Finally, we have a presidency that really listens to Americans.
The New York Times is unfolding this story after sitting on it for at least a year. (See my colleagues Syd Schanberg and Nat Hentoff for recent riffs on the subject.)
But here's something you may have forgotten: This scary threat to our civil liberties -- domestic eavesdropping without warrants -- is directly descended from the work of Jerry Bremer, later the Bush regime's preposterous pasha of Iraq.
You have to go back to the Clinton era, when Congress took time out from examining the president's semen stains to authorize a National Commission on Terrorism. Its chair was Jerry Bremer. Its final report, "Countering the Changing Threat of International Terrorism," was released in June 2000, long before 9-11.
Bremer urged the unleashing of our spy agencies. That happened. To his credit, he warned that unless there was "contingency planning," there would be a conflict with civil liberties. But he delivered that warning only verbally. To his discredit, there was no mention of civil liberties in the commission's final report.
In case you're wondering, the report warned of terrorist threats to the U.S. from Iran, Afghanistan, and Syria and even cautioned about Pakistan and Greece. But the words "Iraq" or "Saddam Hussein" are never mentioned once. At all. Never.
However, the National Security Agency, current focus of the unconstitutional spying on Americans, is mentioned. The report urged that we unshackle our spy agencies to gather more and more intelligence. Nowhere in the document is there a specific recommendation to authorize the NSA to spy on Americans.
The above was noted by Jonah and it's from Ward Harkavy's "They Really Bug Us" (Village Voice). It's indymedia roundup and this entry focuses on governmental spying. We also have another Village Voice highlight from Jonah at the end of the entry. The bulk of the e-mails I've read thus far speak of the depression over the Alito hearings.
I won't say, "Get over it." Feel what you're feeling. If you're feeling let down, I am too. When you've explored that, think about taking part in the fight that should have happened on the committee but didn't. (And check out this link which we'll highlight in the next entry as well.)
But win or lose on the Alito battle (and obviously, I'd like to see a win), their are other battles as well and maybe we can use our frustration over Alito to demand more from our elected officials on other issues. (And, quoting Laura Flanders, "Don't leave politics to the politicians.")
Rachel notes a victory in one aspect of government clampdowns on freedoms via FreeWheels' "Judge Finds NYC Parade Permit Law Unconstitutional: 'Critical Mass' Bikers' Charges Dismissed" (NYC Indymedia):
Yesterday, New York City Criminal Court Judge Gerald Harris decided that the City’s parade permit law is "hopelessly overbroad" and "'constitutes a burden on free expression that is more than the First Amendment can bear.'" Judge Harris's written Verdict in People v. Bezjak, et al. dismissed the parading without a permit charges against all of the 8 people who were arrested on the night of the January 2005 Critical Mass bicycle ride, but held each guilty of disorderly conduct, a verdict the cyclists may consider appealing.
"The City has arrested and prosecuted over 2,000 people since August of 2004 for violating a law this Decision clearly finds unconstitutional on its face," said Gideon Oliver, the cyclists' attorney.
Oliver "challenged the City to reconsider its aggressive stance toward policing First Amendment activities in general, and Critical Mass bicycle rides in particular" in light of the 17-page Verdict. According to Bruce Bentley of the National Lawyers Guild, the vast majority of the 1,806 Republican National Convention arrests resulted in parading without a permit prosecutions. Since the RNC, the City has arrested almost 350 bicyclists for parading without a permit, and sought injunctions in State and Federal Courts that would subject participants in future Critical Mass rides to criminal penalties of up to a year in jail. Yesterday's Verdict offered several examples of events that appear to require a permit under the law as written in order "to highlight the virtually unfettered discretion reposed in the Police Commissioner to determine when any particular event may be found to fall within the amorphous definition of parade or procession and, thus, requires a permit."
According to the Verdict, "a person promenading, or two persons racing, . . . a funeral procession, two or three cars displaying political posters traveling one behind the other, caravan style, or a small group of friends biking together" might be required to obtain permits under the law as written. The Verdict also found the permit law is unconstitutional because even a person who "unknowingly participates in a permitless march may be arrested, fined or imprisoned. Thus, bystanders or onlookers, stirred by the passion evoked by a political march, join in at their peril."
"While some Decisions from the Criminal Court over the course of the past year have upheld the constitutionality of the permit requirement," said Oliver, "this Verdict is the first to result from a full trial, at which the Court heard 3 days’ worth of testimony from 11 NYPD Officers which it said 'highlighted deficiencies in the City’s parade permit scheme.'"
Dave Rankin, a FreeWheels Board member who assisted during the trial, said that the 8 defendants were "pleased with the vindication of their First Amendment rights." However, Rankin noted that the trials of about 30 bicyclists arrested for "parading without a permit" in February, March, April, May, June, and July of 2005 are all currently scheduled to begin later this month, and said it was "unclear whether the District Attorney's Office would consider declining to prosecute the parading without a permit charges in those cases in light of the Court's ruling."
Who's standing up while elected officials turn meek? Steve notes Mike Rhodes' "Peace Fresno Denounces Government Spying" (San Francisco Indymedia):
On the first day (January 9, 2006) of the US Senate Judiciary Committee hearings on Supreme Court nominee Samuel Alito, Peace Fresno held a press conference denouncing the NSA/Executive Branch Violation of Civil Liberties. Peace Fresno also announced that they expect the report from the California Attorney General, about the infiltration by law enforcement of their group, to be released this week.
Below is the text of the Peace Fresno press conference held at the new Federal Courthouse in downtown Fresno. A video of the press conference can also be viewed. The following statement was read by Peace Fresno president Lisa Solomon:
All human situations have their inconveniences. We feel those of the present but neither see nor feel those of the future; and hence we often make troublesome changes without amendment, and frequently for the worse. (Benjamin Franklin)
The executive branch of this government, maintaining its attitude and belief that it is superior to all other branches of government and the will of the people, has admitted that it has engaged in the monitoring of communications made by American citizens. Such actions have been taken in the President's ongoing "war on terror" and criticisms of such actions have been denounced as statements made by those who support the "enemy".
Yet contrary to the opinions of constitutional scholars, members of Congress and the judiciary, the President does not believe that he or his administration has engaged in any illegal or unconstitutional activity.
Those in power have tried to convince us that such violation of standing federal laws is necessary to protect American citizens from future attacks, that they are only focusing on people of interest and communications involving individuals contacting others in the Middle East. Yet, by the administration's own stated belief, this is supposedly a world-wide war on terror, which leads many people to believe that such monitoring of communications could be expanded to involve anyone who talks, writes or emails anyone anywhere in the world. How many of us living in the Central Valley today have friends or relatives living or traveling abroad? How willing are we to have our conversations monitored by the government?
We are here today to add our voices to those calling for an end to such actions, demanding that the checks and balances between the branches of government written into our constitution be used to protect the rights of all citizens, that the government act in a transparent and legal manner demanded by reasonable citizens of this country.
It is the process of checks and balances that has maintained our level of freedom and the continuation of a democratic form of government in this country for over 218 years. The concept that no one branch of government could be, or would be, more powerful than the other two, is a process that this administration has been advocating for other countries around the world, yet refuses to abide by here at home.
Brandon asked that we note this section from Elizabeth Holtzman's "The Impeachment of George W. Bush" (The Nation):
While many facts about these wiretaps are unknown, it now appears that thousands of calls were monitored and that the information obtained may have been widely circulated among federal agencies. It also appears that a number of government officials considered the warrantless wiretaps of dubious legality. Reportedly, several people in the National Security Agency refused to participate in them, and a deputy attorney general even declined to sign off on some aspects of these wiretaps. The special FISA court has raised concerns as well, and a judge on that court has resigned, apparently in protest.
FISA was enacted in 1978, against the backdrop of Watergate, to prevent the widespread abuses in domestic surveillance that were disclosed in Congressional hearings. Among his other abuses of power, President Nixon ordered the FBI to conduct warrantless wiretaps of seventeen journalists and White House staffers. Although Nixon claimed the wiretaps were done for national security purposes, they were undertaken for political purposes and were illegal. Just as Bush's warrantless wiretaps grew out of the 9/11 attacks, Nixon's illegal wiretaps grew out of the Vietnam War and the opposition to it. In fact, the first illegal Nixon wiretap was of a reporter who, in 1969, revealed the secret bombing of Cambodia, a program that President Nixon wanted to hide from the American people and Congress. Nixon's illegal wiretaps formed one of the many grounds for the articles of impeachment voted against him by a bipartisan majority of the House Judiciary Committee.
Congress explicitly intended FISA to strike a balance between the legitimate requirements of national security on the one hand and the need both to protect against presidential abuses and to safeguard personal privacy on the other. From Watergate, Congress knew that a President was fully capable of wiretapping under a false claim of national security. That is why the law requires court review of national security wiretaps. Congress understood that because of the huge invasion of privacy involved in wiretaps, there should be checks in place on the executive branch to protect against overzealous and unnecessary wiretapping. At the same time, Congress created special procedures to facilitate obtaining these warrants when justified. Congress also recognized the need for emergency action: The President was given the power to start a wiretap without a warrant as long as court permission was obtained within three days.
FISA can scarcely be claimed to create any obstacle to justified national security wiretaps. Since 1978, when the law was enacted, more than 10,000 national security warrants have been approved by the FISA court; only four have been turned down.
Two legal arguments have been offered for the President's right to violate the law, both of which have been seriously questioned by members of Congress of both parties and by the nonpartisan Congressional Research Service in a recent analysis. The first--highly dangerous in its sweep and implications--is that the President has the constitutional right as Commander in Chief to break any US law on the grounds of national security. As the CRS analysis points out, the Supreme Court has never upheld the President's right to do this in the area of wiretapping, nor has it ever granted the President a "monopoly over war-powers" or recognized him as "Commander in Chief of the country" as opposed to Commander in Chief of the Army and Navy. If the President is permitted to break the law on wiretapping on his own say-so, then a President can break any other law on his own say-so--a formula for dictatorship. This is not a theoretical danger: President Bush has recently claimed the right as Commander in Chief to violate the McCain amendment banning torture and degrading treatment of detainees. Nor is the requirement that national security be at stake any safeguard. We saw in Watergate how President Nixon falsely and cynically used that argument to cover up ordinary crimes and political misdeeds.
Ours is a government of limited power. We learn in elementary school the concept of checks and balances. Those checks do not vanish in wartime; the President's role as Commander in Chief does not swallow up Congress's powers or the Bill of Rights. Given the framers' skepticism about executive power and warmaking--there was no functional standing army at the beginning of the nation, so the President's powers as Commander in Chief depended on Congress's willingness to create and expand an army--it is impossible to find in the Constitution unilateral presidential authority to act against US citizens in a way that violates US laws, even in wartime. As Justice Sandra Day O'Connor recently wrote, "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens."
That's the second time we've noted Elizabeth Holtzman's article. If you found a section of it that especially spoke to you, please note it and we'll provide another excerpt. It's an important article.
Lastly, back to Jonah for his second pick, Nat Hentoff's "George Bush: Master Spy" (Village Voice):
Abraham Lincoln publicly suspended habeas corpus during the Civil War and was told posthumously by the Supreme Court (Ex parte Milligan, 1866) that he had acted unconstitutionally. George W. Bush, in the war on terrorism, has secretly suspended the Fourth Amendment, with the complicity of private telecommunications companies. With John Roberts on the Supreme Court and Samuel Alito likely to be confirmed, it may be a long time before this administration is held accountable for this and other pillaging of the Bill of Rights. If the next administration continues in this vein, more of our liberties will turn into relics.
The Democratic Party has a huge responsibility in its choice of a candidate for the presidency in 2008.
As Bruce Schneier, chief technology officer of Counterpane Internet Security--and the author of Beyond Fear: Thinking Sensibly About Security in an Uncertain World--wrote in the December 21 Minneapolis Star Tribune:
"Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to be president, whether it be Dick Cheney or Hillary Rodham Clinton . . . "
Meanwhile, the president and his apologists keep insisting that Bush had the approval of Congress for this omnivorous spying--even though his "inherent executive power" as commander in chief presumably didn't require that courtesy. After all, right after 9-11, Bush claimed, Congress gave him the authority to use military force against the terrorists. But as Democratic senator Russ Feingold, of Wisconsin, instructed him, and us, in a letter in the December 29 Wall Street Journal:
"Members of Congress, even in the shadow of Sept. 11, did not think that the military force resolution was giving the president blanket authority to order warrantless wiretaps of American citizens on American soil. Congress has not granted the president that power, nor has he requested it [of Congress]."
But, says Bush--in due respect to the separation of powers—he did consult certain members of Congress about unfettered NSA spying. Answers Russ Feingold:
"Informing a handful of congressional leaders who are prohibited from discussing what they have been told is not oversight, and congressional inaction under these extraordinary circumstances is not approval."
How about Russ Feingold for president? Or if that seems too precipitous a step, it would be very useful for the Democratic Party and the nation to have a debate on the extent of constitutional executive powers -- between Russ Feingold and Hillary Rodham Clinton!
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