Carol Platt Liebau: At the Heart of the Issue

Sunday, December 18, 2005

At the Heart of the Issue

Today, the Washington Post editorializes against the surveillance program that came to light last week.

As part of its piece, the Post writes:

The tools of foreign intelligence are not consistent with a democratic society. Americans interact with their own government through the enforcement of law. And in those limited instances in which Americans become intelligence targets, FISA exists to make sure that the agencies are not targeting people for improper reasons but have sufficient evidence that Americans are actually operating as foreign agents.

The problem is that this law -- and the Post's thinking -- is clearly geared to a pre-terrorism age, before lives could be placed in imminent risk through a threat that recruits domestic agents to carry out its work. Part of the problem is that there isn't necessarily "probable cause" to believe that every phone number in Osama Bin Laden's cell phone belongs to a terrorist. But it would be stupid, negligent and wrong not to check it out. It's the kind of thinking like that above -- where bright-line, facile distinctions are drawn between matters "domestic" and "foreign" -- that resulted in the famous Clinton "wall" . . . and culminated in 9/11.

But although it seems to assume Administration guilt, at least The Post limits its criticism largely to policy, rather than making sweeping statements that the program was clearly illegal (hello, Russ Feingold!). Here's why the Post is right in doing so:

The Fourth Amendment, according to the Supreme Court (Lewis Powell writing) forbids "domestic security surveillances . . . conducted solely within the discretion of the executive branch." Fine. But as Powell also noted, that holding didn't apply to "the president's surveillance power with respect to the activities of foreign powers, within or without this country." (See United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972)).

In other words, the Administration couldn't conduct wireless surveillance of conversations between Tim McVeigh and Larry Nichols, but conversations between Osama bin Laden and the American Taliban in Califoria are fair game, given that the latter is acting as an agent of a foreign power.

Moreover, in enacting the Foreign Intelligence Service Act or any other law, Congress cannot -- however much it wants to -- diminish the President's Constitution-given powers to act as Commander-in-Chief of the United States. The Administration has argued before, with merit, that the President has inherent power (as Commander in Chief) to conduct wireless surveillance of foreign powers and their agents. Should Congress attempt to limit those powers, it's violating separation of powers principles. It can't limit the President's powers by statute, any more than it could by statute decide, for example, that the Supreme Court won't have original jurisdiction over any controversy between two states (another power bestowed by the Constitution).

All the self-righteous big mouths proclaiming the illegality of the President's activities had better think twice, and speak with a little more caution. It's far from clear that anything wrong has gone on from a legal standpoint -- and certainly not from a policy perspective.

And as for a political matter, if the choice is between protecting Americans acting as Al Qaeda agents and protecting the rest of us from them, well, that's an easy choice, at least for the sensible majority in this country.


Blogger The Heretik said...

The problem is the President goes to war with the laws he has, not the ones he wishes he had. Thank god the president has lawyers to help him see what should be obvious to everyone

2:44 PM  
Blogger stackja1945 said...

As the USA disappears under the next attack the lawyers gather to congratulate themselves. Thank God Tojo and Hitler had lawyers to help them see what was obvious to everyone.

4:25 PM  
Blogger cloudy said...

"All the self-righteous big mouths proclaiming the illegality of the President's activities had better think twice, and speak with a little more caution. It's far from clear that anything wrong has gone on from a legal standpoint -- and certainly not from a policy perspective."

This is such a juicy statement coming from Liebau it is irresistable.

First of all, she's certainly right that all those "self-righteous bigmouths" (here she summarizes the essence of the RW Weltanshauung, about which more later) HAD better watch it. They might get spied on or worse, if they aren't already!

Here's two URLs about some of that spying that has been going on:

First, a piece about a Dartmouth Senior questioned by Department of Homeland Security agents for checking out Mao's "Little Red Book" for a college paper.

Second, a piece about extensive PENTAGON sponsored spying on the peace movement:

Matt Rothschild from The Progressive gives an account of the Pentagon spying on Quakers and grannies.

Don't forget, oh Liebaus of the world, that the Bush Administration has been doing a LOUSY job at actually going after terrorists, especially BEFORE 9/11. But, hey, remember -- THEY DON'T HAVE OSAMA'S ADDRESS BOOK TO WORK WITH, so what the hell, you go after those you can, right?

And who are those?


Get it?

OK, but there is a serious argument here. As with the Liebaus (and her clones, (like Dennis Prager and Charles Krauthammer),the likes of whose columns you can read over at in a steady stream, as well as every single defense of the numerous ones made on this blogroll in defense of torture, all using the same basic argument, is that they assume some fantastical hypothetical situation, one that simply hasn't happened and isn't going to happen that way, and then use it as if it were a hard case upon which you are reasoning what policy should be. If extreme cases supposedly make bad law (and in the hands of those with Liebauian logic, they do, but then again, so does ANY case), then hypothetical extreme-as-possible cases can only be said to make the WORST law.
Presto! An instant Liebau treat!

Let's suppose we took the throwaway example of Osama's address book as a serious example. The addresses in that book WOULD IN FACT have probable cause for investigation, WITHOUT ANY OF THE MANY CONTROVERSIAL LAWS AND POLICIES OF THE BUSH ADMINISTRATION.

The same logic as this applied in the McCarthy era, when all the HUACs and all those ridiculous federal (AND OTHER LEVELS OF GOVERNMENT) hearings and investigations into unions, universities, and the media only were used as a stick to beat down liberals and leftists alike ("self-righteous loudmouths" anyone?) and NEVER CAUGHT A SINGLE SPY. NOT ONE. Those Communist spies that were caught in the ten years after WWII were all caught by (legally) conventional means, without violations of civil liberties.

Similarly, giving broad powers to the government to combat terrorism that are used, as we can see, for domestic spying on dissidents, and to jettison centuries-old protections of basic due process rights in favor of executive fiat HAVE YET TO PROTECT US FROM JACK-S%$#*, or should I say, JACK-LIEBAU. There is no 'Osama address book' being coddled by liberals; it's no more a reality than hobbits and Narnia. That's the beauty of Repuglican politics.

And one more thing:

What really offends Liebau, whose expertise about what is legal and what is not is about like my ballet-dancing ability, is "self righteous" "bigmouths".

Let's examine that -- the first corresponds to the notion of morality, of do-gooders, of people with 'good intentions'. Hey -- YUK. Both those who serve hate and those who promote the machinery of such, and those who simply would rather 'laugh with the sinners than cry with the saints' are only too happy to stomp on civil liberties (unless they are perverted to protect harassment and abuse, while not protecting freedom of expression and organizing) and walk out on climate change conferences. It's all a bunch of do goody-goodism in defense of things like humanism and the environment that are doomed in favor of dazzlingly marketed alfa males anyway.

Then we have "bigmouths" -- you know, all those people who go around ratting and making big stinks. What is so offensive about 'bigmouths' (and note that someone might -- JUST MIGHT -- conceivably somehow consider Liebau to be a "bigmouth" but that somehow doesn't register) the the rightwing mentality is the urge to silence any views that don't aren't obedient to authority, the cacophony of freedom as opposed to the glorious harmony of voices lifted in praise of the fuhrer, DESPISE FREEDOM OF EXPRESSION, EVEN AS THEY USE IT ABUSIVELY (which is their right, as much as it is anyone else's). They despise the very notion that people can dissent, can commit 'seditious libel' (libel against the state where the greater the truth the greater the libel), and insult to the king, or the beloved (if rightwing) leader. This vision of society underlies the epithet.

Note how different this worldview is from those of progressives -- such as at Huffington Post, which invites really raunchy
reactionaries like her to come and post. NAME ONE rightwing blogsite as well-known as this which invites guest postings[columnists] from those with, say, MY point of view, or the likes of (more mildly) Tom Hayden and Noam Chomsky. Can't think of any? Well --that's because they don't like ....

BIGMOUTHS (ie dissent)

especially vulgar ones like me

cross-posted at:

5:40 PM  
Blogger Mr. Twister said...

By ordering the NSA to undertake surveillance of United States citizens without obtaining the appropriate warrants--the President clearly violated multiple section of the FISA statute.

For stackja1945 and all the other wingnuts out there, do not be mistaken about what you are buying into. Carol is selling you the White House claims that the President can, at his own discretion, ignore the laws of the Unitd States.

Under Carol's argument, the President could choose to go on national television, bite the head off of an infant, and drink its blood, without any legal consequences.

7:08 PM  

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