Saturday, June 24, 2006

Constitutional Abuses and Political Expediency

This article from James Bovard in the American Conservative magazine about the Bush administration's various "terrorist surveillance programs" was posted before the NY Times and the Wall Street Journal revealed that the federal government is also tracking financial records of thousands of Americans. After those revelations this week, the Bovard article is even more important:

The National Security Agency has been tracking the calls of millions of Americans and constructing the “largest database ever assembled in the world,” USA Today revealed on May 10. The nation’s biggest telephone companies have apparently turned over masses of personal records to the feds, allowing Uncle Sam to build up a database of the phone numbers of incoming and outgoing calls of Americans. The revelations blew to smithereens the Bush administration’s story that only international calls were being tapped without a warrant as part of its so-called “terrorist-surveillance program.”

Bush announced on the day the story came out, “The intelligence activities I authorized are lawful.” However, this may be the result of Cheney logic—that the Supreme Commander has the right to do whatever he feels necessary to protect the public. (The New York Times noted that Cheney and his top aides had been the most aggressive advocates of warrantless wiretaps and rounding up Americans’ phone data.)

In his weekly radio address two days later, Bush sought to quell the controversy: “This week, new claims have been made about other ways we are tracking down al-Qaeda to prevent attacks on America.” Yet unless one considers every American presumptively an al-Qaeda accomplice, the domestic phone intercepts have nothing to do with tracking down al-Qaeda. Bush also declared, “We are not trolling through the personal lives of millions of innocent Americans.” Unless the vast majority of Americans are guilty, there is no way to assert that the feds are not trolling through millions of innocent people’s lives.


The administration’s credibility is also undermined by its tactics to suppress independent evaluation or investigation of its surveillance. The White House has continuously insisted that its terrorist-surveillance program has been thoroughly reviewed by the Justice Department to determine its legality. (Prior to the Bush administration, the courts, not federal agencies, were supposed to be arbiters of the lawfulness of agencies’ actions.) But on May 10, Congress was notified that the Bush administration had effectively scuttled an investigation by the Justice Department’s Office of Professional Responsibility (OPR), the agency’s watchdog, into “whether DOJ lawyers had behaved unethically by interpreting the law too aggressively—by giving a legal green light to coercive interrogations and warrantless eavesdropping,” as Newsweek reported. The Bush administration thwarted the investigation by refusing to grant security clearances to the lawyers investigating the department’s actions. Attorney General Gonzales announced that the OPR investigation was unnecessary because the department had already decided the warrantless wiretaps were legal—despite the objections of Deputy Attorney General James Comey and at least one Foreign Intelligence Surveillance Court judge. Gonzales explained, “We don’t want to be talking so much about the program that we compromise the effectiveness.” He offered no evidence that the OPR had been infiltrated by al-Qaeda.

The Bush team is counting on the “national security” invocation to provide a get-out-of-jail card for any abuses. The Justice Department sought to get a federal judge to dismiss much of the EFF lawsuit, claiming that “the lawfulness of the alleged activities cannot be determined without a full factual record, and that record cannot be made without seriously compromising U.S. national security interests.” Thus, it is no longer safe to permit Americans to know what the government is up to. National security requires that the government have unlimited right to deceive the American people about how far it is intruding into their lives. EFF lawyer Kevin Bankston observed that the feds are “basically saying that no one could ever go to court to stop illegal surveillance so long as they claim it’s for national security. It leaves them completely unaccountable and leaves the communications companies that are colluding with them unaccountable.”

It is amusing to see Republican stalwarts and media stooges pooh-pooh concerns about the feds tracking each citizen’s phone calls. But how would the White House react if someone acquired and published all the records of incoming and outgoing calls to Karl Rove? Creating a database of all the phone calls made and taken by members of Congress could be helpful in future bribery and corruption scandals. Yet there is no chance in Hades that representatives and senators would ever permit other Americans to see such personal data—while many congressmen sneer at citizens who don’t want the feds to have such data on them.

Unfortunately, most Americans seem incapable of recognizing the danger of permitting politicians and government agents to compile dossiers on their personal lives.


Americans do not understand the implicit Miranda warning on any such surveillance scheme: any information the feds stockpile can be used against people the government does not like—or people the government seeks to silence or suppress. If Americans acquiesce to the feds warehousing their phone-call data, this will simply encourage the seizure of far more personal information. (The NSA indicated that the calling data is being shared with other federal agencies.)

The media reaction has been short and relatively mild. This is appalling, considering that the FBI appears to be using National Security Letter subpoenas (authorized by the Patriot Act) to round up the calling data of journalists suspected of having received leaks on CIA abuses. ABC News reporter Brian Ross suggested on his blog that the feds are tracking the calls of numerous newspaper and TV reporters to determine who was receiving leaks from government officials. Perhaps some journalists are afraid to criticize the government or perhaps they fear losing access to government officials—or perhaps they simply don’t give a damn.

The latest revelations are not the end of the story. Instead, they are simply one in a series of revelations of the feds ignoring both the statute book and the Constitution. Former NSA intelligence officer Russ Tice warned that people “are only seeing the tip of the iceberg” of domestic-surveillance abuses. Seymour Hersh reports in the new issue of The New Yorker that a government consultant informed him that “tens of thousands have had their calls monitored in one way or the other,” including the use of computers to listen for key words in their conversations.

The roundup of domestic calling records is part of a pattern of aggressive seizures of information by the Bush administration, which successfully pressured America Online and MSN to turn over the records of how millions of people had used their computer search engines. Google resisted similar federal demands, but the feds recently turned up the heat. The Justice Department claims the information is necessary to produce evidence to justify reintroducing the Child Online Protection Act, which has been struck down as unconstitutional by the Supreme Court. Technology expert John Dvorak suggests that it is plausible that the government is gathering up the search histories for purposes unrelated to child-porn crackdowns.

The combination of the phone-call data and the online-search records would go a long way to creating Total Information Awareness (TIA). When the Bush administration first pushed TIA as a ticket to safety in 2002, a public uproar awoke Congress and forced the administration to formally shelve efforts to track almost every area of people’s lives. But the feds apparently ignored any congressional orders to cease and desist.

The terrorist surveillance program is the result of a personal edict issued by the president. What other National Security Presidential Directives might Bush have issued? How many laws must be violated before citizens recognize that the government is fundamentally lawless?

I say again: if this were the Clinton administration aggressively collecting phone call records, online search records, and financial transactions of millions and millions of Americans and suppressing any kind of independent review of those programs, the very members of the GOP now declaring these Bush administration programs legal and necessary would be screaming "Unconstitutional!!!" and "Black Helicopters!!!"

The GOP defense of these programs is both cynical and hypocritical and it all comes down to "Whatever my party's preznit does is okay by me as long as it helps my incumbency."

And that's why it is so refreshing to read The American Conservative magazine. As a progressive, I do not always agree with the points of view expressed in the magazine. But I do appreciate the intellectual honesty and the principled stands taken by the editorial staff and the writers in the magazine.

At least they stand for something other than political expediency.


Just out of curiosity, what are your views on gun control as they pertain to the Constitution?
I have no problem with gun ownership, bazookas, automatic weapons and the like being excluded, of course.

I will say this about gun control, however. Living in NYC, it is very difficult to own a gun legally because of gun control laws. The stronger the gun control laws have gotten in NYC, the lower the crime has gotten (including the murder rate.) There's no direct correlation, of course. Crime prevention strategies, police presence, demographic changes, even the waning of the crack epidemic have helped to lower crime. But the NYPD, the police commissioners and both recent NYC mayors (Rudy and Bloomberg) are big proponents of gun control laws. They believe the less guns on the streets, the safer the streets.

Of course, I can also understand why American citizens would be leary of giving up their arms, especially these days as Big Brother intrudes on nearly every part of a citizen's life.

I think each municipality ought to be able to make their own laws on guns. What works for NYC may not work for rural, suburban, exurban, or smaller urban areas. I think the Constitution allows for this, yes?

Explain how the Constitution allows for each municipality to make their own laws on guns.
I'm no Second Amendment expert. Wikipedia says this about Current Judicial Precedence on the Second Amendment:

"At present, with certain exceptions and disputes, the courts generally find it acceptable under the Second Amendment for federal, state and local juridictions to:

* Regulate or not regulate militias
* Enact, or not enact, child-safety lock legislation
* Ban or permit handgun possession
* Regulate or not regulate handgun possession
* Prohibit or allow the carrying of concealed firearms and/or weapons
* Regulate or not regulate the carrying of concealed firearms and/or weapons
* Ban or permit assault weapons
* Prohibit possession of firearms by persons who have been:

1. Involuntarily committed to a mental institution
2. Convicted of a felony
3. Convicted of a misdemeanor crime of domestic violence [59][60] or not, as in one jurisdiction the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence law was ruled a violation of the 2nd and 5th Amendments and was ruled unconstitutional for two years [61] though that decision was reversed on appeal [62] and the Supreme Court has not granted certiorari
4. Convicted of a misdemeanor crime of domestic violence and in the military, and being unable as a soldier in uniform to handle any weapons, although per Department of Defense policy, crew-served weapons such as tanks, missiles, and aircraft are exempt from the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence law and may be handled or used by a soldier previously-convicted of a crime of domestic violence [63] despite the same individual not being allowed to handle or use a pistol. For additional information see Department of Justice publication (CRM 1117).
5. Dishonorably discharged from the military

* Require the licensing of firearms dealers
* Ban or regulate bombs, artillery, and explosives
* Require or not require the registration of firearms
* Ban or permit the possession of firearms and ammunition on county-owned property
* Ban or not ban the possession of weapons of any kind on Federal property (Although weapons are generally banned on most Federal property, National Parks in some parts of Alaska encourage hikers to carry firearms for protection against wild animals. [64]< )
* Prohibit firearm possession anywhere in licensed liquor establishments, or to prohibit firearm possessions only in the bar areas of some businesses, or to permit the carry of concealed weapons in any facility other than Federal facilities
* Require or not require handgun owner identification cards
* Require or not require the presentation of identification prior to buying ammunition
* Ban or permit ballistic fingerprinting databases

These precedences are variable and are generally not settled [65], and are mostly permitted to be ruled according to local law, as the Federal District courts have not ruled unformly either for and against various forms of several of these provisions, and the Supreme Court has not yet ruled uniformly. Although the courts permit laws and regulations as itemized above, that is not meant to imply that all jurisdictions have these laws, as they do not. For example, most jurisdictions do not require handgun owner identification cards, nor do they require the presentation of any identification to buy ammunition."

As with much of U.S. legal precedent, there is tension here between state's rights and federal power. Nonetheless, it seems to me that the precedent has been to allow separate jurisdictions to make their own provisions, thus allowing muncipalities to amke their own provisions.

Do you think that current jurisprudence should usurp the original intent of the founding fathers?
As a side note, it should be taken into consideration that the SCOTUS has in fact ruled on the Second Amendment and its decision can be found in U.S. v. Miller. A thorough reading of this decision almost wholly invalidates the Wikipedia definition. This is one of the reasons that I no longer rely on or accept Wikipedia as a credible source.
That is the rub of it, isn't it? What was the original intent of the framers when they wrote: "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." Were they talking about militias only or were they talking about everybody's right to own weapons? What do you think about that question, arch stanton? I'm open to your response on this.

One more thing about original intent: how do you handle the original intent of the framers when circumstances have changed in the preceding two centuries? Take slavery for instance. What was the original intent of the framers on that issue and should we continue with that original intent today?

For original intent with respect to the Second Amendment to the Constitution, one can go to the Federalist papers or other writings of the founders. As for the militia, it should be noted that at the time of the drafting of the constitution the militia was considered to be every able body male capable of bearing arms. If you are really interested try this link for a start .

In terms of how I view the constitution, you could call me a textualist or strict constructionist or an originalist. (At least those are some of the things I've been accused of being in the past. lol)

So, how do you view the Constitution?

I really hope that you will engage me on this when you get back.
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