5. You don't exactly want to make a national debate out of it, since that would spoil at least part of the secret. Secrecy is important when you're spying.

What do you do?
As Bush has said, if he doesn't do everything legally possible, then the next terrorist attack would be blamed on him. So it's hard to fault him for stretching the limit of the law. He did consult with a bunch of lawyers and the top intelligence Republicans and Democrats in Congress.

I'm not sure if I agree with what he did, but it seems like a perfectly reasonable course of action. He wasn't spying on Democrats (Watergate), he was (as far as anyone can tell) honestly trying to fight terrorism. I can also see why he'd be annoyed that the secret program was revealed in a national newspaper.


On the subject of the article, is it wrong to break the law?
The Bible says that kings are only kings because God lets them be kings. This suggests that we should give much deference to the law, though that doesn't mean the law is always right or that we should absolutely never break the law. So yes, I think it's wrong to break the law, and if you do, the burden of proof is on you to show that you chose the lesser of two great evils.

Matt Huisman said...

Tom, even though I may fall with you into the camp of those not willing to personally demonize Mr. Bush on the wiretapping issue – I don’t know that I necessarily feel that he is due to escape whatever legal ramifications there may be if he violated the law. I have no idea whether he did or not, but it seems to me that he chose a route here – by not challenging whatever process he found onerous – where he was willing to take the risk that he might have to someday accept the consequences of his actions. It may be an inescapable reality of life that all people are forced to make these sorts of choices - and the decisions of Presidents are certainly beyond my ability to make – and we will have to live with consequences on either side.

Now there is no doubt a parallel universe out there somewhere (Mr. Hawking tells me so) where this is an issue between two sides with the purest of motives, and Mr. Parallel Bush (I envision him with a goatee) would still be faced with the same decision with respect to overstepping his authority. However, we haven’t evolved to that point down here, though we’re no doubt on our way, and it seems to me somewhat odd that we’ve allowed the situation to develop where we would make our President’s decision harder because he has to deal with people whose sincerity can become cheapened by not ever having to put their John Hancock on the policy in question.

I think I heard Tom Peters say one time – can’t believe I’m making a favorable TP reference here - that every institution should have a CNO, or a Chief No Officer. The idea is that proposals for change can only be shot down at the highest level of authority in the company. If your boss turned you down, the idea went to his boss, and if he turned it down, it went to his boss – all the way up to the CNO. The point being that ideas are too easily rejected because there is nothing on the line for the person saying no. The same applies to our present scenario. I can live with an incorrect decision made with good intentions on either side of this issue – what I can’t live with is the idea that one side thinks they should get a free pass on the scrutiny that will follow the events in the future.

All of this is to say that, if you truly wish the ideal of limited wiretapping to be in place, you will use sober language when rightfully dealing with Mr. Bush, and accord him some due respect for the dilemma he faces. Unfortunately, we all know this won’t happen (and the same would be true if the situation was reversed), and we’ll continue on settling for juvenile gotcha politicians rather than real men (sorry Connie, ‘adults’ doesn’t quite do it for me here) who move us forward with adult decision-making.

JC said...

Well said, Mr. Huisman.

Matt Huisman said...

Thanks, JC. Although now that I look back at what TVD wrote, I'm not sure that I added much. Mr. Van Dyke is the goods - though I don't know that you'd want to put him in charge of community consensus building.

James Elliott said...

I think there is a profound difference between ignoring the law and recognizing a greater right than the law in an individual circumstance.

I think this sums it up perfectly. There are a number of different camps, if you will, in this matter. There are the Bushistas, as I call them, who trust and believe in authority to protect them against the boogeyman of terrorism. There are those who, like Tom, would prefer to see the executive act to preserve life and moral good, rather than what are, perhaps, niceties of law, when that life is in danger. There are those concerned with infringement on civil liberties, holding them paramount. And there are those, like Connie and myself, concerned with the process.

There are those blinded by their Bush hatred or their Bush sycophancy. I do not hate Bush. I sincerely believe he thinks he is doing what is best. I do believe that Bush is a zealot, unable to question his actions and convinced of his righteousness. I will take an evil man over a zealot any day. Rather, my concern is the abuse of power. Rather than utilize a pre-existing law that has served for nearly thirty years as a rubber-stamp to intelligence needs, rather than utilize existing rules for the secret modification of such laws, the President declared himself above the law, able, by virtue of his office, to de facto inherit monarchial, unilateral powers with no oversight, with no check or balance. This is in violation of our very principles of government.

The Constitution is, at heart, a simple document. It was not meant to encapsulate in its entirety the minutiae of bureaucracy or the complexities of law. It was designed to tell government what it can and cannot do. Tom's argument about the Fourth Amendment is easily applicable to the Second, and contrary, perhaps, to what he might want: If a horse-drawn carriage is not a telephone, neither is a submachinegun a flintlock musket. The interpretation cuts both ways.

But I digress. As Matt alluded to, if Bush and his policy makers are utterly convinced of the moral right of their decisions, there are such defenses allowed in law. A necessity defense allows one to claim that their action, while contrary to the law, was needed and appropriate. A jury of their peers might - I would argue that, given the chance, it would - forgive the violations of the wiretap program, and perhaps even torture, viewing them as necessary to the defense of the nation. But such a discussion and a conclusion requires that the mechanisms of government and law be followed. It requires the executive to be willing to consider that a jury of its peers might decide they were wrong. It requires that executive to adhere to the principles of checks and balances, to equality before the law, and personal responsibility to answer for one's decisions and actions.

We have seen no such willingness from this administration and its enablers. We see only certainty and righteousness. The greatest strength of an individual or group is to recognize that they may be wrong, to act as they judge best, and to answer for the consequences.

Tom Van Dyke said...

Thanks, Mr. Huisman, you get it. Do not think that I came to bring peace on the earth; I did not come to bring peace, but a sword.

JC said...

We have seen no such willingness from this administration and its enablers. We see only certainty and righteousness.
Bush agreed to hearings etc. He's still concerned that more secret details will be leaked out, but I think as long as people in Washington keep their big mouths shut, the administration will cooperate.

I will take an evil man over a zealot any day.
Evil men are almost always zealots (exception: Jack Abramoff), while not all zealots are evil. I question this principle, but I think you are really using hyperbole to make a point about how annoyed you are that Bush stepped outside the law (in your opinion).

Kathy Hutchins said...

I've lost my romance for the constitution---it's whatever 5 Supreme Court justices say it is, let's face it. I have no idea at this point whether our Creator wants us to have guns or has endowed us with the right to not have Bush listen to our phone calls.

I have to disagree with you here; the Constitution is not what five people say it is. The Constitution is what it is: a set of general liberal precepts, grounded in natural law. That the mechanism we have established for applying its constraints on our body politic involves obeying the writ of five imperfect people does not alter the Truth that underpins the document and that is the source of its true moral authority.

Since the source of the Constitution's moral authority is the natural law, you can, independently of a written opinion, determine whether your Creator wants you to own guns. Your method for so discerning is likely to be fallible as well; in case of a conflict with Roberts et al. you will have to consult the natural law on the primacy of your conscience vs. the lawful requirement to promote a stable civil society by adhering to the rules.

But this explains why we spatted in the op-ed thread: you're an Aristotelian and I'm a Platonist.

James Elliott said...

Bush agreed to hearings etc.

These would be the same hearings where members of both parties complained that the administration refuses to turn over documents that would allow them to conduct their hearings in an informed and proper manner? Give me a break, JC. Or at least tell the whole story.

I question this principle, but I think you are really using hyperbole to make a point about how annoyed you are that Bush stepped outside the law (in your opinion).

Well, you're welcome to think what you want, even when it's wrong.

Evil men are almost always zealots (exception: Jack Abramoff)

It's so amazing how wrong you are, and on such a consistent basis. Do you practice or does it come naturally?

Evil men are frequently not zealots. There are plenty of examples of evil conducted for nothing more than narcissism or avarice without adherence to a greater cause or ideal or even the belief in one's own righteousness.

Jack Abramoff: Demonstratively a zealot.

Matt Huisman said...

James>> ...the President declared himself above the law, able, by virtue of his office, to de facto inherit monarchial, unilateral powers with no oversight, with no check or balance.

I'm not entirely comfortable with the situation here James, and am not really sure (I have some ideas) what prompted the Administration to make the decision to go this route. I guess I'm less concerned about it given that there were some discussions with some senior Democrats (or at least that's my understanding) that they were going to implement such a policy. At least there were some people who were not shocked about the whole thing.

By the way, kudos to those Dems for keeping their mouths shut and not exploiting the situation. I wouldn't have had a problem if they would have told him 'no way, or else' at the time - but apparently the notion sounded reasonable enought to them. Of course, for those would-be witch-hunters out there - you may want to ask those guys what they were thinking. I mean, we all know that Bush is crazy, but how could they have signed on to all this?

James Elliott said...

Matt,

Once again, you sound off as a voice of reason and consideration. I don't, per se, have a problem with the what - which is to say, the wiretapping. I'm honestly kind of surprised that there wasn't a law on the books authorizing it or something similar in the first place, and so long as there were checks against the abuse of power, I wouldn't flip out about it if there were.

The way I understand the law, there were, in fact, no legal impediments to the Bush administration doing what it wanted to. FISA specifically covers listening in when one end of the conversation occurs in the US. There is no need to obtain the warrant before conducting the surveillance, so long as one is obtained within 72 hours. Of the 10,000 applications we know of, only 4 were denied. All in all, FISA appears well-balanced between the needs of the intelligence community and the protection of rights.

There are also procedures in place for the secret modification of laws in the event of a national security need. FISA was altered three times post 9/11 that we are publicly aware of. If it posed an obstacle, there were remedies available to the Bush administration, such as altering the law and grandfathering in the program, that they never availed themselves of. What I find most telling is that the Bush Administration claims FISA as an obstacle now that they have been found out, and assert a right to ignore our reinterpret laws as national security may dictate, while having willfully - one might even say brazenly - ignored the pre-existing options. This is a disturbing development that flies in the face of American governmental philosophy.

I'm confused as to which witch-hunters you're referring to.

JC said...

The reports I heard made Abramoff sound awfully cynical, rather than zealous. He exploited the zeal of others for personal gain; for example, rallying the Right to oppose a new casino---not because he hates gambling as the Right did, but because an existing casino was a client.

Evil men are frequently not zealots.
Evil men who were "zealots" include Saddam and Hitler. They apparently believe(d) they were doing good. Of course, it's difficult to ascertain the true motives of such men. Or perhaps we misunderstand each other's words; you could give some examples of "evil men" that you would prefer over the "zealot" Bush, since you claim that was not hyperbole.

Frankly, I'm just not that disturbed by the whole thing. If I called Osama's younger cousin in Iraq and Big Brother wants to listen, fine. I wouldn't even care that much if they recorded random international phone calls. I have nothing to hide. When this goes through the courts thanks to the ACLU and friends, that may be the very thing that happens: judges may find that there is no justiciability if no one was actually harmed by it. I realize that most privacy advocates will choke when they read this paragraph. To me, it's just a convenience that the government ignores citizens most of the time, at least until search/seizure becomes a weapon for Big Brother to attack political opposition (Watergate). My experience is that about 99% of the time, someone concerned with personal privacy in a particular case has something illicit to hide (except when it comes to the problems of health care and identity theft), though that is not an indictment of privacy advocates. I'm willing to push the line of privacy vs. security towards the latter. That's just my personal opinion, and perhaps that explains why I'm not up in arms over screaming that Bush ate the Constitution.

Matt Huisman said...

Of the 10,000 applications we know of, only 4 were denied.

I really don't feel like looking into this, but my understanding was that in 2005 the denials increased to something like 25%. (I could be wrong here.) I mention this only to note that the FISA 'rubber stamp' seemed to have changed. I don't want to debate what a tolerable level should be.

What I find most telling is that the Bush Administration claims FISA as an obstacle now that they have been found out, and assert a right to ignore our reinterpret laws as national security may dictate...

If I'm wrong about the FISA denial increases and/or about the notification to senior Dems, then I'm probably with you. I'm not personally rushing into this, as I'm expecting that the relevant facts will take a while to come out - and I have zero faith in the Bushies to be able to defend their actions efficiently.

I'm confused as to which witch-hunters you're referring to.

No one in particular. Some people are just really excited to 'shoot first, question later' with this (and from Clinton on) President. If I'm correct that some Dems were consulted, then I would think that it would make sense for someone of a liberal persuasion to look into their own household before teeing up Bush.

Tom Van Dyke said...

Fine arguments, Kathy, but if the letter of the law is put in the hands of those who reject its spirit (a higher moral order, natural law), then it's a gun turned on its owner.

(A current argument against the 2nd Amendment as an individual right to bear arms, come to think of it.)

The question is whether our civic-minded fealty to the Constitution is used to compel us to support its perversion.

connie deady said...

I'm not sure if I agree with what he did, but it seems like a perfectly reasonable course of action. He wasn't spying on Democrats (Watergate), he was (as far as anyone can tell) honestly trying to fight terrorism.

And you this because?

I think that is rather the point. Without FISA oversight, there is no way to know just who was being spied on and to what ends. That's why the law was passed, because of Nixon's wiretapping abuses. Suppose Hilary Clinton was elected in 2008. Would you trust her if she said they were just wiretapping people who were our enemies or consorted with them, as opposed to Republicans?

connie deady said...

The question is whether our civic-minded fealty to the Constitution is used to compel us to support its perversion.

Who is perverting it and how? Don't you believe that the framers of the Bill of Rights would have been opposed to agents of the government hiding in their houses and listening to their private and intimate phone conversations?

And what is your alternative? We all run around doing what our individual conscience says? I shudder at the thought of Bill Clinton governing based on his conscience alone.

Matt Huisman said...

OK, so I’ve done a little more digging on the numbers. Here’s the Seattle P-I with the numbers:

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation... since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.


I was quite a bit off with the 25% thing (I think I thought it was 1,790 instead of 170), but I was never putting my stock in the quantity, just the indication that things were now different and/or more cumbersome. Here’s an article by Byron York with a little more background on some of the problems with FISA. This item from the article makes it obvious that FISA is still no cakewalk – and everyone knows it:

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

And anyone who reads the Zacarias Moussaoui laptop account will surely be in utter disbelief. So at this point, as far as I can tell, we have the Administration employing methods that 1) are likely to be found technically legal (tapping a foreigner's phone call), 2) that have prevented harm (Iyman Faris), 3) that were implemented in order to overcome obstacles that everyone is aware of and 4) was implemented with the awareness of the loyal opposition. I’m not saying that people are wrong for wanting to make sure the whole thing is on the up and up, but let’s have a little perspective. The more I look at this, the more I’m convinced Bush is only doing what any sane person would do. If you want your gov’t to protect you – in every sense of the word – then one’s ire should be directed at the bureaucrats.

James Elliott said...

JC,

“Or perhaps we misunderstand each other's words; you could give some examples of "evil men" that you would prefer over the "zealot" Bush, since you claim that was not hyperbole.”

Sure thing. Perhaps you’ve heard the old cliché or adage that “If you are ever faced by an enemy, pray that he is an evil man, for the evil man may hesitate, or gloat, providing you with opportunity. If he is a good man, flee for your life, for he will not hesitate to strike you down”?

Now, where I went wrong was in simplifying the equation. I appear to have implied that one can be evil or a zealot but not both, which is obviously untrue and was not my intention, and I apologize for keeping my rhetoric too brief.

Many evil men can be counted on to act within their self-interest, so long as they are not zealots. While zealots can perpetrate evil acts, they may not be, in themselves, evil. An evil man is often a narcissist, concerned about the self. By acting within their best interests, they can be persuaded or expected to act rationally in many situations.

A zealot, be his allegiance “good” or “evil,” is a person utterly convinced of their righteousness and of the certainty of their actions. A zealot cannot be counted upon to act rationally or to reflect or consider their options. A zealot cannot be counted upon to question their actions or motives, contrary to an evil man. A zealot acts decisively and swiftly, without doubt, even in situations where the outcome is by no means certain, and are utterly incapable of being swayed from a chosen course, and are willing to sacrifice almost anything to reach a desired outcome, even if that means innocent blood.

Does this clarify it a little? The zealot is irrational and wholly unwilling to negotiate or consider. The evil man will, often, act in his self-interest; therefore, dealing with him becomes a matter of convincing him that your preferred outcome holds the best advantage for him as well – thus avoiding unnecessary violence or destruction. This option isn’t open for the zealot.

James Elliott said...

...173 of those court-ordered "substantive modifications" took place in 2003 and 2004...

Interesting. Now, we know the wiretapping program has been in place since late 2001. We also know that in 2003 the presiding judge of the FISA court ordered that the DoJ reveal which applications were being made based on information garnered from the wiretaps because she feared such wiretaps were illegal. To me, coming from someone whose job it is to know the intricacies of foreign surveillance and the law, this is a pretty damning indictment. And like I said, there is no indication that the court provided any kind of substantial barrier to the Bush administration's obtaining the program they wanted - there were merely procedural hurdles to be surmounted, and mechanisms allowing them to do so swiftly and secretly. We also know that the FBI's counterterrorism unit complained that the program led to literally thousands of false leads and to no terrorist connections they were not previously aware of (That's from the NY Times.).

I know a lot of people are up in arms about the privacy issues, but I'm not. I have no problem with the program itself, unlike, admittedly, a number of my colleagues on the Left. I do have problems with how the program was arrived at. I don't trust authority enough to think that they will always act in the people's best interest. I very much believe that any precedent allowing them to eschew checks and balances - no matter how effective or for what reason at the time - is a grave danger to liberty.

Matt Huisman said...

James>> And like I said, there is no indication that the court provided any kind of substantial barrier to the Bush administration's obtaining the program they wanted - there were merely procedural hurdles to be surmounted, and mechanisms allowing them to do so swiftly and secretly.

Did you read the Byron York article I linked to? The whole point was that the 'mere procedural hurdles' were in a lot more than just submitting a blank for to be stamped later. Case in point, Zacarias Moussaouwi's laptop computer. They were not able to gain authorization to access it until after 9/11. Granted some things have been changed in the procedures since then, but it still sounds as though anything other than an absolutely over-the-top lead is not worthy of going through the emergency procedures for.

We also know that the FBI's counterterrorism unit complained that the program led to literally thousands of false leads and to no terrorist connections they were not previously aware of (That's from the NY Times.).

This is an interesting item. It now appears we're at the point of information overload. We have way too many leads to process, and the leads that we do want to pursue take way too long to approve. Anyone who has ever been told that their office was going to become 'paperless' no doubt understands the multiplication of forms and procedures that has taken place here.

How bizarre is it that the biggest obstacle in the global war on terror may be the inability of the most technologically advanced nation in the history of the world to develop an intelligible flowchart?

connie deady said...

Did you read the Byron York article I linked to? The whole point was that the 'mere procedural hurdles' were in a lot more than just submitting a blank for to be stamped later. Case in point, Zacarias Moussaouwi's laptop computer. They were not able to gain authorization to access it until after 9/11. Granted some things have been changed in the procedures since then, but it still sounds as though anything other than an absolutely over-the-top lead is not worthy of going through the emergency procedures for.

I would suggest that asking Congress to change the procedures to make them less budensome is probably a better idea than just ignoring the law and the procedures.

Just think if all government officials decided to ignore procedures which were burdensome.

I don't think it is inherently burdensome to seek a warrant, particularly a retroactive warrant. After all, our Constitution demands warrants.

Matt Huisman said...

Connie>> I would suggest that asking Congress to change the procedures to make them less budensome is probably a better idea than just ignoring the law and the procedures.

I believe that the Administration, the FBI, the 9/11 Commission and countless others have asked. At some point, matters of life and death take priority (as Mr. Van Dyke suggested initially) and you find a work-around to the problem.

Mr. Bush has put the ball in the lawmakers court by letting them (senior officials) know what he was up to, and basically saying if they really care about privacy they'll create something that he can work with.

As I mentioned earlier, all of the burden (security vs. privacy) had been structurally laid at the feet of the President. There was no potential pain for the lawmakers to face, and therefore no real pressure to get something done quickly. From the looks of it, Bush has deftly shifted half of that responsibility back on the lawmakers.

I don't think it is inherently burdensome to seek a warrant, particularly a retroactive warrant.

You would think so, but then you have to ask yourself why the FBI had such a hard time getting authorization into Zacarias Moussaouwi's laptop. I think it's a little too easy to say that FISA is this fast-track to Warrantville.

connie deady said...

I believe that the Administration, the FBI, the 9/11 Commission and countless others have asked. At some point, matters of life and death take priority (as Mr. Van Dyke suggested initially) and you find a work-around to the problem.

I'm reasonably certain that you are wrong. I've read a gazillion articles, discussions, etc. on this issue and never any suggestion that Bush went to Congress and asked for such authority, or in the alternative asked them to relieve any of the alleged red tape that burdens the warrant process.

Rather, it appears that they spent all of their time trying to find justifications why they had the power to do what they wanted to anyway.

Matt Huisman said...

Connie>> I'm reasonably certain that you are wrong. I've read a gazillion articles, discussions, etc. on this issue and never any suggestion that Bush went to Congress and asked for such authority...

Here's something from Jurist (Pitt School of Law):

The Bush administration has also come under fire for its limited briefings on the program. Only certain members of Congress, rather than the full House and Senate Intelligence Committees, have been briefed, and a Congressional Research Service report [PDF text; JURIST report] released Thursday concluded that the limited briefings are "inconsistent with the law." AP has more.

Their basic contention is that Bush should have briefed more people than the so-called Gang of Eight. Whether he should have or not, it doesn't strike me as something that was done behind everyone's back.

I would also suggest that one could infer quite reasonably that the administration's frustrations with FISA were well known and at least somewhat legitimate. If FISA was so easy, why would they look for another method. If FISA was so easy, why wouldn't the Gang of Eight absolutely freaked out.

As I said earlier, the deck was stacked against the administration - either they choose to err on the side of privacy and take the blame if something went wrong or they choose to prioritize security and get challenged on privacy grounds. They have cleverly put one of those balls back into the lawmakers court. For the moment, it still seems to me as if they have acted reasonably.

Tlaloc said...

"I believe that the Administration, the FBI, the 9/11 Commission and countless others have asked."

I'm sorry Matt but that's not only wrong but backwards. Congress at one point tried to push through a bill that would have made getting FISA warrants easier and the Administration actually said they didn't want it. At the time they made a good argument about how reducing "probable cause" ot merely "reason to suspect" might end up producing evidence that would later be ruled inadmissible and result in known terrorists being set free. Now we know that the whole time they were running an end run around FISA.

Now why do you suppose they did that? Obviously the burdern of FISA isn't the case. They turned down making it better.

Matt Huisman said...

Just as a reminder, I don't deny that I could be wrong. However, standards of evidence (probable cause) and the procedures for documenting those standards are two completely different things. Both can be a major pain in the behind for security personnel, and it is both probable and likely that the administration would have argued against various reform proposals if they felt it was problematic on either of those grounds.

Now I'll grant you that it's possible that their intent all along was to clear the way for them to implement their new authorization procedure. But I'll go back and state that they did at least notify someone who was in a position to put the brakes on the whole thing. So far, no one has come forward and said that Bush has pulled anything close to a Nixon.

If you feel you must, agitate for a ruling on the legality of the whole thing. In the meantime, let's put the Bush-Hitler rhetoric on hold.

Tlaloc said...

" But I'll go back and state that they did at least notify someone who was in a position to put the brakes on the whole thing."

Not really. A few congreemen were INFORMED about the program. Their approval was never sought. Indeed Rockefeller apparently expressed severe misgivings about it and was simply ignored. They were under threat of federal prosecution if they leaked the information. Fortunately somebody did which is why anybody else now knows about a program which is apparently illegal and definitely ineffective.

As for Bush-Hitler parallels, I find them rather tred but what can you do? The man has gone out of his way to be a fascist. Really what aspect of 1984 has this man not used as a political playbook?

Matt Huisman said...

Their approval was never sought. Indeed Rockefeller apparently expressed severe misgivings about it and was simply ignored. They were under threat of federal prosecution if they leaked the information.

Really. Poor little boy, he's such a lightweight. I'm surprised he didn't pack up his family immediately and move to Canada in order to avoid the stormtroopers.

Give me a break. The Dems have been having all kinds of memories about how upset, reasonable, egregious, non-confrontational these briefings were. Don't tell me they didn't have any ability to influence the situation.