shoulda, woulda, coulda

s'funny how what sounded impossible a coupl'a years ago sounds like a slam-dunk today ...

nader:	what about the more serious violations of habeas corpus. you know after 9-11 bush rounded up thousands of them, americans, many of them muslim americans or arabic americans and they were thrown in jail without charges, they didn't have lawyers, some of them were pretty mistreated in new york city. you know they were all released eventually.
napolitano:	correct.
nader:	is that what you mean also about throwing people in jail without charges violating habeas corpus?
napolitano:	well that is so obviously a violation of the natural law, the natural right to be brought before a neutral arbiter within moments of the government taking your freedom away from you. and the constitution itself, as the supreme court in the boumediene case pretty much said, wherever the government goes, the constitution goes with it and wherever the constitution goes are the rights of the constitution as a guarantee and habeas corpus cannot be suspended by the president ever. it can only be suspended by the congress in times of rebellion which in read milligan says meaning rebellion of such magnitude that judges can't get into their court houses. that has not happened in american history. so what president bush did with the suspension of habeas corpus, with the whole concept of guantanamo bay, with the whole idea that he could avoid and evade federal laws, treaties, federal judges and the constitution was blatantly unconstitutional and is some cases criminal.
nader:	what's the sanction for president bush and vice president cheney?
napolitano:	there's been no sanction except what history will say about them.
nader:	what should be the sanctions?
napolitano:	they should have been indicted. they absolutely should have been indicted for torturing, for spying, for arresting without warrants. i'd like to say they should be indicted for lying but believe it or not, unless you're under oath, lying is not a crime. at least not an indictable crime. it's a moral crime.
nader:	so you think george w. bush and dick cheney should even though they've left office, they haven't escaped the criminal laws, they should be indicted and prosecuted?
napolitano:	the evidence in this book and in others, our colleague the great vincent bugliosi has amassed an incredible amount of evidence. the purpose of this book was not to amass that evidence but i do discuss it, is overwhelming when you compare it to the level of evidence required for a normal indictment that george w. bush as president and dick cheney as vice president participated in criminal conspiracies to violate the federal law and the guaranteed civil liberties of hundreds, maybe thousands of human beings.

(hat tip to crooks and liars)

warrentless wiretaps 101

the cliff notes edition, courtesy of duncan black (aka atrios @ eschaton):

look, all the parsing of statements is a waste of time. they were eavesdropping on whoever they wanted to without any warrants or oversight. whether or not "whoever they wanted to" included, say, the john kerry campaign or markos moulitsas is still an open question. they obviously claimed the power to do so, it just isn't clear if they did it.

liar

yes, i know — politicians lie, fib, equivocate, prevaricate, fabricate, dissemble, misinform and mislead like fish breathe water — not exactly breaking news.

but senate intelligence committee chair arlen specter seems to have told us a desperate ass-saving whopper that needs to be called out.

you'll recall my post "the not ready for prime time players", which highlights specter's cowardly proposal to grant amnesty to administration officials who may have broken federal law by engaging in the widespread warrantless wiretapping of american citizens. if blanket amnesty for the bush administration weren't craven enough, specter's proposal, if granted, would also make that amnesty retroactive to 1978, the year congress enacted the fisa statute, which created the fisa court, the only judicial body charged with reviewing federal warrant applications on matters of national security.

which means that every illegal espionage act for the past thirty years would be summarily disregarded with only a signature. so much for the party of accountability.

you'll also recall in the update to that post, that news of specter's call for amnesty seems to have been the result of a gross misreading of the proposed legislation by the washington post. it seemed that specter's bill wasn't quite as servile and loathsome as we've come to expect from the rubberstamping politburo we used to call congress. specter's immediate, vociferous and unequivocal prime-time denials seemed so genuine — or was it our desperate wish to believe that congress would not so eagerly castrate itself for a president whose approval ratings rival nixon's that made us so gullible?

glenn greenwald: i have now obtained (with the help of the aclu) a copy of specter's marked-up proposed legislation, which makes quite clear that specter simply was not telling the truth when he denied proposing amnesty to the administration. the bill in question was one which specter substituted last week in the judiciary committee for the prior legislation he proposed back in march (the reason the new version was not available online was because — according to the aclu — he introduced it only in the committee, but not yet on the senate floor). in sum, specter's legislation amends the provision of fisa which provides for criminal penalties, and then, astonishingly, makes those revisions retroactive all the way back to 1978 (when fisa was enacted). the effect and almost certainly the intent of those revisions is to immunize the president and anyone acting under his authority from criminal liability for violating fisa — just as the post and the aclu correctly reported, and just as specter falsely denied. ... currently, section 109(a) of fisa provides that "a person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute ..." that means that anyone who eavesdropping on americans without complying with the warrant requirements of the statute (fisa) is committing a felony. to amend this provision to include the phrase "or under the constitutional authority of the executive" after "authorized by statute," makes it legal to eavesdrop not only in compliance with fisa (i.e., by obtaining a warrant), but also under the "constitutional authority" of the president to engage in warrantless eavesdropping even if that warrantless eavesdropping is prohibited by fisa (which it is). ... section 801 of specter's proposed bill specifically provides that "nothing in this act shall be construed to limit the constitutional authority of the president to gather foreign intelligence information or monitor the activities or communications of any person reasonably believed to be associated with a foreign enemy of the united states." that language tracks precisely the language used to define the parameters of the warrantless eavesdropping program, and it makes crystal clear that its intent is to declare legal the nsa program. and that provision is one of the provisions that has retroactive application back to 1978, which means the specter bill goes back in time — 28 years — and transforms fisa from a statute which has always regulated the president's eavesdropping power into one which places no limits on that eavesdropping power of any kind. ... what is extremely noteworthy — and worth emphasizing — is that arlen specter amended his legislation to include the most extremist provision imaginable (retroactive amnesty for criminal behavior), all in order to please the president's allies on the judiciary committee (led by sen. kyl) — who, as always, are marching to the dictates of the white house, which obviously is willing to accept new fisa legislation only if it provides them with immunity from criminal prosecution for their lawbreaking. but even more notable still is the fact that after engaging in this behavior, specter went on national television and dishonestly denied that he was doing that.... specter was so embarrassed by his amnesty provision once the post revealed it that he simply denied that his legislation contained it even though it so plainly does. specter's dishonesty aside, these shenanigans reveal what the white house is really after. their senatorial minions are going to support nsa legislation only if it contains full amnesty for the lawbreakers in the administration. the white house will then "reluctantly" agree to a newly revised fisa, and will have full immunity from criminal prosecution. specter will be the primary sponsor of this, and the media will drool over his "maverick" status and suggest that it's unreasonable to argue that specter is acting as the obedient white house shill that he always, in the end, becomes. if even the independent, rule-of-law-loving specter advocates amensty, then doesn't that show that it's reasonable? the white house insists that it has clear legal authority for warrantless eavesdropping, so why are retroactive amendments to fisa's criminal provisions necessary at all? and if we stand by and allow the republicans in congress to legislatively exonerate the president and his aides from breaking the law, it is hard to imagine what we won't stand by and tolerate. if the president can break the law and then use his party's control over the congress to grant him legislative immunity from the consequences of his criminal behavior, no hyperbole is required to say that the rule of law exists only as an illusion.

the not ready for prime time players

it's saturday night, so let's tune into the not-ready-for-prime-time players. but it's not the cast of nbc's saturday night live we'll be watching, though this season's replacements from washington d.c. — that tragicomic capital of calumny and calamity — should prove as entertaining as the originals, if nothing else. we should by now be used to nothing else.

as i forewarned in my post "elegy", the constitutional crisis facing the country can only be resolved by congress' resumption of its responsibilities to both its constituents and itself as a concrete bulwark against any encroachment on its powers and duties by either of the other two branches of government — in these circumstances, the encroachments of the bush administration against the nation's time-tested system of checks and balances.

as glenn greenwald argues with his characteristic clarity — and frustration — in his post "a new low — the senate seeks to 'pardon' the president for past lawbreaking", from which i excerpt liberally, the 109th congress, especially as represented by senate intelligence committee chair arlen specter, is not quite ready for prime time:

observing and commenting on the behavior of arlen specter is one of the most unpleasant obligations a person can have, but for anyone following the nsa eavesdropping scandal specifically, and the bush administration's abuses of executive power generally, it is a necessary evil. the principal reason that the bush administration has been able to impose its radical theories of lawbreaking on the country is because congress, with an unseemly eagerness, has permitted itself to be humiliated over and over by an administration which does not hide its contempt for the notion that congress has any role to play in limiting and checking the executive branch. and few people have more vividly illustrated that institutional debasement than arlen specter, who, along with pat roberts, has done more than anyone else to ensure that congress completely relinquishes its constitutional powers to the president. congressional abdication is so uniquely damaging because the founders assumed that congress would naturally and instinctively resist encroachments by the executive, and the resulting institutional tension — the inevitable struggle for power between the branches — is what would preserve governmental balance and prevent true abuses of power. but for the last five years, congress has done the opposite of what the founders envisioned. they have meekly submitted to the almost total elimination of their role in our government and have quietly accepted consolidation of their powers in the president. if the congress is unmoved by their constitutional responsibilities, then at least basic human dignity ought to compel them to object to the administration's contempt for the laws they pass. after all, the laws which the administration claims it can ignore and has been breaking are their laws. the senate passed fisa by a vote of 95-1, and the mccain torture ban by a vote of 90-9, and it is those laws which the president is proclaiming he will simply ignore. and yet not only have they not objected, they have endorsed and even celebrated the president's claimed power to ignore the laws passed by congress. and that failure, more than anything else, is what has brought us to the real constitutional crisis we face as a result of having a president who claims the power to operate outside of, and above, the law. a bill proposed yesterday by arlen specter to resolve the nsa scandal — literally his fifth or sixth proposed bill on this subject in the last few months — would drag the congress to a new low of debasement. according to the washington post, specter has introduced a bill "that would give president bush the option of seeking a warrant from a special court for an electronic surveillance program such as the one being conducted by the national security agency." this proposal is the very opposite of everything specter has saying for the last several months: specter's approach modifies his earlier position that the nsa eavesdropping program, which targets international telephone calls and e-mails in which one party is suspected of links to terrorists, must be subject to supervision by the secret court set up under the foreign intelligence surveillance act (fisa). a law which makes it "an option" — rather than a requirement — for the government to obtain a warrant before eavesdropping is about as meaningless of a law as can be imagined. but that complete change of heart by specter is not even nearly the most corrupt part of his proposed bill. for pure corruption and constitutional abdication, nothing could match this: another part of the specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law. the idea that the president's allies in congress would enact legislation which expressly shields government officials, including the president, from criminal liability for past lawbreaking is so reprehensible that it is difficult to describe. ... what makes this proposed amnesty so particularly indefensible is that specter himself has spent the last two months loudly complaining about the fact that he — along with the rest of the country — has been denied any information about how this illegal, secret eavesdropping has been conducted. has that power been abused? has it been exercised for political, rather than national security, reasons? before one even considers shielding those responsible for this lawbreaking from liability, wouldn't one have to at least know the answer to those questions? ... specter receives substantial criticism because of the flamboyant way in which he engages in what can only be described as sado-masochistic rituals with the administration. he pretends to exercise independence only to get beaten into extreme submission, and then returns eagerly for more. it is as unpleasant to watch as it is damaging to our country. but specter's unique psychological dramas should not obscure the fact that it is the entire congress which has failed in its responsibilities to take a stand against this president's lawbreaking and abuses, and there is plenty of blame to go around in both parties. the reason the president has been allowed to exert precisely the type of unrestrained power which the founders sought, first and foremost, to avoid, is because the congress has allowed him to.

update:

to glenn's further consternation, it looks like the post may have only imagined the heinous amnesty proposal in specter's bill:

before i wrote the post, i searched for the actual text of specter's bill in order to read it myself, but could not find it (specter's website is one of the worst sites for any senator, as it is usually a month or more behind). as a result, my post ... was based upon the post's reporting about specter's bill, rather than my own reading of it. i have now had a chance to review the actual text of specter's bill and cannot find any basis for the post's claim that it contains an amensty [sic] provision for past violations of the law. ... there is simply nothing in it which supports the post's report.

glenn had good cause to be cautious — this wasn't the first time that the post bungled the reading of the ever-multiplying proposals spawning from the senate intelligence committee:

before i wrote the post on friday, i was very reluctant to post anything about specter's bill in reliance on the report of the washington post. that's because the post previously published a front-page article about another fisa-related bill, this one proposed by sen. michael dewine, which was completely inaccurate about what the bill actually provided — not with regard to minor details of the bill, but with regard to its fundamental provisions. this is what happened. on march 17, the post published a front-page article by charles babington regarding the proposed legislation introduced by dewine (co-sponsored by sens. snowe, hagel, and graham), which was offered by those senators as the "compromise" solution when the republicans on the senate intelligence committee refused to hold hearings to investigate the nsa warrantless eavesdropping program. the post article falsely depicted this gop bill as vesting oversight power in the congress to stop warrantless eavesdropping, even though the bill provided nothing of the kind. specifically, the post article claimed — erroneously — that the bill would allow the administration to engage in warrantless eavesdropping only if a newly formed senate intelligence subcommittee approves of the program's renewal every 45 days. in fact, the legislation provided nothing of the sort. it gave no power whatsoever to any senate committee to approve or disapprove of warrantless eavesdropping. contrary to the post's front-page claim, that legislation would have vested no power whatsoever in the congress (or the courts) to stop the warrantless eavesdropping. it merely required that the administration "brief" the subcommittee, but the subcommittee (along with everyone else) would be completely powerless under that bill to stop the administration from engaging in warrantless eavesdropping. on that day, i first read the post article about this proposed legislation, but then found the legislation itself and read it. it was very clear that the post was simply wrong in what it told its readers on its front page about this significant legislation — wrong about the legislation's fundamentals.

poll pall

virtually overnight the washington post has generated a poll showing twice as many supporters than objectors to bush's illegal nsa spying program, which only yesterday was revealed to have been accumulating records on "tens of millions of americans", contrary to the administration's repeated assurances. bush supporters are of course ecstatic at any news that can be wrung into kool-aid while bush critics seem to be reflexively retreating into their ready disenchantment with the apathetic hordes.

i was planning to post my own analysis of the poll, whose construction raises serious questions regarding the framing of issues, and which completely ignored the central issue of warrants, court orders and oversight, but glenn greenwald's "polling hysteria and the nsa program" nimbly beat me to the punch:

... when the nsa eavesdropping scandal was first disclosed, rasmussen reports quickly issued a blatantly flawed poll purporting to show that "sixty-four percent (64%) of americans believe the national security agency (nsa) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the united states." the question mentioned nothing about warrants. it mentioned nothing about fisa. and it specified that the government would be eavesdropping only on conversations "between terrorism suspects." the only surprise with the results was that only 64% favored that. One would think that virtually everyone would favor eavesdropping on terrorism suspects. nonetheless, since that was the first poll, it was held up by bush followers as proof that the nsa scandal was political suicide for democrats ... as the debate over the nsa scandal became more informed and more americans understood the issues at stake, virtually every poll thereafter showed that a majority or plurality of americans oppose warrantless eavesdropping and/or believe the president broke the law, and some even show that a plurality favors the censure resolution. opinions change when people stand up and explain why what the government is doing is wrong and dangerous, and americans respect politicians who are willing to do that even when — especially when — they are not guaranteed by the consulting class ahead of time that they will win. all other issues aside, there is nothing for bush opponents to lose here by pursuing this issue. nobody who has abandoned george bush is going to again become a supporter of his because he is keeping track of the telephone calls of every single american.... ... meanwhile, in the real world, ever since the nsa scandal was revealed, the president's approval rating has done nothing but plummet. that, of course, does not demonstrate a causal relationship, but it certainly proves that scandals of this type do not remotely help the president in any way. all of those frightened beltway democrats who were anonymously screeching that russ feingold's censure resolution played right into karl rove's omnipotent hands, that it destroyed the grand democratic plan, that it would allow the president to recover by forcing the debate back onto his turf — how wrong were they, as always?

i encourage you to read the entire post.

meanwhile, for a no-nonsense takedown of the poll's questions themselves, be sure to also check out former telephone pollster krazypuppy's "worst poll ever: americans do care" at daily kos.

elegy

all good things, it is said, must come to an end.

it is now entirely possible that within your lifetime and mine a historian will one day record:

on friday, march 24, 2006, democracy in the united states passed into oblivion, escorted not with the blast of an explosive but only the hush of a smothered breath.

but what happened on friday, march 24, 2006, such that the founding principles which had carried the nation, at times lurching, but never completely collapsing, through almost 230 years of blood and sweat and toil, should so quietly vanish?

on friday, march 24, 2006, the united states department of justice delivered its answer to the house judiciary committee regarding its basis in law for conducting domestic surveillance on american citizens without judicial writ.

by way of background our historian will write, perhaps with a wistful sigh, that the united states:

was once based on a quaint system of checks and balances, now obsolete, designed to distribute the three primary functions of government among three interdependent and complementary bodies. the congress was created to write and enact the law. the judicial branch was created to interpret the law and ensure its conformance to the constitution. the executive branch was created to enforce the law. and no citizen of that nation was considered exempt from the law. james madison, destined to become the fourth president, writing in the federalist papers, in his argument for ratification of the fledging constitution, claimed that "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers".

on friday, march 24, 2006, the forty-third president and chief executive, one george walker bush, speaking through the department of justice, the enforcement arm of the executive branch, in his answer to the house judiciary committee, assumed sole authority and expanded his "unitary" claim to power over the whole of government, limited only by his "special and unique competence" alone.

his words were like the seal on a tomb:

the constitution is the supreme law of the land, and any statutes inconsistent with the constitution must yield. the basic principle of our system of government means that no president, merely by assenting to a piece of legislation, can diminish the scope of the president's constitutional power. ... just as one president may not, through signing legislation, eliminate the executive branch's inherent constitutional powers, congress may not renounce inherent presidential authority. the constitution grants the president the inherent power to protect the nation from foreign attack, and congress may not impede the president's ability to perform his constitutional duty. ... in order to execute the laws and defend the constitution, the president must be able to interpret them. the interpretation of law, both statutory and constitutional, is therefore an indispensable and well established government function. ... the president's power to interpret the law is particularly important when he is engaged in a task — such as the direction of the operations of an armed conflict — that falls within the special and unique competence of the executive branch.

and thus, on friday, march 24, 2006, the president so declared himself not answerable to the other two bodies of government.

and thus, on friday, march 24, 2006, the president so usurped their powers and claimed them for his own.

and thus, on friday, march 24, 2006, democracy did die its quiet death.

however — it is yet possible to avert that future and stay our historian's hand.

because the events he will ultimately record shall depend upon the other two branches of government and their willingness to assert their respective inherent authorities to write and interpret the law.

will they claim the powers rightly granted them by the constitution?

or will they bow in craven bondage to their newborn king?

the future is now and history awaits us.