Enough is Enough
The Bush administration's disdain for the rule of law is becoming so readily apparent that, at some point, I suspect that even most conservatives will throw up their hands and say 'enough is enough.' This administration has claimed the right to detain U.S. citizens indefinitely without any due process whatsoever. It has claimed the right to torture people (and exercised that right) in contravention of well-established domestic laws and international treaties. It admits to engaging in ongoing surveillance of U.S. citizens in clear violation our surveillance laws. And now we learn that the administration has gained access to the phone records of nearly every American by convincing the major phone companies to commit what appear to be wholesale violations of several statutes governing communications privacy.
Just today we learn that--following 9/11--Vice President Cheney and his counsel, David Addington, asserted that the administration had the authority to conduct warrantless eavesdropping on purely domestic calls. It took pushback from the NSA itself to limit the program to calls in which one party is outside of the United States--a fact which is of little relevance from a legal perspective.
At this point, even those who are predisposed to trust President Bush are starting to realize just how disingenuous and constitutionally problematic his administration's legal theories really are. This is an administration that has disregarded well-established laws and legal understandings. It is an administration that has engaged in highly controversial activity repeatedly and in secret. And when those activities have been exposed, it has justified them by asserting legal theories it knows are highly dubious and done everything in its power to avoid having to test those theories in court.
At every step of the way, this administration has shown disdain for our constitutional separation of powers and our system of checks and balances. Congress has been misled and marginalized. The laws that it passes are ignored, circumvented, or subjected to de facto amendment through the use of signing statements. The courts haven't faired much better. They've been circumvented, kept out of the loop, and manipulated. Just this week, one of the shining stars of conservative jurisprudence quit the bench, reportedly fed up with the way he was treated by this administration.
The longer this continues, the more conservatives will realize that this is much more than a policy dispute. It's not about how aggressive we should be in fighting terror. What's at issue is how decisions should be made in this country, in a democracy. Are we a country where the president gets to decide all terrorism-related policies on his own and in secret? Or are we a country where the rule of law continues to mean something, a country where Congress and the courts play an indispensable role in determining what the law is?
I personally don't know what to make of the latest revelations about the NSA's massive data-mining of phone records. I'm not opposed in principle to the use of such data if it really can help to thwart future terrorist attacks. But I know that if such a database can be used to find terrorists in our midst, it can also be used to find out a whole lot of other things about us, and therefore the danger of abuse is high. It is simply untenable in a free society to allow such data-mining without any meaningful oversight. If we're going to live in a society where the government has real-time access to all our phone records, we need to establish a legal framework to regulate and oversee the use of that data.
But, as the CEO of Qwest put it, there is a "disinclination on the part of the authorities to use any legal process." That pretty much sums up the Bush administration's approach to everything terror-related. Enough is enough. When establishing policies that significantly affect our core civil liberties and freedoms, we need more, not less process. We need a willingness by our leaders to activate the levers of our democratic process, to seek new legislation and judicial review when it comes to difficult subjects like surveillance and data-mining. But that is exactly what this administration refuses to do.
Fortunately, reasonable conservatives are starting to get this. Mark Coffey, who is always reasonable, has an encouraging post up at his site, one I hope his conservative readers take to heart. Mark writes:
Enough is enough. It's time to have these issue settled in court.
Just today we learn that--following 9/11--Vice President Cheney and his counsel, David Addington, asserted that the administration had the authority to conduct warrantless eavesdropping on purely domestic calls. It took pushback from the NSA itself to limit the program to calls in which one party is outside of the United States--a fact which is of little relevance from a legal perspective.
At this point, even those who are predisposed to trust President Bush are starting to realize just how disingenuous and constitutionally problematic his administration's legal theories really are. This is an administration that has disregarded well-established laws and legal understandings. It is an administration that has engaged in highly controversial activity repeatedly and in secret. And when those activities have been exposed, it has justified them by asserting legal theories it knows are highly dubious and done everything in its power to avoid having to test those theories in court.
At every step of the way, this administration has shown disdain for our constitutional separation of powers and our system of checks and balances. Congress has been misled and marginalized. The laws that it passes are ignored, circumvented, or subjected to de facto amendment through the use of signing statements. The courts haven't faired much better. They've been circumvented, kept out of the loop, and manipulated. Just this week, one of the shining stars of conservative jurisprudence quit the bench, reportedly fed up with the way he was treated by this administration.
The longer this continues, the more conservatives will realize that this is much more than a policy dispute. It's not about how aggressive we should be in fighting terror. What's at issue is how decisions should be made in this country, in a democracy. Are we a country where the president gets to decide all terrorism-related policies on his own and in secret? Or are we a country where the rule of law continues to mean something, a country where Congress and the courts play an indispensable role in determining what the law is?
I personally don't know what to make of the latest revelations about the NSA's massive data-mining of phone records. I'm not opposed in principle to the use of such data if it really can help to thwart future terrorist attacks. But I know that if such a database can be used to find terrorists in our midst, it can also be used to find out a whole lot of other things about us, and therefore the danger of abuse is high. It is simply untenable in a free society to allow such data-mining without any meaningful oversight. If we're going to live in a society where the government has real-time access to all our phone records, we need to establish a legal framework to regulate and oversee the use of that data.
But, as the CEO of Qwest put it, there is a "disinclination on the part of the authorities to use any legal process." That pretty much sums up the Bush administration's approach to everything terror-related. Enough is enough. When establishing policies that significantly affect our core civil liberties and freedoms, we need more, not less process. We need a willingness by our leaders to activate the levers of our democratic process, to seek new legislation and judicial review when it comes to difficult subjects like surveillance and data-mining. But that is exactly what this administration refuses to do.
Fortunately, reasonable conservatives are starting to get this. Mark Coffey, who is always reasonable, has an encouraging post up at his site, one I hope his conservative readers take to heart. Mark writes:
I fully support the President's initiatives, at least to theThat's the message that needs to be conveyed to Bush's (few remaining) supporters. There are concerns here that transcend policy. Even if you implicitly trust Bush or genuinely believe in the merits of his policies, you have to appreciate the importance of the rule of law. As Mark says, "[t]he buck must stop somewhere, or the government will have no coherency and thus no legitimacy." And for better or worse, that place is the Supreme Court. Conservatives and liberals alike should welcome and encourage an adjudication of these issues in court. I remain confident that the administration's theories will not survive judicial scrutiny, but that's beside the point. The point is that judicial scrutiny is desperately needed.
extent that I know about them. I have not been convinced,
however, by the legal justifications put forth. Thus I
welcome any removal of doubt, even if it must be
accomplished through litigation. The principles of
Constitutionality and legality must be ensured. If the
President acted illegally in a time of national crisis and in
vigorous defense of the nation, I'm not overly concerned.
If such a state of affairs continues indefinitely, I would be
very concerned. We must operate within the law, and
within the Constitution.
I support a vigorous War on Terror. I support vigorous
surveillance. I support President Bush. I am an American,
though, and as such, my first loyalty is to the Constitution.
The President and Congress should work together to ensure
that all post-9/11 security measures are constitutional,
legal, and subject to periodic review. Failure to do so would
be a great disservice to future administrations - and
generations of Americans - to come.
Enough is enough. It's time to have these issue settled in court.
posted by A.L. at 11:56 PM
7 Comments:
You got it wrong, chimpy and his band of thieves have HIGH regards for the rule of law, AS LONG AS THEY DON'T APPLY TO THEM.
But since he is the "decider," they don't and they consider the treasury to be open to all their pals for looting.
Its not about competence or even about the smirking chimp, cheney, rove, rummy, condi, etc...
Its about the military-industrial complex that catapulted this group of losers into power via stolen elections. The real story is uncovering the truth behind 9/11 abd following the criminals money trail.
I think, in any other time, I would agree that having such issues decided by the courts would be the Constitutionally appropriate course of action.
However, it's worth remembering that the Supreme Court actually enabled what is now going on--and despite the fact that the woman whose swing vote in favor of a wholesale misappropriation of the 14th Amendment started this aberration is now having reservations about this administration--and with administration-desired changes in the composition of the courts to date, that high court, and the appeals courts, are much more likely to find, through a process of twisting logic and law, in favor of precisely the sort of behavior we are now deriding as Constitutionally proscribed.
We now have a Justice on that same Supreme Court who wrote the unitary executive policies which are at the heart of these excesses carried out by the Bush administration. Will that same Justice recuse himself from the debate out of personal and professional bias? That's no more likely than when both Scalia and Thomas failed to recuse themselves for conflicts of interest during the 2000 election litigation.
Increasingly, we have courts composed of jurists who have chosen to promote the power of the Executive rather than to bind the Executive to the limits set forth in the Constitution.
These days, I have less and less hope that the courts will be the salvation of the Constitution and the nation, but, rather, will be the destroyers of them, because so many on those courts now have greater fealty to a destructive ideology than to the law.
As far as the NSA Telephone Record mining thing goes -- what people are failing to recognize is that Telco records are probably not the only records being gathered... they're just what we know about now. Any marketing geek knows that a single record set is pretty useless, but combine several record sets -- say, telco and credit card transactions, and you have a more meaningful data set to "mine".
Even if you implicitly trust Bush or genuinely believe in the merits of his policies, you have to appreciate the importance of the rule of law. As Mark says, "[t]he buck must stop somewhere, or the government will have no coherency and thus no legitimacy."
I fear you may have stumbled upon what the corporate elite head honchos have been planning in their smoky backrooms all those years of Clintonian relative-bliss. The way to further fortify their position of control, the way to effectively neuter that-motherfucking-regulator-of-a-government, is to push into power an executive who breaks the very laws he swore to uphold with impunity thus rendering the power of law (and eventually its government) illegitmate.
Perhaps I could pitch this to Mel Gibson for his next project. Heh heh whimper...
I wholeheartedly agree. Each and every strategy and tactic to be applied against terrorism should be subject to the full democratic process of truthful public disclosure, debate, enactment into law and thorough judicial review before it is implemented.
That process cannot be subverted by specious arguments about the risk that disclosure will allow terrorists to adapt their own strategies. Trust me, that is not a real concern but merely a smokescreen, behind which Bushitler hides in order to increase his power. Today, that power may be directed only against suspected terrorists. But sooner or later, ordinary innocent Americans will feel the weight of his boot on their necks.
No true American would surrender one iota of privacy rights in aggregated phone data to concerns about terrorists’ promises to kill Americans by the millions. If, in the fight against terrorism, Americans have to deprive anyone, even self-described would-be mass murderers, of their civil liberties and human rights, then the terrorists will have won. This fight must be won while America remains firmly seated on its moral high horse, otherwise it isn’t worth winning.
Bush must be forced to recognize that there is no higher duty than obeying the law, not even protecting national security. It's not as if national security were in the same league as something like child support collection, where privacy rights have proven to interfere unacceptably in government's truest purposes.
I am especially grateful to the anonymous sources within the CIA and other federal agencies that put their devotion to a free and critical press and their distaste for what Bush is doing ahead of their sworn oaths of secrecy. They understand that there is a higher duty than obeying the law - following their consciences, showing the American people what kind of leader they have and if possible, securing his impeachment.
Keep up the good work!
Ayman Al-Zawahiri
Wow, who knew Zawahiri was so fluent in English.
Seriously, though, this kind of attitude is so destructive. First, this commenter clearly missed the point of the post. The point was not that no privacy should ever be relinguished in order to more effectively fight terrorism. In fact, I said exactly the opposite. My point was that in a democracy, important decisions have to be made within the law and through democratic processes. Sometimes that may be inconvenient. Lord knows dictators have a lot easier jobs than presidents. They don't have to worry about all those pesky laws and checks and balances. But the most important and innovative feature of our democracy was the idea that the even the president must follow the law. If we allow the president to break our laws at his discretion and in secret, we are no longer the democracy we set out to be.
Our laws, as they stand, allow for a wide range of secret surveillance and anti-terrorist activity. If the Bush administraation thinks those laws are too constricting, it is incumbent upon them to seek their revision, not just to violate them. That's not how our system of government is supposed to work. But Mr. Zawahiri, I forgive you for not understanding this. You are after all a terrorist.
Anyone who bothered to read about me would know I am fluent in English, as well as French and Arabic. Check me out in Wikipedia.
(But one thing I've noticed with pleasure is how few people in your country actually bother to read anything about us. I doubt you've even read our 1998 fatwa, which explained clearly what we were doing and why. Indeed, I have long found it amusing how many in your country struggle to prevent any linkage between our continuing efforts and Iraq, when that linkage was explicitly made in that fatwa.)
On the other hand, my medical skills have perhaps become a little dated, but one must keep one's priorities straight. Curing the world, now infested by the various forms of liberalism represented by you, Bush and your kind, is more pleasing in the sight of all-powerful Allah than curing an ailing body, the fate of which is anyway in His merciful hands.
The "forgiveness" of an infidel is at best unnecessary and at worst a grievous insult. I suggest you resume directing your insults to those you can be confident will not punish you for it, such as Bush, Rove, Cheney, and others who are so charmingly referred to by some of your readers as repugs. You do not want to be on the receiving end of a fatwa. Ask any Danish cartoonist. (If you get close enough to one to ask, don't forget there's a million dollar reward for helping us out with one of them.)
You assume I do not understand liberal democracy. To the contrary, I understand it well enough to feel confident that I can rely upon it to do much of my work for me:
A) The best chance of controlling the vast ill-gotten wealth of your doomed nation is to win elections.
B) To win elections, you must run against the party in power. It does no good to run against an external enemy.
C) This is best accomplished by convincing the electorate to fear and despise the party in power more than any enemies the nation may confront.
D) If the party in power tries to engage the real enemies, it will make mistakes and take actions that, properly exploited, can serve this purpose. Virtually any action can be demonized as illegal, dictatorial, or violative of some other norm, no matter how typical it may have been to your nation's conduct of past wars, or intrinsic it may be the the conduct of any war. No one knows for sure what your laws are until the Supreme Court has ruled, so this tactic will be available for virtually any action. And even after the Court has spoken, its decisions can run hundreds of pages and be based on divided votes, with concurrences all over the map, by judges whose appointments have been politicized enough that any decision can be delegitimized.
I think that covers all the basics of democracy I have any use for. Fear not. When the caliphate is established, any further understanding of democracy will be as unnecessary for your people as it now is for mine.
In the meantime, our media strategy should amply demonstrate our deep understanding of these elements of democratic partisanship, and has required remarkably little work on our end.
As I said before, keep up the good work!
Ayman Al-Zawahiri (and by the way, it is Dr., not Mr.)
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