You have to scroll ten paragraphs down to find proper credit given to Glenn Greenwald, but in today’s Washington Post Dan Eggan picks up on Glenn’s Tuesday post, “The Administration’s new FISA defense is factually false.” Jonathan S. Landay of Knight Ridder places Glenn in the eighth paragraph, but in David Savage’s story in the Los Angeles Times, Glenn’s credit appears at the very end.
So far, only a handful of rightie bloggers have weighed in, and the big guns like Captain Ed, the PowerLine trio and Glenn Reynolds as of this morning are holding fire. One suspects they’ll be spending part of today in conference calls with GOP strategists, brainstorming new and convoluted legalisms meant to confound public debate. As soon as they come up with something I’ll blog about it.
Basically, as Glenn explained,
In light of Gen. Hayden’s new claim yesterday that the reason the Bush Administration decided to eavesdrop outside of FISA is because the “probable cause” standard for obtaining a FISA warrant was too onerous (and prevented them from obtaining warrants they needed to eavesdrop), there is a fact which I have not seen discussed anywhere but which now appears extremely significant, at least to me.
In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA.
Four years ago, top Bush administration lawyers told Congress they opposed lowering the legal standard for intercepting the phone calls of foreigners who were in the United States, even while the administration had secretly adopted a lower standard on its own.
The government’s public position then was the mirror opposite of its rationale today in defending its warrantless domestic spying program, which has come under attack as a violation of civil liberties. . . .
… A Justice Department spokesman confirmed Wednesday the administration had opposed changing the law in 2002 in part because it did not want to publicly debate the issue.
Sounds about right. And I predict rank-and-file righties will justify rejection of the DeWine proposal by claiming the Bush Administration didn’t want al Qaeda to know it was wiretapping them. (If you aren’t a terrorists, see, you don’t have to worry about it.)
Glenn and others have already discussed the legal and constitutional issues surrounding the DeWine proposal and the NSA program, so I won’t go into them here.
Points for discussion:
The most obvious point — what are the Bushies really up to? No good, I say. There is no plausible explanation for Bushie behavior in this matter that exonerates them.
Next — let’s hear it for bloggers.
Point 3 — The time has come for people calling themselves “conservatives” to make a choice — either you believe in small, unobtrusive government, “strict construction” of the Constitution and fiscal restraint — as the Right has been claiming for several years — or you admit that your political affiliation has devolved into a cult of personality “erected around the person of George W. Bush.” You can’t have it both ways any more. Some will try, of course. But from now on anyone clinging to the myth that George W. Bush Republicans believe in small government and fiscal restraint will have left ordinary cognitive dissonance far behind. They will have entered the Twilight Zone.
Final point: I understand that some commenters are declaring the American people have chosen to give up some civil liberty for the sake of security. I must have missed when the question was put to a vote, but never mind. What passes for political debate on the MSM has failed to articulate one critical point — if we allow the 4th Amendment to be nullified for the sake of the “war on terror,” this will not be a temporary measure. It will be permanent. And once one part of the Bill of Rights is nullified, ignoring other parts will become that much easier.
The one thing that has held our big, sprawling, diverse, messy nation together all these years is the Constitution. Throughout our history we have taken it seriously — so seriously that we engaged in Civil War over what amounted to a constitutional crisis. Over the years we have had honest differences over what some clauses meant, and how they should be applied. Sometimes expedience requires rethinking — during the Lincoln Administration the meaning of coining money was expanded to include printing, for example — and sometimes emergencies require extraconstitutional action — e.g., Lincoln’s suspension of habeas corpus. And occasionally we choose to amend the Constitution. But we’ve never just walked away from any part of the Constitution that clearly articulated a power or privilege.
But that’s what we’re being asked to do now.
Constitutions, like laws, have authority only when they are enforced. Many nations have adopted democratic constitutions but ignored them. The former Soviet Union, I’ve been told, had a constitution that had no bearing whatsoever on the way government actually operated or on the lives of citizens. It wasn’t worth the paper it was written on.
As I said above, in times of extreme danger presidents have taken on extraconstitutional powers. But it has always been understood that these were temporary measures required to save the nation. Not just provide enhanced security for some citizens, mind you, but to ensure the continued existence of the United States itself. And when these war powers have been used, they’ve been used openly, and for a brief time. They were given up as soon as the immediate crisis had passed.
But Bush’s “war on terror” may not end in our lifetimes. Probably won’t, in fact. This nation could be under a threat of terrorism for the next few centuries. Even if Osama bin Laden were captured tomorrow and al Qaeda were disbanded, other leaders and organizations will arise to fill the void. I understand this is happening already. And even if the threat of radical Islamic terrorism were to end we might not realize it for a few years. And in that time other threats may emerge.
In other words, the 9/11 state of emergency is now the new normal. This is the way the world is going to be for a long time. I believe we are entering a new stage of human history in which wars are no longer fought between nation-states but between ideological tribes of people. All of our rules and conventions that applied to the Civil War or World War I and II will need to be re-examined in light of new reality. The phrase state of war itself may need to be redefined.
It is unrealistic to abandon an article of the Bill of Rights for decades, generations, centuries, and expect that it will somehow come back into force in some unknowable future. And if Sam Alito is confirmed to the SCOTUS we cannot count on the courts to save us from the folly of the rest of government. No; if we abandon an article of the Bill of Rights now, for the sake of “security,” we are abandoning it for good.
I’d like to see that point brought up, even once, by the MSM.
Update: Jacob Weisberg writes in Slate:
In fact, the Senate hearings on NSA domestic espionage set to begin next month will confront fundamental questions about the balance of power within our system. Even if one assumes that every unknown instance of warrant-less spying by the NSA were justified on security grounds, the arguments issuing from the White House threaten the concept of checks and balances as it has been understood in America for the last 218 years. Simply put, Bush and his lawyers contend that the president’s national security powers are unlimited. And since the war on terror is currently scheduled to run indefinitely, the executive supremacy they’re asserting won’t be a temporary condition.
Update update: Why Orrin Judd remains my favorite rightie:
Note that her [Hillary Clinton's] argument requires us to accept that the routine spying carried out by pretty much every American leader since George Washington in the Revolution was illegal up until 1978? In point of constitutional fact, the Executive has not been and can not be bound by Congress in this area, not does the Court have jurisdiction to rule in the matter–that’s just how separation of powers works.
Brilliant. Wrong, but brilliant.
Update update update: Carla at Preemptive Karma writes,
Over the many messy, tumultuous, violent and dark times this nation has withstood, the Constitution has been the thread that’s bound us together. Once we nullify a piece of it by Executive fiat..which pieces are next? How will it effect the unity of the states?
This is the question We, the People must address, and now.