Browsing the blog archivesfor the day Thursday, August 17th, 2006.

Righties: The Constitution Supports Terrorism!

Bush Administration, The Constitution

Sarah Karash, Associated Press:

A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion. …

… The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs.

Glenn Greenwald discusses
the opinion, so see Glenn for intelligent analysis and background (scroll down to updates). Glenn also predicts news media will spend more time on JonBenet Ramsey’s alleged killer.

This is great news, but I wonder if and how it will be implemented. The Bush Administration is likely to ignore the decision and secretly continue the program. If Congress can’t constraint the Bushies, I don’t know why they’d obey a court.

Anyway, as Dave Johnson points out,

Keep in mind that all this means is they have to start getting warrants — follow the law and Constitution just like how we have always done it in this country.

Dave links to rightie blog Ace of Spades; the comments are priceless.

Not only is she a Carter appointee, she is Black. Want to bet she was admitted to Yale on a Minority set a side? Maybe she’s related to Conners, the other Black nut from Mo Town.

I liked this one, too:

I think all of us should send this judge thank you cards. She may have just handed the GOP a 2006 sweep in both houses. She should be the Willie Horton of 2006.

Second, as we have all discussed with the ‘tards over NSA and other WoT issues, the Supreme Court (albeit in dicta) has indicated that foreign survellance is completely within the president’s power as commander in chief, so this ruling has no real chance. In fact, I wonder if Roberts will scoop up the appeal to make this a principal a firmly decided principal.

Right, but foreign surveillance of non-US persons is not what the suit was about. (This crew is brilliant, aren’t they?) The concern is that the Administration is not limiting itself to non-U.S. persons, and with no meaningful oversight, who can know what they’re up to? And of course there’s the picky little matter of following the law. Here’s an explanation of what the law says, courtesy of Media Matters.

FISA contains provisions that limit … warrantless surveillance to communications “exclusively between foreign powers.” Those provisions do not apply to Bush’s conduct, as he authorized domestic surveillance of communications between persons inside the United States and parties outside the country. FISA specifically states that the president may authorize electronic surveillance without a court order only if there is “no substantial likelihood” that the communications of “a United States person” will be acquired.

FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering “foreign intelligence information” for no more than 15 days “following a declaration of war by the Congress.” This provision does not permit Bush’s conduct either, as he acknowledged reauthorizing the program more than 30 times since 2001….

…The FISA (Title 50, Chapter 36 of the United States Code) provision (Title 50, Section 1802 — or “50 USC 1802”) … allows the president to authorize surveillance without a court order if the attorney general certifies that the surveillance is “solely directed” at “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers;” or, “the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power.” The law also states that warrantless surveillance is permissible only if the attorney general certifies that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

A second section within FISA, titled “Authorization during time of war” (50 USC 1811), states that the president may authorize warrantless surveillance for a period of no more than 15 days after Congress declares war.

Same commenter, continued:

Third, isn’t it time judicial review got smacked down? Can’t we get congress to pull a Justice Marshall over the Supreme Court and declare that Congress has the power to overrule supreme court decisions? Oh wait, no, Congress was deballed when DeLay left.

Let’s get this straight: A federal judge rules that the executive branch is violating a law passed by Congress, and this guy wants Congress to overrule the judge so that the president can continue to ignore Congress.

Brilliant, I say. You can’t make this shit up.

As Scott Lemieux says, the Right thinks that upholding the Constitution makes one pro-terrorist.

Kagro X at The Next Hurrah:

Taylor rejects the assertion that the defendants cannot carry on their case without the exposure of state secrets. Why? This part, in my opinion, is the gem we’ve all been waiting for:

    The Bush administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense of the TSP. Defendants have presented support for the argument that “it … is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies.” [Footnotes omitted.]

In other words, Taylor says that all the claims about what sensitive information may or may not be revealed in a trial is quite beside the point of whether or not the program is legal and constitutional. The government has never once made the argument that the argument for the program’s legality is itself a matter of national security. Far from it. They have claimed that it was an open and shut case.

Taylor says: Fine. Make the case.

Here’s another good bit:

One other gem worth highlighting, though, was Taylor’s address of the Fourth Amendment’s applicability:

    In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probably cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

    All of the above Congressional concessions to Executive need and to the exegencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

    The President of the United States is himself created by that same Constitution.


Ouch, indeed. Well, let’s hope the decision stands …

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Can Dems Find Their Mojo?

American History, Democratic Party, liberalism and progressivism

There were a couple of articles in Tuesday’s newspapers that underscored, for me, how far the Dems have fallen. One was a Washington Post column by E.J. Dionne:

While Republicans believe in their party and in the cause of building its organization from bottom to top, Democratic sympathizers tend to focus on favorite causes and favorite candidates, notably in presidential years. …

… a political party needs to see itself — and be seen by those who support it — as a long-term operation, not simply as a label of convenience at election time.

The other article was a New York Times story by Robin Toner, “Fathers Defeated, Democratic Sons Strike Back.”

In the history of the Democratic Party, the election of 1980 looms large: the year the party lost the White House, the Senate, a generation of Midwestern liberals and, in some ways, its confidence that it was the natural, even inevitable, majority party.

Now, that election has a sequel.

Call it the return of the sons: Chet Culver, the Iowa secretary of state and the son of former Senator John C. Culver, is running for governor of Iowa. Senator Evan Bayh, son of former Senator Birch Bayh of Indiana, is organizing and testing the waters for a possible presidential bid in 2008. And Jack Carter, the son of former President Jimmy Carter, has decided at the age of 59 to run an uphill race for the Senate in Nevada, his first foray into electoral politics.

All of them had their political sensibilities shaped, to some extent, by the election that defeated their fathers and began a generation of conservative dominance.

OK so far. But the article goes on to describe the sons as “careful” centrists who run away from the dreaded “L” word — Liberal. For example:

While Birch Bayh was known as a classic “Great Society liberal,” as Evan Bayh has put it, and as a champion of causes like the equal rights amendment, the son has long been a careful centrist, a former chairman of the Democratic Leadership Council and a founder of the Third Way, a centrist research group.

Visiting 22 states over the past year, he has argued that the way for Democrats to win is to reach out to the middle class, demonstrate credibility on national security and show respect for faith and values issues.

Conclusion: Evan Bayh is a eunuch.

The past couple of posts focused on how the Democratic Party lost itself. This post discusses how the Right, through a long campaign of “hysterical charges and bald-faced lies,” undermined the Democrats’ credibility on foreign policy. The last post looks at how white middle- and working-class voters bolted to the Right when Democrats took a stand in favor of racial equality. Further, the old New Deal coalition was fatally undermined by the New Left. But the New Left did not create a new coalition to take the place of the old one. Instead, for almost forty years American liberals and progressives have been caught up in discrete issues — civil rights, reproductive rights, gay rights, the environment, etc. — that compete with each other for money and attention.

Meanwhile, the Right built an infrastructure of think tanks and media that by the 1980s dominated the nation’s political discourse and agenda.

This is a complex history, and I’ve only touched on a few main points. I’ve left out Ken Starr and the Clinton impeachment, for example, and the pernicious influence of the Christian Right. And then there is the problem of fundraising. With no broad-based coalition to support them, the Dems came to depend on a small pool of wealthy donors for campaign money. Now, E.J. Dionne notes, Dems argue whether they should wage a 50-state campaign or strategically focus on 20 or so “blue” states, conceding the remainder to the Right.

The result: In recent years Republicans have ruled national politics like lords, while the Dems cringed about like court eunuchs being careful not to offend. While the Republicans pushed for broad and radical change in domestic and foreign policy, Democrats attempted little more than minor, incremental tweaks. And when George W. Bush became president, and as we leftie bloggers and other liberals screamed our virtual heads off at the Dem Party to get a spine and stand up to the Right, at first Washington Dems either ignored us or ran away from us.

Dems in Washington are so insular they barely know what to make of demands from the grassroots. At first they seemed to think that if they ignored us, we would go away. Now some of them are catching on that we’re not going away, and they’re becoming more responsive. But conventional wisdom tells the Dems to stick with the Clinton triangulation approach, because we liberal activists have burned the party before, in the 1960s and 1970s.

There’s a lot of distrust and estrangement here. We liberals of the base don’t trust the party to work for our issues, but the party doesn’t trust us, either.

Some progressives argue in favor of a third party. The Dems, they say, are hopeless. Why work to elect them when they’re going to let us down, as they have in the past? This argument suffers from two fatal flaws. First, since the emergence of the first “third” party in the early nineteenth century, in national campaigns third parties at best have been spoilers. This has to do with the way we run elections in the U.S. and is not going to change no matter how sincere and earnest we are.

But the other flaw is even more fatal: Until we heal our toxic political culture, and until we liberals and progressives pull together to create a unified coalition with infrastructure to rival the Right’s — any third party we create will end up being just like the Dems.

The national Democratic Party came to be the way it is in response to the nation’s political environment, which has been so fouled by the Right that real political debate and discourse are damn near impossible. And it came to be the way it is because no coalition of citizens and interest groups support it and defend it, the way the New Deal coalition supported the Democrats from the 1930s until the 1960s. Instead, our myriad single-issue advocacy groups hang back until an election is looming, then issue endorsements. Like anyone cares. And the rest of us tend to focus on favorite issues and candidates, as Dionne says.

I cannot emphasize enough that the Democrats in Washington won’t change until we change. That’s the whole point of the netroots uprising, and I believe we’re having an effect.

Those who advocate abandoning the Dems for a third party are thinking too small. They are looking for the Magic Candidate who will get elected and go to Washington and make it all better. But this ignores how Congress works and how agendas are set in Washington; in fact, individual politicians are only as strong as their parties. Going the third-party route, IMO, would make progressives even more marginalized than we already are.

This is a feeble analogy, but let’s say you have a big aquarium, but your fish are sick and dying because there is something wrong with the aquarium environment. There’s not much point in replacing dead fish with new ones if you don’t fix what’s wrong with the aquarium.

Healing the political environment is not going to be easy. Media reform, which I’ve ranted about in the past, is critical. But I’ve got a couple of other ideas.

First, we absolutely must re-build a strong and broad coalition that will work together to support the Democratic Party and liberal/progressive politicians and issues all the time; not just when elections are looming. This coalition will not necessarily look like the New Deal coalition. It would include unions and minorities, but it should strive to include small business owners, who have been pretty much shafted by the Bush Administration, and workers, and not just workers who belong to unions. Everyone who lives on a paycheck and hopes to retire with a pension or 401K is being hurt by Republican policies these days. Retirees, also, should be our natural partners.

The single-issue advocates should think hard about whether it’s in the best interests of their causes to put all their effort into maintaining big nonprofit organizations that can’t actually do much but make noise, or instead work together through the Democratic Party. I say that if the advocates — for the environment, reproductive rights, civil rights, health care, etc. — could pull together and focus their efforts on strengthening and influencing a single political party, eventually they could have the power to effect real policy changes instead of settling for tweaks. Or, as in recent years, just trying to blunt the damage being done by Republicans.

As commenter JHB pointed out, 1970s-era changes in campaign finance law, which were supposed to make campaigns more democratic, had the effect of empowering pro-big corporation PACs and gave rise to single-issue groups pretending to be bipartisan, but who demagogue on one or two inflammatory issues to help Republicans get elected. It seems every time campaign finance gets “reformed,” new sets of problems arise. And, oddly enough, those problems tend to help the Republicans and hurt the Dems. I am more and more convinced that public finance of campaigns is the way to go. But if we can’t get public financing, we must fight any “reform” that would hinder our efforts at coalition building.

In short, liberals and progressives must completely re-think our way of doing political business. All the time. Not just the way we run election campaigns.

My advice for the Washington Democrats is to figure out who they are in their own right, and stop allowing themselves to be defined by the Vast Right-Wing Conspiracy. Dems are so cowed they’ve come to believe rightie revisionist history — that the Democratic Party destroyed itself by their mushiness on foreign policy and association with 1960s hippies and radicals. And that the only way they can prove themselves to be worthy is to be like Republicans. Bleep that. I spent the last two posts explaining why the GOP version of Democratic Party history is bogus. Further, I sincerely believe a majority of voters are sick to death of the Republicans’ act and would respond well to something else.

In the last post I said Dems should “reconnect to the best of the core principles that made the party strong in the past and reaffirm those principles in the present.” Take, for example, this passage from Franklin Roosevelt’s 1941 State of the Union address:

For there is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are:

    Equality of opportunity for youth and for others.
    Jobs for those who can work.
    Security for those who need it.
    The ending of special privilege for the few.
    The preservation of civil liberties for all.
    The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living.

These are the simple, basic things that must never be lost sight of in the turmoil and unbelievable complexity of our modern world. The inner and abiding strength of our economic and political systems is dependent upon the degree to which they fulfill these expectations.

Whenever the Republicans go off on tangents about saving endangered stem cells or starting more wars in lieu of an actual foreign policy, Dems should be saying, look, here are the basic things government should be doing, along with national defense and homeland security, and government controlled by Republicans isn’t doing any of them. Instead, we’ve been distracted by fringe issues, most of which amount to government interfering with matters that people could better decide for themselves. Republicans believe in fairy tales — such as starting wars in the Middle East will spread democracy, or cutting taxes increases government revenue, or unregulated business and markets will improve everyone’s standard of living. None of these fairy tales have come true in the past, and they aren’t coming true now, yet Republicans still believe in them. If you’re tired of fairy tales and want government that works, government that does the job government is supposed to do, vote for Democrats.

Is that so hard?

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