Category: Politics

Essential reading. (Just in case anyone had any lingering doubts about whether or not Britain and the US were actually using “extraordinary rendition” to facilitate torture. We need more whistle-blowers like Craig.)

From the Daily Kos:

Counting all of the valid, redundant overvotes that indicated an unambiguous choice for president would give a narrow victory to Gore. Analyzing the invalid, multiple candidate overvotes shows a pattern that suggests probably several thousand additional people were trying to vote for Gore and made an error.

Read the whole thing. The numbers and correlations are pretty compelling.

I love inventors…. people who dream up practical solutions to exasperating problems. Even when the problem is man-made. Here’s a case in point. Riverbend just blogged about the chaotic gasoline supply situation in Baghdad:

People buy black market gasoline because for many, waiting in line five, six, seven… ten hours isn’t an option. We’ve worked out a sort of agreement amongst 4 or 5 houses in the neighborhood. According to a schedule (which is somewhat complicated and involves license plate numbers, number of children per family, etc.), one of us spends the day filling up the car and then the gasoline is distributed between the four or five involved neighbors.
The process of extracting the gasoline from the car itself once it is back at the house was a rather disgusting and unhealthy one up until nearly a year ago. A hose was inserted into the gasoline tank and one of they unlucky neighbors would suck on it until the first surge of gasoline came flowing out. Now, thanks to both local and Chinese ingenuity, we have miniature gasoline pumps to suck out the gasoline. “The man who invented these,” My cousin once declared emotionally, holding the pump up like a trophy, “deserves a Nobel Prize in… something or another.”

Must-read: Geoffrey Stone (Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago) on the Fourth Amendment issues raised by Bush’s wiretap program.

A couple of apologists for Bush’s warrantless wiretapping wax indignant in an op-ed in today’s New York Times. Yet when it comes right down to it, former DOJ lawyers David B. Rivkin and Lee A. Casey base everything on the following assertion:

Even if Congress had intended to restrict the president’s ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties.

But this is nonsense. The US Constitution uses the term “commander in chief” only once:

Section 2
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

This merely identifies the role of the President in the military command structure of the Army, Navy and Militia. It confers absolutely no powers with respect to any other agencies of government, nor does it specify that this authority is not subject to constitutional and legislative control. Indeed the Supreme Court ruled on this in 1952. The failure of Bush apologists like Rivkin and Casey to even consider this point is significant, as is their reluctance to come right out and claim that FISA is unconstitutional.
(This is a pretty useful background article.)
UPDATE: Marshall Grossman expresses it much better than I did.

Must-read piece by Glenn Greenwald, describing in detail how the 1952 Supreme Count decision in Youngstown Co. vs. Sawyer set out the limits on presidential power. And the bottom line:

If the President really believed that the Executive has full constitutional power in the area of surveillance on American citizens and that Congress has no power, he could have gone to a Federal Court and asked it to declare FISA unconstitutional on the ground that it usurps executive authority, or he could have publicly declared his right to violate FISA – just as Harry Truman did when he wanted to seize the steel factories and thus allowed the federal courts to rule on its legality. Bush did not do that. Instead, he just broke the law, hoped nobody would find out, and even tried to prevent newspapers from reporting it when they did find out.

In a comment to my earlier piece on this subject, Charlie from Colorado pointed out that two prominent legal authorities had argued that Bush did have the authority he claimed. But the first of these (Professor Cass Sunstein of the University of Chicago Law School) offers a very tentative assessment, without considering whether any SCOTUS rulings might establish any constitutional framework for evaluating Bush’s behaviour. The second, ex-Clinton associate attorney general John Schmidt, illustrates the problem of disentangling conflicting sources. He wrote:

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, “FISA could not encroach on the president’s constitutional power.”

It’s unfortunate that he didn’t identify which of the many FISC opinions this came from, because it seems to fly in the face of Youngstown Co. vs. Sawyer. In that case, as Greenwald puts it…

The Supreme Court said that even though the President may have a claim to some “inherent authority” [to act], once Congress has enacted laws making clear that he cannot do so, the President under our system of Government does not have the right to act outside of the law by violating Congress’ intent. In so ruling, the Court said that the where Congress has the power to legislate in a certain area (as it plainly does with regard to regulating eavesdropping on American citizens), the President is no more permitted to violate that law than anyone else is, even if he claims that doing so is necessary for him to carry out his Executive duties to protect the nation. It really does not get any clearer or more dispositive than this.

Indeed Sunstein seems to concede this:

On […] the question is how to square the AUMF with FISI. It isn’t unreasonable to say that the more specific statute, FISA, trumps the more general, so that the wiretapping issue is effectively governed by FISI.

(But then he starts waffling. Bad choice, Charlie.)

This is from an op-ed in The Washington Times (hardly part of the mythical “liberal MSM”) by Bruce Fein who served in Reagan’s Justice Department and is as conservative as they come:

According to President George W. Bush, being president in wartime means never having to concede co-equal branches of government have a role when it comes to hidden encroachments on civil liberties.
Last Saturday, he thus aggressively defended the constitutionality of his secret order to the National Security Agency to eavesdrop on the international communications of Americans whom the executive branch speculates might be tied to terrorists. Authorized after the September 11, 2001 abominations, the eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA), excludes judicial or legislative oversight, and circumvented public accountability for four years until disclosed by the New York Times last Friday. Mr. Bush’s defense generally echoed previous outlandish assertions that the commander in chief enjoys inherent constitutional power to ignore customary congressional, judicial or public checks on executive tyranny under the banner of defeating international terrorism, for example, defying treaty or statutory prohibitions on torture or indefinitely detaining United States citizens as illegal combatants on the president’s say-so.
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.

—
[Via BoingBoing.]

I wonder how he’ll explain away this:

In 2004 and 2005, Bush repeatedly argued that the controversial Patriot Act package of anti-terrorism laws safeguards civil liberties because US authorities still need a warrant to tap telephones in the United States.
“Any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order,” he said on April 20, 2004 in Buffalo, New York.

Except when it doesn’t, apparently.

UPDATE: OK, so this is now revealed as a hoax. But it has led many people to come forward with their own stories of similar incidents – see Juan Cole’s piece here.
UPDATE: Over at BoingBoing there’s a lively debate about whether this is actually a hoax.
It’s a lousy time to study 20th century history in the USA. Case in point:

A senior at UMass Dartmouth was visited by federal agents two months ago, after he requested a copy of Mao Tse-Tung’s tome on Communism called “The Little Red Book.”
Two history professors at UMass Dartmouth, Brian Glyn Williams and Robert Pontbriand, said the student told them he requested the book through the UMass Dartmouth library’s interlibrary loan program.
The student, who was completing a research paper on Communism for Professor Pontbriand’s class on fascism and totalitarianism, filled out a form for the request, leaving his name, address, phone number and Social Security number. He was later visited at his parents’ home in New Bedford by two agents of the Department of Homeland Security, the professors said.

Quite apart from the intimations of “1984”, I can’t help but be appalled at the extraordinary inefficiency, wastefulness, and pointlessness of the whole effort. Of course chasing student inter-library loans is a good way of creating a public illusion of frantic activity, and it’s a lot easier than actually figuring out how to secure the homeland.
UPDATE: Over at Boing Boing they’ve pointed out that this terrorist document is available from Amazon.com. I think we should each buy a copy and then invite the young men from the DHS [why do I always visualize them as Mormon missionaries?] over for a nice cup of tea and a sit-down.

No, not that George – George Washington.
I’ve been reading a lengthy thread over at the Volokh Conspiracy about the constitutionality of Bush’s authorization of domestic wiretapping by the NSA. The debate has followed fairly predictable lines between essentialists and consequentialists, but one item stood out. The contributor Medis was interpreting Article 1, Section 8 of the U.S. Constitution, and (s)he noted:

As an aside, I note that one of the first things George Washington did when he was appointed commander of the Continental Army was ask for the Continental Congress to provide Articles of War based on the British Articles of War (which in turn were based on Roman Articles of War). He believed that such regulations gave the British (and the Romans before them) an advantage in conducting war, and he wanted the same advantage for his forces.

He actually later complained about the Articles of War passed by the Continental Congress, citing various insufficiencies. At that point, however, he did not decide to simply ignore Congress and make his own rules. Instead, he went back to the Continental Congress and asked them to pass new, better, Articles of War.

Finally, as the first President (and thus the first Commander in Chief), Washington once again asked the First Congress to pass a law adopting the (new) Articles of War that had regulated his forces in the Revolutionary War. Apparently, this person who had commanded our armed forces in what is still the most important war in the history of our country, and in many respects the war which had become the most desperate at times, nonetheless thought, based on his own experience, that Congress should be providing rules to regulate the conduct of the armed forces.

What a difference from today’s George, who seems to think that being Commander in Chief in an undeclared war means that all legal constraints are optional. As Medis observed elsewhere in the same thread:

And I agree with another commentator that if it is true that the Administration deliberately did not seek action in Congress on this issue because of “political risk”, we again encounter a very frightening principle–that somehow we can’t “risk” operating as a democracy during war. Again, that can’t be right: except perhaps when it is impossible to seek new legislation given emergency time constraints, the President has a duty to faithfully execute the existing laws until those laws are actually changed, even during war.