Ellington

A good story in USA Today about the "scorched-earth" assault on the media's ability to hold elected officials accountable:

This month, Congress is faced with a most inconvenient crime. With the recent disclosure of a massive secret database program run by the National Security Agency involving tens of millions of innocent Americans, members are confronted with a second intelligence operation that not only lacks congressional authorization but also appears patently unlawful. In December, the public learned that the NSA was engaging in warrantless domestic surveillance of overseas communications — an operation many experts believe is a clear federal crime ordered by the president more than 30 times.

What is most striking about these programs is that they were revealed not by members of Congress but by members of the Fourth Estate: Journalists who confronted Congress with evidence of potentially illegal conduct by this president that was known to various congressional leaders.

In response, President Bush has demanded to know who will rid him of these meddlesome whistleblowers, and various devout members have rushed forth with cudgels and codes in hand.

Now, it appears Congress is finally acting — not to end alleged criminal acts by the administration, mind you, but to stop the public from learning about such alleged crimes in the future. Members are seeking to give the president the authority to continue to engage in warrantless domestic surveillance as they call for whistleblowers to be routed out. They also want new penalties to deter both reporters and their sources.

The debate has taken on a hopeful Zen-like quality for besieged politicians: If a crime occurs and no one is around to reveal it or to report it, does it really exist?

Previous Comments

ID

106035

Comment

More good stuff; by the way the article is written by law professor Jonathan Turley: In the meantime, the Bush administration has carried out a scorched-earth campaign against whistleblowers, including demanding that employees sign waivers of any confidentiality agreements with reporters and using polygraphs designed to uncover anyone speaking with the media. It has also sought to convince a federal court in Virginia to radically extend the reach of the 1917 Espionage Act to cover anyone who even hears classified information while researching or reporting on government policy. [...] t is time to separate true patriots from cringing politicians. The assertion of unchecked power by this president has created a danger to our constitutional system. Congress must demand an independent investigation of these programs. It must also pass a federal shield law and strengthen whistleblower protections to preserve the only current check on governmental abuse. It should change the federal law to prevent the abusive use of the Espionage Act, such as in the AIPAC case. Finally, it should revamp the intelligence oversight system, which has long been viewed as a pathetic paper tiger with either little interest or ability in checking abuses. The Framers gave us a free press as the final safety net if all other checks and balances in the three branches of government should fail. With the failure of both parties in Congress to exercise oversight responsibilities, the importance of a free press has been vividly demonstrated. The public now has a choice. It can live in self-imposed ignorance, or it can fight for an open society. Not hearing about alleged crimes by your government is certainly a comfort, but not having crimes occur would be an even greater one.

Author

DonnaLadd

Date

2006-05-20T11:15:44-06:00

ID

106036

Comment

Ladd-there is nothing illegal about the NSA program. The Fourth Amendment does not ban all governent searches just "unreasonable" ones. There are governmental searches which are reasonable and therefore have never required a warrent. A search that is not connected with a specific crime or is not connected to a general interest in crime control but is aimed at preventing future harm is a reasonable search. Seeking to discover a future 9/11 attack is such a search and it is the aim of the NSA secret program. In the years before 9/11 we have all been subject to random warrantless searches of our luggage at airports for bombs. It was legal then and it is legal now. The Forth Estate gave aid and comfort to our enemy and hurt the war effort by blowing the cover on this vital program and I look with anticipation when the guilty reporter will be "frog marched" to the dock for punishment along with the leaker.

Author

pneville

Date

2006-05-29T20:20:36-06:00

ID

106037

Comment

Uh, huh.

Author

DonnaLadd

Date

2006-05-29T20:22:39-06:00

ID

106038

Comment

I'm not going to bother to respond to pneville (who, like our new CIA director, doesn't seem to know what's in the Fourth Amendment), but for the benefit of others reading this: (1) The reporter will never be "frog marched." Even the Bush administration has indicated that it has no interest in punishing the reporter, or even with threatening the reporter with punishment to determine the identity of the leaker. (2) The Fourth Amendment reads as follows. I've bolded text for emphasis: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Giving the NSA power to monitor telephone communications without warrant involves the granting of general warrants--high-tech equivalents to the Writs of Assistance that the Fourth Amendment was specifically drafted to eliminate. (3) Even if the secret searches did not violate the Fourth Amendment, they would still be in violation of the Foreign Intelligence Surveillance Act (FISA) of 1978. The issue is not whether Bush violated FISA; he obviously did. The issue is whether legislative regulations like FISA should restrict the power of the executive or not. Some argue that only the Constitution and judiciary should restrict executive privilege--but even if that interpretation is correct, the absolute best one can say about spygate is that Bush ordered illegal but necessary actions as a form of civil disobedience. (4) The one part of the NSA program that may be legal is the list of telephone calls voluntarily handed over by telephone companies. There is some debate over this. (5) It would be almost impossible for any reporter to be convicted of giving "aid and comfort to the enemy" (the capital treason standard), under the press freedom clause of the First Amendment. That would be comparable to convicting members of the opposition of giving "aid and comfort to the enemy" by voting against the majority party's legislation. It's just not going to happen. Cheers, TH

Author

Tom Head

Date

2006-05-29T21:27:10-06:00

ID

106039

Comment

By the way: Does anyone find it ironic that, on a day when we celebrate those who gave their lives to protect our freedoms, some asshat logs in and swears up and down that we don't have any? Cheers, TH

Author

Tom Head

Date

2006-05-29T21:29:22-06:00

ID

106040

Comment

I was wondering who was going to bite first. ;-) No, there will be no frog-marching of reporters over this one. That's absurd. Worse is calling for such a thing in America. But I do have to somewhat admire the confidence with which he makes completely unsupported assertions of "fact." What's that quote I posted on Public Eye last week? "Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity." – Martin Luther King Jr.

Author

DonnaLadd

Date

2006-05-29T21:29:46-06:00

ID

106041

Comment

Sadder than ironic. But he probably thinks he's a patriot. Betcha money.

Author

DonnaLadd

Date

2006-05-29T21:30:24-06:00

ID

106042

Comment

I am sure he does, and now more than ever, true patriots must stand up to fascists who wrap themselves in the flag. It is generally incendiary to call another citizen a "fascist," but in this case, I believe it is entirely fair. What has happened to the Republican Party? There was a time when the Republicans distrusted government, when they held to their libertarian roots and opposed government intrusion into the private lives of Americans. I suppose that Nixon, that paranoid opportunist, steered the party away from decency long ago, but the desperate salutes of Republicans now are an embarrassment to all Americans and Republicans in particular. Let them continue to salute; no one takes chicken hawks seriously. The media will continue to print the TRUTH about what this administration is doing in the name of protecting us--fascists always present themselves as protecting the volk from contamination as they seize power. The administration can launch all the investigations it wants, but it won't keep Karl Rove from being indicted for leaking the name of a CIA agent in time of war to Robert Novak. It won't prevent the Democrats from winning a majority in November, and it won't stop the long-overdue subpoenas that will issue forth from Congress in the months that follow. It will not, in the end, prevent us from learning the awful truth about how shamelessly corrupt the Bush administration is. We remain a nation of laws, and the law will ultimately bring both Bush and the Republicans to their knees. Even a nation as confused as the U.S. still retains some basic sense of right and wrong. It just makes me sad that we have had to learn the lessons of Vietnam all over again.

Author

Brian C Johnson

Date

2006-05-29T23:54:08-06:00

ID

106043

Comment

If you give an inch, they'll take a mile. Some people, like pneville, may think that since they have nothing to hide, it's OK if the government spies on him. They also don't mind if some civil liberties are compromised for the sake of safety. As long as you can use fear to further a cause, people will go for it. The justification used in all of this is 9/11. That day was hella scary and perhaps the darkest day in this nation's history, but I don't recall the Constitution saying that our rights are to be compromised because of an attack on our country. This country has gone through many wars since the Constitution went into effect and it has withstood the test of time. There's no reason why it shouldn't withstand times like these. Let the pnevilles of the world go ahead and let the government go down that slippery slope. One day, we could wake up and find that we have no more rights left. Only then, we have to point the finger at ourselves for allowing it to happen. What's also ironic: we were supposed to be fighting for the freedom of Iraqis. I guess they're getting freedom at the expense of ours.

Author

golden eagle

Date

2006-05-30T01:27:48-06:00

ID

106044

Comment

geb, I don't think our government is heading down a slippery slope. We're living in a libertarian paradise relative to the World War I era, where criticizing the government or even speaking German in public could get you thrown in jail or shipped off to Russia; or the World War II era, where 120,000 Japanese Americans were shipped off to internment camps and 600,000 Italian Americans had to carry ID cards stating their ethnic background; or even the Vietnam War era, where a corrupt government used the FBI to attack political enemies. We have our problems, but people like pneville don't represent any kind of majority in this country and, judging by the increasingly progressive opinions of each new generation, they never will. For proof, look at Arlen Specter threatening to cut NSA funding to get an answer on the spygate scandal, Russ Feingold proposing that the president be censured, an immigration bill passing the Senate that acknowledges that we cannot and should not deport these 12 million Americans--all clear signs of progress. And people get all upset about the Roberts and Alito hearings, but y'know, Reagan got a blank check on Scalia--unanimous 98-0 approval, too. Our country has changed dramatically over the past 25 years. It's still changing now. And it's becoming less like the country pneville and his ilk want. That's why they always sound so doggone angry; if they were really winning, what would they have to be angry about? We need to remember that Bush won 2000 because he wanted to do something exciting with the surplus and Al Gore wanted to put it in a "lockbox," and he won in 2004 because of 9/11. The Republican Congress won in 1994 because they promised a smaller government, and they enlarged their majority in 2002 because of 9/11. And the truth is that while I have a lot of problems with the way Bush has handled the so-called War on Terror, one reason why I'm not harder on him than I am is because if you look back at how other presidents have handled national crises, and I include Clinton and the Oklahoma City bombing in this category, we're really getting off easy. Bush is turning out to be a fine president relative to the president he could have been. We do not want to think about what would have happened if we had a Woodrow Wilson or a Richard Nixon in the White House, and I'm not sure even a Bill Clinton or an Al Gore wouldn't have done much, much worse. The problem post-9/11 is that in crises, we are willing to sacrifice our civil liberties. The problem is not that we have an administration more willing than most to abuse that sensibility. The more I look at the history of this country, and even at Clinton's record, the higher my opinion of Bush is. Because while what he's doing is terrible in terms of reflecting my values, or the values of my ideal candidate, it is much better than what his predecessors eagerly did under far less drastic circumstances. The NSA spygate bit needs to be investigated. The PATRIOT Act needs to be examined. The Gitmo prisoners need to be charged or released. We may even need to talk about impeachment. But I have to say that the Bush administration is not at all fascist by the standards set by its predecessors, and while I'll be glad to see it go in January 2009, hopefully as I watch Bush's chief justice swear in a Democratic president-elect, I think history will probably be much kinder to the Bushes than I have been. Because as much as I'd like to be referring to President Kerry instead of President Bush, historically speaking, we got off easy. I don't know if it's because of the Internet or what, but even Clinton got away with some pretty heavy civil liberties violations in his day, and he didn't have the collapsed Twin Towers lying behind him as a backdrop. Cheers, TH

Author

Tom Head

Date

2006-05-30T03:00:03-06:00

ID

106045

Comment

"BRIEF IN SUPPORT OF THE NSA ANTI-TERRORISM SURVEILLIANCE PROGRA Under the Fourth Amendment, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It is important to note that the framers of the Fourth Amendment did not require warrants for "all" government searches just "unreasonable" ones. That contemplates that there exist reasonable governmental searches which require no warrant and never have. Fourth Amendment case law has developed what is known as "special-needs" exceptions to the Fourth Amendment. The stated purpose of the NSA program is to prevent another terrorist attack such as occurred on September 11, 2001. It is not aimed at prosecuting any individual but in forestalling the attack itself. Prosecution, as we learned from 9/11 is irrelevant, since most of the Muslim fundamentalists died in the commission of the attack. In the age of weapons of mass destruction prevention is the overriding purpose of governmental action. It is a perfect suspicionless search since it is seeking unknown activities that are in the planning stage for the purpose of interdiction before the event. In City of Indianapolis, supra, decided before the terrorist attack in 2001, the Supreme Court overturned a checkpoint scheme by the city to interdict drugs. Justice O'Conner emphasized that the Court's ruling did not affect traditionally approved suspicionless searches. "Our holding also does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control." The final sentence of Justice O'Conner's assurances is the key. Where the purpose of the government is not governed by "general interest in crime control" we enter the realm of reasonable searches. Few would dispute the government's warrantless search of neighborhoods for the unknowing carrier of some dangerous plague. In the words of Justice O'Conner few Americans will dispute the acute need to ensure public safety by preventing an atomic weapon from being detonated in a US city. The problem with much of the current analysis of the NSA program involves the concentration on who might be caught up in the secret program while ignoring the overriding purpose of the governmental activity. Even in such suspicionless searches there is a balancing of the threat to public safety with individual rights. As Justice Breyer stated in Lidster, supra "in judging reasonableness, we look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." It is difficult to see where the gravity of public protection against a WMD 9/11 does not overwhelm the intrusion into the public's desire for privacy for its innocent international communications. No Senator or Representative, of either party, who has been briefed about the details of this top secret NSA program, has called for it to be halted." Congress acknowledged its legality by confirming it's designer and chief defender as head of CIA overwealmingly.

Author

pneville

Date

2006-05-30T06:48:01-06:00

ID

106046

Comment

Every time one troll falls, another rises. Pneville, your approach to spark opinions has already been tried and it has failed miserabily in the past as it is failing now. Everyone has their right to their OPINION. You seem to be trying to decimate the facts and rebuild our way of thinking. This is nothing but a failed attempt at creating a matrix as is trying to be generated by others like you. It insults the intelligence of all readers when you do not offer opinions that tease the thought process. Instead you are trying to build yourself up as the all-knowing supreme blogger.

Author

lance

Date

2006-05-30T07:43:17-06:00

ID

106047

Comment

"Progressives attack conservatives for fighting back against Islamofascists. No one discusses this example of the world turned on its head better than Hitch: http://www.timesonline.co.uk/article/0,,2092-2157754,00.html

Author

pneville

Date

2006-05-30T09:25:45-06:00

ID

106048

Comment

I wonder if Hitch is going to support John Edwards for the presidency again next time.

Author

Todd Stauffer

Date

2006-05-30T09:29:02-06:00

ID

106049

Comment

(That Edwards comment was by Donna, btw. I'm on Todd's machine.)

Author

Todd Stauffer

Date

2006-05-30T09:29:47-06:00

ID

106050

Comment

Hitchens said he was supporting Bush.

Author

pneville

Date

2006-05-30T10:14:37-06:00

ID

106051

Comment

In the next election? That seems odd. He supported John Edwards in the last election. It's amazing that even Hitch would be that "contarian" at this point. He does like to color outside the lines, though. ;-) But I don't keep up with him much anymore; he drinks a bit too much to take him seriously. He's amusing, but his logic is so twisted in on itself at this point that I don't take him seriously anymore as an intellectual.

Author

DonnaLadd

Date

2006-05-30T13:49:22-06:00

ID

106052

Comment

Chris Hitchens like Tony Blair believe that "progressives" ought to be consistent in their opposition to fascism. Neither can understand how the left can allaign itself with the most blatant form of religious fascism that Islamic fundamentalism represents. Listen to Edward R. Murrow's broadcasts from London if you want to hear a "booster" of the allied fight against Hitler. He did not hide behind objectivity when faced with evil. Why does much of today's left consider its anti-western bias a guideing force in the face of this threat to every principle it says that it holds important?

Author

pneville

Date

2006-05-30T15:08:17-06:00

ID

106053

Comment

I'm familiar with both the writings of Christopher Hitchens and the broadcasts of Edward R. Murrow, Mr. Neville. The vastness of them. Careful about over-simplification or cherry-picking to try to prove a point. Mr. Hitchens hate that about more than anybody. I wonder how your talk with "consistency" over opposing fascism fits in with your talk of frog-marching journalists over exposing plans to wiretap American citizens without warrants. Consistency, my foot. Clean your house first, please, before hurling simplistic insults at others. Your credentials aren't standing up well in this arena. So to speak.

Author

DonnaLadd

Date

2006-05-30T15:11:30-06:00

ID

106054

Comment

The "frog marching" reference comes from Ambassador Wilson one of the left's heros.

Author

pneville

Date

2006-05-30T15:26:53-06:00

ID

106055

Comment

He was asking for journalists to be frog-marched? I understand that he used that phrased, but in that context? I'm addressing what you yourself said, Mr. Neville, not where you borrowed your phrases from. Let's try to stay with one subject at a time, shall we? Drive-by insult-hurling isn't very interesting and won't hold attention here for very long.

Author

DonnaLadd

Date

2006-05-30T15:29:29-06:00

ID

106056

Comment

Also, I believe that Mr. Wilson has fans on the left and the right–especially among those of whatever party who do not believe that a CIA agent should be outed by federal officials due to political reasons. Still, let's get away from the journalist-bashing just yet. You started it; stay with it and make us understand why you want journalists frog-marched for exposing the wiretapping scheme. You do understand that that will not happen, right?

Author

DonnaLadd

Date

2006-05-30T15:31:19-06:00

ID

106057

Comment

The law provides for whistleblowers to go to congress when there is perceived illegality in the intelligence gathering field. Since they did not take that route I assume they were prepared for the consequencies of their acts in releasing secrets during wartime. Ezra Pound one of the worlds great poets was charged with treason for his pro-fascist efforts during World War II.

Author

pneville

Date

2006-05-30T15:33:03-06:00

ID

106058

Comment

I thought I'd go read the Hitchens piece, which rambles a bit before it gets to its main argument. It's classic Hitchens in the sense that it's so self-consciously mired in a (rather British) left-right paradigm that he eventually talks himself into admiting that he's a neocon by the time he corkscrews to the end of it, going so far as to wear the label with some swagger. He's definitely a label guy. Allow me to present the bulk of his argument: I believe there are three explanations for this horrid mutation of the left into a reactionary and nihilistic force. The first is nostalgia for the vanished "People's Democracies" of the state socialist era. This has been stated plainly by Galloway and by Clark, whose political sect in the United States also defends Castro and Kim Jong-il. The bulk of the anti-war movement also opposed the removal of the Muslim-slayer Slobodan Milosevic, which incidentally proves that their professed sympathy with oppressed Muslims is mainly a pose. However, that professed sympathy does help us to understand the second motive. To many callow leftists, the turbulent masses of the Islamic world are at once a reminder of the glory days of "Third World" revolution, and a hasty substitute for the vanished proletariat of yore. Galloway has said as much in so many words and my old publishers at New Left Review have produced a book of Osama Bin Laden's speeches in which he is compared with Che Guevara. The third reason, not quite so well laid out by the rather 10th-rate theoreticians of today's left, is that once you decide that American-led "globalisation" is the main enemy, then any revolt against it is better than none at all. In some way yet to be determined, Al-Qaeda might be able to help to stave off global warming. (I have not yet checked to see how this is squared with Bin Laden's diatribe of last weekend, summoning all holy warrior aid to the genocidal rulers of Sudan as they complete the murder of African Muslims, and as they sell all their oil to China to create a whole new system of carbon emissions in Asia. At first sight, it looks like blood for oil to me.) At best, this is a piece that has, really, no relationship to the (overly simple) "left-right" dynamic in the U.S. -- you'd be hard-pressed to find any mainstream Democrat or Green or Independent who would cotton to these ideas at all. Maybe this is a good piece on European "leftists" (there must be, what, 12 people in the world who really believe what Hitchens ascribes for them?) although it sounds like it's simply a hit piece on Hitch's old drinking buddies at his former publisher. But it's hardly something you could bring into a forum based in Jackson, Miss., and say "See? See?!?! THAT's what the 'left' thinks!!" And as for "progressives" "attacking" "conservatives" for fighting back against Islamofascists, I think the paradigm you're looking for is "the citizens of the U.S." "growing rather dismayed" with the way the "Bush administration" has opted to fight its "war on terror." As Afghanistan falls *back* into civil war and Iraq reaches daily toward it, it's not the idea of fighting "Islamofascism" that's got people concerned -- its the doing-of-a-crappy-job-of-it that makes you want to check belated on the references that were attached to the resumes of the people we put in office.

Author

Todd Stauffer

Date

2006-05-30T15:41:40-06:00

ID

106059

Comment

The corkscrew is an apt metaphor for Mr. Hitchen's logic in more ways than one. ;-) Don't get me wrong; I've enjoyed the experience of being in his company when he has presented his arrogant, convoluted, spiraling logic in support of his "contrarian" views that provide his livelihood–he is infinitely entertaining–but that doesn't mean he was very convincing. He's become a parody of his former self trying to justify his support of not only a war on terrorism, but Bush's war on terrorism. It doesn't take a (former) British leftist to know that there is more than one way to wage a war. And the end cannot possibly justify every possible means to wage it. Or, more aptly for this discussion, to sell it. And Todd's point about his former publisher is right on. Mr. Hitchens seems to think that all "leftists" (I guess, meaning non-far-rightists to the simple-minded) think and act just like his old friends at The Nation. Nope. I personally love Victor Navasky to death (and he's how I met Mr. Hitch in the first place), but that doesn't mean I believe his worldview is the most relevant one today. Assumptions really do make for good asses.

Author

DonnaLadd

Date

2006-05-30T15:51:16-06:00

ID

106060

Comment

The left-right dynamic in America includes Ward Churchill, Edward Said, and the 99 other dangerous academics in David Horowitz's "The Professors".

Author

pneville

Date

2006-05-30T16:03:26-06:00

ID

106061

Comment

OK, we've heard of them, neville. Are you arguing that all us "progressives" are in bed with Said? And, good Lord, don't start quoting Horowitz. That guy's a putz. You are falling right into Todd's trap. You really are starting to sound like a (former) British leftish who is p.o.-ed at his old buddies. There is nothing about those arguments that apply to the vast majority of "progressives" or "liberals" or "Democrats" in this coutnry -- or don't you and your buddy Hitch realize that? I'm a bit puzzled at what Said might have said, or not said, back when that is particularly relevant to the Iraq mess and the spying disaster that has been revealed to us in 2006 because, you know, he ... never mind. I'm defending duck pecks here. Go debate Said if you want, but stop wasting our/my time here. This is plain goofy.

Author

DonnaLadd

Date

2006-05-30T16:08:13-06:00

ID

106062

Comment

You have heard Hitch's rants about the far-right, right? Just checking.

Author

DonnaLadd

Date

2006-05-30T16:08:51-06:00

ID

106063

Comment

"Horowitz is a putz" "Cristopher Hitchens is a drunk." I thought ad homens were discouraged. I am a former Democrat. I decided to become a Republican when I realized Scoop Jackson, or his equal, was never coming back.

Author

pneville

Date

2006-05-30T16:26:32-06:00

ID

106064

Comment

Sorry, both of those are factual statements. Really. Study up. Hitch is a notorious drinker -- I watched him drink all afternoon one day here at Que Sera before he appeared at Millsaps and even went with (took) him to the liquor store for more hooch just before the event -- and Horowitz waged a campaign against private-school student newspapers because they, er, violated his "free speech" rights by refusing to run his inflammatory slavery ads. It takes a true putz to not understand that a private college could not violate his First Amendment rights if they wanted to. And, frankly, I don't care why you're a Republican. There are good Repubs and bad Repubs; it's your choice and your business. Just don't try to paint all the rest of us with some wide, insulting brush about how we're all ruled by the ghost of Edward Said or some such. That doesn't, well, make Republicans look very smart. Fortunately, I know that you're not speaking for your entire party or ideology and won't hold your silliness against the others.

Author

DonnaLadd

Date

2006-05-30T16:30:45-06:00

ID

106065

Comment

pneville writes: It is important to note that the framers of the Fourth Amendment did not require warrants for "all" government searches just "unreasonable" ones. It would be more important to note this if it were actually true. The Fourth Amendment prohibits all unreasonable searches, and does not suggest that judges grant search warrants (?!) in such cases. Congress acknowledged its legality by confirming it's designer and chief defender as head of CIA overwealmingly. Congress has been given the option on several opportunities to "confirm the legality" of the NSA program retroactively, and such a clause will likely be part of any NSA legislation when it is eventually passed, but the approval of Hayden had to do with the confirmation of an executive appointee and had no direct bearing on the legality of the NSA searches. If approval of Hayden constituted approval of everything he had ever said or done, then it would have amounted to an attempt to rewrite the Fourth Amendment to omit the "probable clause" language that he incorrectly claimed in an interview did not exist. Hayden was also a military officer at the time the NSA search program was instituted. It makes no sense to scapegoat him for decisions that occurred higher on the chain of command. Hitchens said he was supporting Bush. Bush isn't running in 2008. Ezra Pound one of the worlds great poets was charged with treason for his pro-fascist efforts during World War II. Yes, and rightly so; he was working directly under Mussolini in Italy as a paid member of the fascist regime. But he was never prosecuted for his poetry, and justice officials were very clear about this at the time. The left-right dynamic in America includes Ward Churchill, Edward Said, and the 99 other dangerous academics in David Horowitz's "The Professors". No intelligent conservative would describe Ward Churchill as "dangerous"; he is quite unintentionally one of the most effective critics of ultraliberal foreign policy that the Academy has ever produced. Nor would any intelligent liberal claim any particular affection for Churchill's beliefs, any more than an intelligent conservative would claim any particular affection for those of Fred Phelps. Cheers, TH

Author

Tom Head

Date

2006-05-30T16:35:59-06:00

ID

106066

Comment

Private schools just like public schools can violate recognized standards of Academic Freedom by supressing dissenting views. The school paper did print David's anti-reparations ad and then had its paper seized and burned, its offices invaded and its staff threatened. The school backed the fascists who burned the newspaper and thus violated essential elements of the academic duty to allow the free discussion of controversal issues.

Author

pneville

Date

2006-05-30T16:41:56-06:00

ID

106067

Comment

Good ones, Tom. I couldn't even muster any thoughts on how to deal with the Churchill reference. And excellent point about Bush. ;-) And LOL over the "unreasonable" catch. The Internet gives some people just another cherry-picked ammunition to make some really silly jumps. I'm out. Enough duck-dodging for one blog (or lifetime), I think. Ta.

Author

DonnaLadd

Date

2006-05-30T16:42:06-06:00

ID

106068

Comment

Neville, there were a whole series of papers, not just one. And he was whining then about his First Amendment rights. I know; I wrote a piece in response for a national paper that was linked on his site at one point.

Author

DonnaLadd

Date

2006-05-30T16:45:07-06:00

ID

106069

Comment

Also -- and I'm done -- his series of ads that he tried to push on school papers around the country contained factual inaccuracies. You may not be aware of it, but newspapers are responsible for factual inaccuracies, even in ads. No newspaper with high journalistic standards would have run that ad. But if you listen to po witta Horowitz tell it, it was all a conspiracy against po witta him. He's a royal putz. You can find better heroes, including on the right side of the aisle. Shop a bit.

Author

DonnaLadd

Date

2006-05-30T16:48:44-06:00

ID

106070

Comment

Tom are you contending that the Fourth Amendment prohibits all governmental searches without a warrant. Please read the cases I had to cut from my article to fit the word count. "Fourth Amendment case law has developed what is known as "special-needs" exceptions to the Fourth Amendment. Most recently examined in the United States Supreme Court cases City of Indianapolis v. Edmond, 531 U.S. 32(2000), Ferguson v. City of Charleston, 532 U.S. 67(2001) and Illinois v Lidster, 540 U.S. 419(2004), we are principally concerned with "suspicionless searches". These are searches which are not triggered by suspicion of any particular individual or knowledge of a specific past or current crime. A typical example is a random search of airport luggage." The Courts have very recently upheld (I don't have the citation) the back pack searches instituted in the New York subway system after the bombings in London. None of the searches require a warrant.

Author

pneville

Date

2006-05-30T16:53:16-06:00

ID

106071

Comment

pneville writes: Tom are you contending that the Fourth Amendment prohibits all governmental searches without a warrant. No, because it doesn't. Read items (2) and (3) in my first reply; I'm not going to restate my position just because you couldn't be bothered to read it the first time. My issue is with your claims that (1) the Fourth Amendment implies that warrants are never required if the searches are deemed "reasonable" by some unspecified standard and (2) most ludicrously, that the Fourth Amendment permits "unreasonable" searches in cases where a warrant has been obtained. Cheers, TH

Author

Tom Head

Date

2006-05-30T17:05:16-06:00

ID

106072

Comment

By the way: The president's argument in favor of spygate goes like this. 1. Yes, it violates FISA. However... 2. Congress never had the proper authority to regulate executive privilege under FISA to begin with. The executive is restricted by the judiciary and by specific measures set out in the Constitution; Congress cannot simply up and regulate the executive branch whenever there happens to be a one-vote majority and friendly president in office to sign the bill. And furthermore... 3. The 2001 Authorization for the Use of Military Force (AUMF) tacitly grants the presidency the authority to fight terrorism by any means necessary, provided that they do not violate the Constitution. Here again, I don't agree with this argument. I do, however, understand it. Point (2) is consistent with the unitary executive theory that he has asserted since day one (and which was also asserted by Clinton in a slightly less potent form), so it's not just something he pulled out of a random orifice when spygate was uncovered. The Fourth Amendment issues involve too much case law to delve into here, but if you want to read a friendly scholar who agrees that the spygate program is not illegal, read John Yoo. I don't agree with him, but his arguments are far superior to the talk-radio spin that you've managed to get yourself sucked into. Cheers, TH

Author

Tom Head

Date

2006-05-30T17:16:32-06:00

ID

106073

Comment

"not illegal" should read "not unconstitutional." And, here again, I disagree with Yoo. This is primarily because I know, as a historian, that the clear original intent of the Fourth Amendment was to prohibit general warrants. Cheers, TH

Author

Tom Head

Date

2006-05-30T17:18:34-06:00

ID

106074

Comment

Tom-I read your comment and interpreted (3) to be conceeding that the NSA program could be legal under the Fourth Amendment. I did not address FISA in my article. I have never contended that an unreasonable search is cured by a warrant. I do contend that the juriprudence surrounding the "special needs" exception to the Fourth Amendment supports the contention that the NSA program would be considered "reasonable" under that jurisprudence. I submit the quotations from Justice O"Conner and Justice Breyer in my article set the paramaters and standards applied by the Court in determining reasonabliness.

Author

pneville

Date

2006-05-30T18:53:07-06:00

ID

106075

Comment

Thanks for the excellent response. I clearly underestimated you before. pneville writes: Tom-I read your comment and interpreted (3) to be conceeding that the NSA program could be legal under the Fourth Amendment. That is an accurate interpretation. I believe that the NSA program violates the Fourth Amendment, but I consider it a debatable point. My suspicion is that Scalia and Stevens, based on their dissent in Hamdi v. Rumsfeld regarding the AUMF, and Ginsburg, based on her history of Fourth Amendment rulings, would agree with my interpretation; that Clarence Thomas would not; that Roberts would probably not; and that the other four justices are really anybody's guess. It would be either a 6-3 or 5-4 ruling, in any case. What I do know for certain is that the NSA action violates FISA. Less certain to me is the degree to which FISA is itself binding. I part company from many liberals in that I am not convinced that the unitary executive theory, at least as relevant to congressional innovation, is completely without merit. I do contend that the juriprudence surrounding the "special needs" exception to the Fourth Amendment supports the contention that the NSA program would be considered "reasonable" under that jurisprudence. I submit the quotations from Justice O"Conner and Justice Breyer in my article set the paramaters and standards applied by the Court in determining reasonabliness. You may be right. Both Breyer and O'Connor also affirmed a broad interpretation of the AUMF's mandate in Hamdi; I know O'Connor wrote the majority opinion, which represented a compromise ruling acknowledging that the AUMF had some binding authority and allowing the Bush administration to classify U.S. citizens as enemy combatants with some safeguards in place. One factor that makes this harder to predict is the current makeup of the Court--O'Connor and Rehnquist, both of whom supported O'Connor's Hamdi compromise, have been replaced by Roberts and Alito. I believe that Roberts would support O'Connor's position in Hamdi; I am much less certain about Alito, an independent justice who has (I believe) far more in common with Scalia than he does with Rehnquist. Of course, we can't really predict how justices will rule on the NSA business based entirely on Hamdi, because Hamdi was about the Fifth Amendment and imminent threats, and the NSA business is about the Fourth Amendment and more general preventative measures. The reason I personally believe that the NSA's policy violates the Fourth Amendment is based solely on my position that the NSA, by virtue of having no judicial oversight, has been granted general warrants--tantamount to Writs of Assistance. If I were ruling for the Court (and that will never happen), I would argue that the NSA policy could be constitutional if there were judicial oversight, even retroactive judicial oversight through secret courts. The problem is that FISA already provides a model for retroactive judicial oversight through secret courts, and the Bush administration chose not to use that well-worn approach when pursuing warrants. The only conclusion I can reach is that they believed that the courts would not have felt that probable cause was present to justify a search in these specific cases. I can't think of any other reason why the courts would need to be sidestepped. So I suppose the point is that I'm sympathetic to the idea behind the NSA program, but I think the Senate needs to implement some kind of oversight system in order to meet Fourth Amendment standards, and that some form of censure--not impeachment, but censure--may be warranted, given the administration's decision to act unilaterally rather than through established channels. Cheers, TH

Author

Tom Head

Date

2006-05-30T19:28:48-06:00

ID

106076

Comment

Tom-PS I think you may be right that the original intent on the Fourth Amendment may have a more restrictive view of reasonable than current jurisprudence. (Don't they throw you out of the liberal club for discussing original intent?) On santions does Roosevelt loose his spot on the mall for putting West Coast Japanese in Guantanimo camps?

Author

pneville

Date

2006-05-30T20:11:37-06:00

ID

106077

Comment

Donna-I found your article on David's reparations ad. He does plug your article on his site. (Strange conduct for a putz.) There is not much detail on the mistakes in the ad but its conclusions are not much different from my comments above. "I believe publications should debate both the pros and cons of slavery reparations in their editorial spaces – it's not an open-and-shut issue –- or choose to run Horowitz' silly ad if they want to. I also denounce the students who actually steal and burn newspapers; I believe they've crossed a fascist line and probably deserve Horowitz's "racial McCarthyism" charge." http://www.populist.com/01.8.ladd.html

Author

pneville

Date

2006-05-30T22:02:26-06:00

ID

106078

Comment

pneville, you're taking a beating. I'm not sure it's totally fair -- seems to be a rush to pile on when Donna is mad at someone that makes me a little uncomfortable. At the risk of joining in though, intelligent and articulate as you are, you make a grave mistake to support this administration's outrageous, Stalinesque behavior about war, wiretaps, warrants & surveillance. I could go on and on about this but you know -- limited space and all. You're right -- the NSA program is legal. Surveillance of all kinds has been going on since George Washington. It's nothing new at all. It has helped us a great deal more than once. Electronic wiretapping has a long history. It's quite legal What's baldly illegal is refusing to comply with the warrant law connected to it. If this Republican administration didn't have a juggernaut Republican congress in its pocket the president and his chums might be facing consequences that would make Clinton's dissembling look like kid stuff. Those FISA warrents are ridiculously easy to get. You can even get them after you've done the wiretap if you have to. You should be very, very afraid of the way they wave that 9/11 flag in our faces so they can continue to flip us all off and laugh at the Constitution in some crazy lust for power. This is a very dangerous group. Please don't buy that bunk about how they're just using this Orwellian program and anything else they cook up to protect us from terrorists. If this gang gave two hoots about protecting us from terrorists they wouldn't be so dug in about leaving that 3000 mile long door at our southern border flung wide open and going to such lengths to keep it that way. No wonder they can't find Bin Laden in Afghanistan. He probably rode across the southern border on a camel one day and nobody noticed. And if you don't think more than one jihadist has taken advantage of such easy entry you're just not thinking. They have. But boy, confiscate them nail clippers at airports by golly! Spy on zillions of your own citizens -- warrants be damned. Fire those tenured, brilliant people at CIA because they ratted you out about secret torture chambers abroad and god knows what else. Marginalize, punish and oust your brilliant military advisors who all but begged you not to go to war in Iraq. Jail those journalists -- get rid of that pesky fourth estate before they finally manage to sound the alarm once and for all. Don't defend this. Oppose it with all you've got. This guy doesn't deserve your support -- it's not patriotic to blindly support him using the honorable explanation of loyalty in wartime. It's patriotic to hold him to account -- it's unpatriotic not to. There's kind of a lot at stake.

Author

Prospero

Date

2006-06-06T20:11:51-06:00

ID

106079

Comment

Prospero, I am not "mad" at neville. I don't know him. With due respect, I love that people make it so personal when it's a woman who talk back in the same tone that people throw my direction. People with neville's tone give up claims to "fairness." You want fair, play by the rules. If not, don't complain. Carry on.

Author

DonnaLadd

Date

2006-06-06T20:45:56-06:00

ID

106080

Comment

I like your piling-on comments by the way. And I think you're a chick, too. ;-)

Author

DonnaLadd

Date

2006-06-06T20:46:39-06:00

ID

106081

Comment

Prospero-please review Mr. Head's comment on my 4th Amend. discussion on 5/30/6. I think it is fair to say he conceeds my assertion that the NSA program is legal under current jurisprudence on "special needs" exceptions to the 4th amendment. The NSA program is aimed at preventing future attacks. If it picks up a clue from a call from Pakistan to a US number that does not constitute probable cause that would support a warrant but it does call for further investigation to gain additional information to stop an attack. The search of your person at the airport that yielded the nail clipper had no warrent but it prevented you from using that nail clipper to take over the plane. Legal, but perhaps silly. Likewise the random search of your luggage at airports to detect bombs has been warrantless but legal. I have noticed Donna resorts to ridicule when she is losing an argument, however I am fair game when it comes to my spelling problem.

Author

pneville

Date

2006-06-07T07:51:55-06:00

ID

106082

Comment

neville, sigh. I match ridicule with ridicule and respond to trolls in like terms. Besides, I don't recall even coming close to losing an argument with you. It seems you just try to change the subject anytime you meet a point you don't know how to address, or accuse folks of "sophestry" when they show they're not saying what you'd like them to be saying. Stay on your point, friend, and stop trying to pick petty fights with me. You're not going to win. And I believe you're taking a rather liberal view of what Tom actually said, but I'll allow him to deal with that if he cares to bother. Otherwise, I have given up on trying to discuss issues with you because you don't listen to what others say, you always seem to resort to David Horowitz (!) as your primary source, and you change the subject when someone presents a point that you don't know how to counter. I find nothing stimulating or educational here. So the only time I'm going to respond to you is to counter your little personal ad hominems such as the one you just posted. And that won't happen for long because people who resort to those snippy attacks on others, regardless to who you are or your views, aren't welcome to hang out. So my advice is to lose the personal ruminations about other people here and stick to the issues. If you do that, you will be invited to stay.

Author

DonnaLadd

Date

2006-06-07T08:34:30-06:00

ID

106083

Comment

Look at the lovely web the White House has woven with the secret spy program: The government's warrantless domestic spying faced its first courtroom test Monday, with the Bush administration arguing that the program is well within the president's authority but that proving it would require revealing state secrets. Remarkable. Maybe it'd be one thing if this administration had done a single thing to build trust with the American people. Actually, it would still be the same thing. More: U.S. District Judge Anna Diggs Taylor heard arguments in a case brought by the American Civil Liberties Union against the National Security Agency. The ACLU wants the program halted immediately, arguing that it violates the rights to free speech and privacy. The judge gave no indication of when she might rule. The ACLU said the state-secrets argument is irrelevant because the Bush administration already has publicly revealed enough information about the program for Taylor to rule. But government attorney Anthony J. Coppolino told the judge that the case cannot be decided based on a "scant public record." "This case does not involve easy questions," he said. "It's a case that requires a robust factual record." Link

Author

DonnaLadd

Date

2006-06-12T17:41:14-06:00