Tuesday, January 24, 2006


The question over the warrantless wiretaps comes down to this:

In wartime, does the Presidency have powers that supersede Congress's laws?

Many people haven't focused on this yet - bogged down in either this one specific question of the wiretaps while ignoring the several other instances of Bush claiming this right (see the McCain amendment signing), or arguing the minutiae of that particular Congressional act, or arguing that other people did other things like that (see Lincoln, FDR).

For the record, yes, other Presidents have done acts that were illegal at the time. Lincoln did suspend habeas corpus, when the Constitution says only Congress can do this. FDR rounded up people of Japanese ancestry and had them imprisoned in violation of several laws, and declared what could be called rigged military tribunals would be the court of choice in one case as well. Was there a difference between those acts and Bush's? As of now, one - both acts happened in an actual, declared war. Also, Congress approved Lincoln's appropriation of their power in 1863, and one of FDR's powers (military tribunals) in one particular case was affirmed by the Supreme Court in Ex Parte Quirin (which has been called badly decided by some judges and commentators), so the President's act in questions were given kind of ex post facto justification. Of course, this may happen in the current wiretap case as well.

In this case, the Congressional Research Service has found that Bush's justifications for the wiretaps don't match with current law, and that Bush didn't fully inform Congress as required. In other words, there seems to be no questions that barring any new findings, Bush did violate the law in the wiretapping, regardless of what other Presidents did or what they claim the Congressional act allowed or etc. - and we can safely ignore the Justice Department's findings, unless "conflict of interest" has been redefined.

So the question now is: Can the President assert supra-legal powers in wartime?

The past has shown he can. In both most often mentioned cases, the Presidents did trample the Constitution, and were not impeached for it. In both cases, they received after-the-fact approval and power (for FDR, in that one case only as far as I know). However, the past is not the straitjacket of the present.

If Bush were to decide that every American should be wiretapped on the chance they would come in contact with a terrorist, that would possibly be within his power during wartime and possibly would be less egregious than some of Lincoln's acts. Yet that wouldn't make it justified. There is a dividing line between the necessary and the overreach.

In this particular case, Bush went around a historically loose court, the FISA, to allow warrants with a less stringent standard. In the words of General Hayden recently, a "reasonable basis to believe" vs. "probable cause". Probable cause is roughly defined to be "good reason to believe that the search will turn up evidence of crime." And FISA gives much leeway to the agent requesting the warrant, not to mention the 72 hour allowance before even applying for a warrant. This doesn't seem to be a very tough case to make.

But let's say it is. For whatever reason, these standards are too onerous in the undeclared war on terrorism. Will this allow the warrantless wiretaps?

At first, maybe. Given the complaints from the FBI that the tips gained were worthless, and taking into consideration that the pre-9/11 problem was not too little information but too little comprehension of too much information, I will not grant an absolute yes here. But let's say maybe it was enough - at first. But going on five years since?

At some point, you have to ask if this was such a problem, why was there no effort to change the requirements needed for a FISA warrant? There have been some debates that Congress can't pass a law allowing a lower standard than "probable cause" as per the 4th Amendment, but there could have been allowances for, say, longer notification times or more deference to the requesting agent. There were workarounds. Yet the Bush Admin. made no effort to make any workarounds.

So Bush found the already loose requirements of the FISA too strict and authorized warrantless taps, never tried to fix the supposed underlying problems with the requirements, never authorized Congress as required by law, and even when they knew the New York Times had the story for over a year before printing it made no effort to change the law even then. These are not the actions of a President who feels that some law as written isn't sufficient for needed protection and can be amended later; these are the actions of a President who feels that some law as written simply doesn't apply to him at all and therefore needs no amending or changing.

The same could be said of FDR and Lincoln, but they eventually did receive some allowances from the courts or Congress in their action. I do not know if the current Congress will be so understanding, and I am not sure I would want them to be. In my case, it comes down to trust, and I don't trust Bush with this power, given his signing amendment in the McCain anti-torture act and others. I also include in my thinking the recent ACLU lawsuit alleging that Christopher Hitchens, among many others, were targeted by warrantless wiretaps.

And my final reason to deny this power to Bush - to allow him to skip warrants - is this:

We are in a war where almost any means could be justified for the amorphous idea of "protection". Camps for people following Islam, taps on all international calls, taps on all calls domestically that may include trigger words, data sieves on all Internet accounts...you can think of many things that could help. This does not mean they should be done, or need to be done. There is a balance, and I don't feel the Bush Admin - nor any future ones - can place this act on the seesaw without overbalancing away from privacy rights and into a police state. After all, a reasonable basis to believe depends on some person's reason, and in an era of fear, reason can be very unbalanced.

Tuesday, January 17, 2006


My wonderful wife got me the first two seasons of The West Wing for Christmas, and it was quite a revelation to go back and see how good it was then. I remembered watching the premiere and telling my wife that it was too good to last, but it did. Later on, after Sorkin and Schlamme left, I thought it was too bad to last, but it did. But going back and seeing the first ones I'm amazed at how many things they did - hints, characters neatly introduced to come back and play roles later, lots of stuff I missed the first time around. It's not quite as good as Babylon 5 was at introducing things to play a role later (the kind of stuff you remember and go, "Wow! That's what that meant!") but it certainly was better than most shows.

Speaking of Babylon 5, I finally got the whole set and the movies as well on DVD. This is one of the best TV series ever, in my opinion, and the DVDs give you some extras as well - but I probably would have gotten the set even without the extras.

I know most people already know about this graphic novel - I never claim to be cutting edge - but Watchmen is a classic. If you've never read it, go and do so. It's got a great story, some of the images are unforgettable, and when you go back and read it again you'll find so many things you missed the first time around.

Friday, January 06, 2006

Spies Like Us

I think one question that needs to be asked about all the defenders of Bush's recently revealed warrantless taps is a simple one:

If Clinton had done it under the exact same circumstances, would they have complained?

Call me cynical, but I can see many of them short-circuiting their microphones from all the spittle they would have emitted. They would have whipped up enough froth to furnish all of Starbucks's cappuchinos worldwide for six months. Special Reports with titles like "Democratic Nixon" and "Traitor or Madman?" would have been splashed across the TV screens with near orgasmic frenzy and enjoyment. And in the midst of this all, Bill Bennet would have stated "Well, if you bugged all the black people, you could really get a lot of drug arrests."

Dispensing with the near certain hypocrisy shown by many talking mouths and empty brains, let's ask some other questions.

Was it neccesary to circumvent the law? For how long? Once you knew there was a problem, why was there never an attempt to fix the problem instead of dodging the issue? Did Bush have that little confidence that the Republican controlled Congress would agree with him? Does this mean they're off his Christmas card list?

If, as claimed, Bush did brief Congress, why has no Republicans come forward and confirmed this? I've seen many Democrats say it was a fiat accompli at best and little information was given anyway, but I can't recall any Republicans coming forward and stating that they were told fully and completely what was going on. Was there a super-duper double pinky swear of silence?

DID it help? Or was it something that may help someday? Or was it just something really cool to do?

Is this act and others from the President (i.e. stating he doesn't feel he needs to follow the McCain Amendment) a statement that he feels the Presidency is above the law? And has he gotten fitted for a crown yet if so? Do we need to exorcise the ghost of Nixon from the White House?

Was he within his right to do this? Why doesn't the Congressional Research Service think so? Does the CRS matter to Bush? Would it have mattered had they agreed with him?

Wishing for the right hoarse throats

The only good thing about Pat Robertson speaking is the constant affirmation about his mental state - Terri Schaivo all the way. I assume you've all heard Patsie claim God gave the thumbs-up for Ariel Sharon's stroke and was also apparently in favor of Rabin's assassination as well. The good news is that God apparently zoned Israel for recreation parks, though, so we got Dominionist Disney Land coming. I can't wait for the mascot Bible-Thumping Boaz, and the ride of The Passion of the Christ (you must be THIS HIGH to be crucified). The product tie-ins should be wonderful as well - I can see T-shirts saying "The Holy Land Cafeteria - try our fish and bread!" or "I helped bring about the second Coming and all I got was this lousy T-shirt". I hope they don't put up a temple though..."Den of Thieves 2 - This Time It's Personal! Starring James Calavizel as Jesus and Rob Schiender as Judas."

Let's be frank here - Pat's nuts. He calls for assassinating Hugo Chavez and then frantically tries to backtrack out of it, saying a lot about his convictions to tell the truth; tells Dover they voted God out when they rejected IDiocy; called a hurricane to hit Florida in response to "Gay Day"; claimed Bush would win in a landslide in 2004, a claim that the Bush people themselves seemed to believe they DID given the claims of "mandate" tossed around; and now says that God gave Ariel Sharon a stroke and let Yitzhak Rabin be killed as well since they "divided his land" (although the verse I read from the KJV says "[2] I will also gather all nations, and will bring them down into the valley of Jehoshaphat, and will plead with them there for my people and for my heritage Israel, whom they have scattered among the nations, and parted my land." A stroke is a PLEA? Damn, what's a demand, fire and brimstone? Read Chapter 3 of Joel as well and see if any of the other claims came true when we weren't looking - mountains dripping wine (we have a lovely Mount Ebal rose, or would you prefer the Mount of Olives retsina?), hills flowing with milk (dad! we got a skimalanche!), rivers flowing with water...okay, maybe one of three)...if you had Pat for a family member around Thanksgiving, there'd be some serious debating about whether to lose his card in the mail.

So, given the fact that Pat's insane...where's the condemnation? Where are the other evangelists coming out and saying, "Um, Pat? Not so much." Where's the Republican politicians coming out and saying, "We disagree with the Good Patsie that God struck down Sharon out of anger." Has Bush come forward and said, "Pat can have his opinion - it isn't mine."

Hasn't happened yet. May not happen.

This is a big problem for evangelicals - one of the major voices for them is as appropriate as Bill Clinton for a Fidelity program, or Bill Bennet for gambling reform. A bigger problem is that few of them step forward and SAY so. Sojourners and Christian Alliance have done so in the past, and been roundly condemned by Patsie and his ilk for being un-Christian and the like. (Because people who oppose a lunatic in charge are tools of the devil, of course, because the voices in the lunatic's head said so.)

So, why is it the voices that NEED to speak up have suddenly gone silent, and the ones that should shut up are still yapping? I think that question needs to be answered, and soon.