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Tuesday, August 07, 2007

Courtesy-Flushing the Bill of Rights 

Lachrymae Sweet Baby Christi!! We step out of the palace for a pack of cigarillos, and when we come back scarcely a month later we discover that A) the imperial croquet lawns have been overrun by crabgrass, and B) the US of A is several giant steps closer to becoming what we can only describe as a straight-up, no-foolin' police state.

We know who's responsible for the crabgrass, and we are reliably told that the royal groundskeepers are being mercilessly flogged even as we write; but whom should we hold to account for the second, even more gruesome state of affairs? The blame, we are sad to say, accrues to a groveling guild of men's room attendants who have dutifully stood outside the stalls occupied by Messrs. Bush, Cheney, and Gonzales, passing small, regular squares of paper above or below the doors and hoping that the Constitution from which each square is clipped, not an overly large document to begin with, will suffice for the sanitary needs of the trio of chortling swells within. There stand those worthy servants even now, outside the stalls, waiting, waiting, scissors in hand, rosewater and lacy towels at the ready, blissfully content -- eager, even! -- to inhale the perfume of power in giddy anticipation of a tip they do not yet know they will never receive.

The group to which we refer is, as you have surely guessed, the Democrats, who are amusingly reputed to control the legislative branch, and whose overall gormlessness is here illuminated by our distinguished colleague Scott Horton of No Comment:
Here’s what occurred. The Bush Administration sought an amendment of FISA to overcome roadblocks that the FISA court threw in its way. It put its case to Congress in secret and sent its national intelligence czar to negotiate a deal. When he concluded an agreement, Bush rejected it. The White House replied with threats, essentially stating that as soon as another terrorist attack occurs, we will pin the blame on Democrats in Congress because of their failure to amend FISA to give us what we want . . . .

But Congress looked Bush’s insatiable quest for power squarely in the eye, unlocked the chicken coop, and said to the fox “here–take anything you want.” The changes that were made were subtle, but arguably they gave the Bush Administration even more than it asked for. And from this point forward, any conversation any American has with a foreigner or a person overseas may be snooped upon, no warrants necessary.

Those who expected the Democrats to stand up to this may have gotten a shock. I wasn’t shocked at all. Many see a Democrat-Republican divide over the rise of the National Surveillance State, but that’s foolish. In Britain, the Labour Party has introduced legislation which arguably did more than even Bush to erode civil liberties (and of course, the Britons had fewer liberties to start with. The American Revolution was about something, after all). What we’re witnessing is another demonstration of Lord Acton’s famous maxim: those who hold power tend to seek to extend it. At this point, Democrats are nearly giddy with the prospects of recapturing the White House and resuming rule with a solid power base in the Executive and the Legislature. And with this prospect, suddenly the specter of intrusive big government seems somehow far more palatable to them, and America’s constitutional system and the rights of the individual citizens are less of a concern.

Now President Bush’s signing statement, released this morning, tells us that the process is still ongoing. You see, whatever ground Congress gives, it’s never enough—there are always demands for more. And what’s at the top of the president’s list?

Immunity. Again. The Bush Administration’s internal analyses line up with those of outside scholars: what Bush and his team have been doing for five years roughly is definitely illegal. Felonious. But as long as Fredo runs the Justice Department, there’s no risk of prosecution. So what happens when he’s gone and a real law enforcement official takes over? The prospect of prosecution of administration actors is hanging heavy. How many pardons can Bush issue in his final days?
Thus the president writes,

When Congress returns in September the Intelligence committees and leaders
in both parties will need to complete work on the comprehensive reforms
requested by Director McConnell, including the important issue of providing
meaningful liability protection to those who are alleged to have assisted our
Nation following the attacks of September 11, 2001.
It looks like Winston Smith has been busy scribbling, inventing a new past that suits the Leader: “meaningful liability protection to those who are alleged to have assisted our Nation.” Just a quick check of the Bush lexicon: “meaningful liability protection” means that those who committed felonies by violating the FISA statute will be given immunity for their violations if they occurred to help further some Presidential design (i.e., crimes in which the president or others in the White House were the kingpins). And “those who are alleged to have assisted our Nation”? Extra ration coupons to Winston for this one. I’d say they’re talking about their aiders and abettors—that is, phone companies, Internet service providers and others who allowed—in violation of criminal statutes—the installation of blackboxes to monitor the flow of information.
Our learned colleague Rick Perlstein examines "the quality of the evidence the post-9/11 National Security State uses to choose its targets for warrantless eavesdropping" here. If you find his conclusions disturbing, you will certainly be relieved to learn that the all-new-and-improved FISA Light will be subject to careful oversight. Et quis custodiet ipsos custodes?? Why, who else but custodes ipsi!! In a masterstroke of efficiency, compliance issues will be dealt with by the very same fellows who run the wiretapping program, Director of National Intelligence Mike McConnell and unindicted perjurer Alberto R. Gonzales.

If you have the stomach to read more, you will find it here, here, here, and here, thanks to the yeoman efforts of our bootylicious colleague Avedon Carol, who has earned our undying affection (yet again!) by pointing out that "constantly trying to terrify people with the threat of violence really is terrorism, and it's not Al Qaeda that's doing that to us right now." Props also to our redoubtable c. J. Schwarz of A Tiny Revolution for linking to the diagram below, which encapsulates the current dilemma with admirable concision:

UPDATE: Our supremely irritating colleague J. Schwarz, having mastered the art of the frequent refresh, appears to have beat us to the following scoop, also from Scott Horton of No Comment:
Reading these remarks [by Newt Gingrich -- S.] brought two scenes into my mind. The first was from a recent conference I attended in Italy with a group of European and American counterterrorism experts. A large team of U.S. Department of Justice officials, drawn from its uppermost echelons, was there, including three of the principal architects of the legal policies for the war on terror. In not-for-attribution comments, one openly acknowledged that the war on terror was cast in the first instance as a political ploy and that it was a conceptual failure. It was now essential for the Americans to move on to something else, he argued. None of the others challenged that view; indeed, two of them said that they agreed with it. So even inside of the Bush Administration, the war on terror has been written off as a scam that served its limited political purpose and is finished.
UPDATE II (via Zemblan patriot B.K.): For your convenience, the list of Democrats who caved to President Bush and his cronies on the FISA bill. If you have an opinion you'd like to share with one or more of them, you will find contact information here.
Senate
Evan Bayh (Indiana);
Tom Carper (Delaware);
Bob Casey (Pennsylvania);
Kent Conrad (North Dakota);
Dianne Feinstein (California);
Daniel Inouye (Hawai‘i);
Amy Klobuchar (Minnesota);
Mary Landrieu (Louisiana);
Blanche Lincoln (Arkansas);
Claire McCaskill (Missouri);
Barbara Mikulski (Maryland);
Bill Nelson (Florida);
Ben Nelson (Nebraska);
Mark Pryor (Arkansas);
Ken Salazar (Colorado);
Jim Webb (Virginia).

House of Representatives
Cramer – Alabama
Davis – Alabama
Ross – Arkansas
Snyder – Arkansas
Boyd – Florida
Barrow – Georgia
Marshall – Georgia
Chandler – Kentucky
Melancon – Louisiana
Taylor – Mississippi
Ethridge – North Carolina
McIntyre – North Carolina
Shuler – North Carolina
Boren – Oklahoma
Cooper – Tennessee
Davis – Tennessee
Gordon – Tennessee
Tanner – Tennessee
Cuellar – Texas
Edwards – Texas
Lampson – Texas
Rodriguez – Texas
Altmire – Pennsylvania
Bean – Illinois
Boswell – Iowa
Carney – Pennsylvania
Costa – California
Donnelly – Indiana
Ellsworth – Indiana
Herseth – South Dakota
Higgins – New York
Hill – Indiana
Lipinski – Illinois
Matheson – Utah
Mitchell – Arizona
Peterson – Minnesota
Pomeroy – North Dakota
Salazar – Colorado
Space – Ohio
Walz – Minnesota
Wilson – Ohio
UPDATE III (via our irrepressible colleague Susie, Queen of Philly): From the always-delightful Dahlia Lithwick of Slate, a question that has crossed our minds more than once: "They want to fire Alberto Gonzales AND give him new eavesdropping powers?"
There's another explanation for the timidity of congressional Democrats. As an article in today's Los Angeles Times by Peter Wallsten and Richard B. Schmitt observes, the dustup over Gonzales is proving invaluable to Democrats in an election year. The spectacle of Bush clinging desperately to an inept and untruthful AG is just about a campaign commercial in itself. Why impeach/censure/defund the hand that feeds you? The day Gonzales steps down is the day Democrats must hustle to find a new issue.

There is, however, a real cost to the Democrats' strategy of pounding away at the attorney general purely for sport. The AG's dwindling crew of cheerleaders have been claiming that this was the case for months, insisting this scandal has become an empty witch hunt. That argument is starting to look like it may have some merit. It was bad enough when congressional Democrats wanted to complain about Gonzales without actually doing anything. But now they appear to want to complain about him while handing him a big fat increase in his spying authority . . . .

Imagine that the Democrats had been hollering for the past six months that Gonzales was an out-of-control drunk. With their eavesdropping vote, they've handed him the keys to a school bus. Nobody was forcing these Democrats to impeach or censure the AG. But this warm pat on the back they have offered him is beyond incredible.

With this FISA vote, the Democrats have compromised the investigation into the U.S. attorney scandal. They've shown themselves either to be participating in an empty political witch hunt or curiously willing to surrender our civil liberties to someone who has shown—time and again—that he cannot be trusted to safeguard them.

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