It’s the Warrants, Stupid

I agree with John at AMERICAblog and Stephen Kaus at Huffington Post that the righties are missing the point on the NSA issue. By several million miles.

The righties are grasping to their bosoms a new Rasmussen poll finding that 64 percent of Americans believe the National Security Agency should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. Even 51 percent of Democrats surveyed said yes. Bush is vindicated! they crow. This has just gotta hurt the left, they exclaim. America is OK with NSA, says Little Lulu.

However, Rasmussen doesn’t seem to have included some critical distinctions, like “warrants” or “judicial oversight.” The righties are still waltzing with a straw man — that us lefties object to surveillance of possible terrorists. But it’s not the snooping, it’s the snooping without warrants, that we object to.

I mean, even I would say yes to the question “Should the NSA intercept telephone conversations between terrorism suspects in other countries and people living in the United States?” Just so long as the NSA follows legal procedures.

And let’s not forget the Bushies have already demonstrated a proclivity for using the NSA for purely political purposes. They used the NSA to snoop on UN delegates and Mohamed ElBaradei of the IAEA, for example. Without proper oversight, we have no idea who the Bushies really are snooping on.

Ezra Klein writes

There’s no doubt the NSA should — nay, must! — tap the phones of suspected terrorists. The only issue is whether they are an agency unbound, freed from all judicial oversight and/or congressional constraint. Administration apparatchiks will try to twist it into a referendum on the president’s authority to tap phones in the War on Terror. It’s not. It’s a referendum on whether any President should ever be trusted with the tools and authority of a totalitarian dictator.

Just try explaining that to righties, though. Or try explaining physics to a hamster, which is nearly as futile.

I’m fascinated by the way so many rightie bloggers flip off the question of legality as so much noise and focus only on how the issue will impact politics. For example, winger Jeff Goldstein at Protein Wisdom wrote (italics are Mr. Goldstein’s),

Poll numbers of course have no bearing on whether or not the NSA program authorized by Bush (to the extent it has been revealed) is legal—but it does suggest that in spite of the decidedly anti-administration slant being put on the program by most of the legacy media, a strong majority of Americans believe that the program is a good idea, and that the President is using appropriate historical authority in authorizing and defending it.

Will these results convince partisan Democrats who’ve been pushing the story that they’re not likely to gain much politically by pressing the issue? That remains to be seen. And it remains to be seen how SCOTUS will rule on inherent authority for foreign intelligence wiretapping.

Translation: Who cares if the President is running the Constitution through a shredder, as long as it’s hurting Democrats?

Of course, Mr. Goldstein has managed to bullshit himself that “case law” supports Bush’s warrantless wiretaps; Scott at Lawyers, Guns and Money says otherwise. But you know righties; they could get a memo from God saying the warantless wiretaps are unconstitutional, and they’d just write off God as a terrorist sympathizer.

Update: See also Glenn Greenwald.

21 thoughts on “It’s the Warrants, Stupid

  1. Well Maha, you know it’s quite ok to mangle tha 4th amendment, so long as it protects us from the “terrorists”.
    Let’s see what happens when dear leader starts a messin’ with amendment#2, don’t think THATS not comming.I’m thinking someone in the party of dear leader, perhaps Alberto “Gonzo” Gonzales will propose new rules for gun ownership, let’s say no guns for Muslims.Do you think the right would object to that?
    I can remember the day when the thought of young african americans toting automatic weapons in public would have put the right in a panic. Post 9/11, a young black or hispanic man in uniform in an airport sportin’ a full auto gun became a hero.

  2. “Just try explaining that to righties, though. Or try explaining physics to a hamster, which is nearly as futile.”

    As the kiddies say, “Word.”

    Of course the extreme right-wing is a lost cause. I think we should focus on the Nixonian aspects of the scandal, the door it opens to unbridled presidential power, and hurl that in the form of leters to the editor and our own blogs. No matter how we try to correct the misconception fostered by Rasmussen’s poorly-designed poll and the Reactionary Right’s spin, the majority of America’s poorly-informed electorate is going to be swayed by those misleading numbers, so we need to present a different aspect to voters.

  3. Every day or so brings another trickle of information, but with every bit if information, more questions arise.

    I want to know who were the targets of the wiretaps conducted outside of Fisa law.As maha said in an prior post, I think we all have ideas about whom was tapped, but no proof.The problem is we may never know.You don’t expect bush to tell you , do you?

    I guess some on the right have missed the point that this is exactly the reason for FISA: oversight, they miss the point intentionally I believe because it is also the very reason NOT to go to FISA. There is no other explantion.Yesterdays “the paper work is hard” excuse , while I don’t doubt it is true, is no where near a valid reason to by-pass the legal process all together.The only explaination that does not defy logic is Bush and pals don’t want us to know who they were snooping on.

    If in fact the paper work was hard, bush and pals should have fixed it.The righties are fast to point to a poll that says the American people support spying so fixing an issue that kept them from fighting the war on terror should have been no trouble.

    If fisa was slow why not more judges? If the FBI was slow, why not more people to move the process forward if fighting terror was so important? If the justice dept held things up why not more folks trained to push papers?If the fisa laws were broken , why not go to congress and ask (a republican controlled congress btw) for changes?

    Then there is the question of where this ends.Where is the NRA ? shouldn’t they be a bit nervous?The war on terror is never ending,, one can presume this war will go on thru many presidents to come, while the 2nd ammendment may not be at risk under bush, if bush is allowed to suspend the 4th (or whatever other law he see’s fit) what is to stop the next president from suspending the 2nd?And now that the president has declared he can break laws will he rob banks? Do away with what free speech we have?will any president ever have to obey our laws again?

    Then there is the question of where it starts.When does bush’s so called “inherent authority” start?maybe there should be a easy color coded “inherent authority” threat level chart, for those of us keeping score at home.Now I may be incorrect here, and please feel free to correct me on this, but let me see if I have this clear…I am guessing we have 20,000 or less troops in afghanistan..most of the troops we had there went to iraq..Am I wrong here??Assuming I am close on the prior statement that means bush’s so called authority from congress to wiretap Americans communications without a warrant stems for the war powers in a undeclared war that only 20,000 troops are still involved in?…is that right? I was pretty sure bush had declared victory there, even though osama bin forgotten is still out there ..somewhere.

    In a way bush is saying congress GAVE him the power, and in a way he is saying he doesn’t need them to give him any power, because his power is already inherent,,ok so which is it?

    Can congress give the president the permission to break a law and it is ok? Can they give me that power? Could I drive over the speed limit on my way to rob a bank if I had a note from congress?Does inherent power mean the permission to break laws ? And does Bushs Inherent authority/power trump my rights?

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  5. “Maturity is the ability to make finer and finer distinctions.” Just like in a previous post….I sure do like justme’s ability to think maturely and make some distinctions that need to be made.

    I try, when I listen to the simplistic assertions coming from many righties, to remember that I am hearing teen-age maturity level statements that reflect an inability and disinclination to make finer distinctions. A teenager is most likely to select a short-cut identity by siding with ‘a hero’ or a ‘sport team’ or a ‘simplistic slogan’, whereby they are then devoting all subsequent rhetoric to brandishing blind/simplistic loyalty to the subject of that identification.

    Our economy is driven on the fuel of ‘brand identity’ rather that a maturing that derives from deep personal thinking that bring about true choice.
    I lament the immaturity of so many, but I have to say it’s awfully hard to separate the immature folks from a context that economically prefers them to stay immature and subject to ‘brand fever’.

    For someone with ‘brand fever’ about their ‘hero’ Bush, finer distinctions such as made by justme and others in the above postings are ignored. Those immature eyes glaze over while the more or less permanently immature identity reaches for whatever illogic can be used to maintain the ‘hero’ link.

  6. As above I have felt for years that there is a complete lack of discernment in our media discussions of issues( and evidently with alot of the public). When they claim to report into depth they don’t, when they claim to give the whole story they don’t -they miss the point entirely- this is the spin we see so much- the branding as black or white setting up false choices with false premises and assumptions. Even my children have noticed it, how often a news story parrots one angle and leaves others completely unmentioned. This is how thought and discussion are shut down and even the children (immature) are noticing.

  7. The more I obsess over it, the odder the Rasmussen poll questions appear.

    It has the appearance of a favor to the GWB administration, perhaps to secure or keep a position as a private pollster for the administration or one of their close allies. (This is not an accusation; Rasmussen does good work. But the appearance of the question is strange…)

  8. Ah the Halcyon days of Nixonian efficacy, when you could eavesdrop ad lib on those pinko fifth columnists and other Vietophile demagocrats!

    When in doubt, veterans of the Nixon administration such as Dick Cheney recommend to err on the side of more power to the executive branch. The man has a point: why not err on the side of security? After all, to err is human, and the American people as just fallible earthlings…

    And if we have to give up either security or freedom, we should surely give up freedom as professor Abraham Maslow brilliantly argued in his hierarchy of human needs and motivations … blah blah blah

    In a 1979 interview, Lillian Hellman said the following on McCarthy, Nixon and their disciples:
    “We were now facing a world we had never known before and had not expected…They were men cashing in in a quite scandalous way on perhaps normal and expected fears…McCarthy could have only sprung out of a certain war hysteria. I think something worse could happen in the future”

    Prescient words in many ways…

  9. Having read this post, I can only hope that you are at least getting stoned with your paranoia.

  10. So who’s more paranoid: Me, or cowardly righties who are prepared to sell out our heritage of liberty to be safe from terrorists?

    I say the righties are the paranoid ones. And COWARDS, to boot.

    COWARDS, I say. Spineless little weeniebabies who talk tough.

  11. Great quote from Lillian Hellman, who faced McCarthy and won. Today’s fashion is to let a godforsaken, egomaniacal president run amok without any checks or balances. Some of us still refuse to cut our consciences that way.

  12. Warrantless? You mean, that doesn’t happen here now?

    Drunk driving pullovers, getting your bags searched at airports, and numerous other instances of you being searched without a warrant. All legal, with no howls from you guys about how the constitution is being shredded.

    In the statement, “Life, Liberty, and the Pursuit of Happiness”, did you notice that life comes first, and liberty second? Did it ever cross your mind that it was written that way by design?

    Probably not.

    TV (Harry)

  13. In the statement, “Life, Liberty, and the Pursuit of Happiness”, did you notice that life comes first, and liberty second? Did it ever cross your mind that it was written that way by design?

    Like I said, cowards. Whatever happened to “give me liberty, or give me death”? And the pathetic thing is, I sincerely doubt the chipping away at liberty is making us a bit safer. But thanks for confirming that you aren’t willing to risk your precious skin for liberty.

    As for your other examples: When you go to an airport you consent to submitting to surveillance. You know you are under surveillance, and you know the extent to which you are being searched. If you don’t want to submit to the surveillance, you can find another mode of transportation.

    Being subjected to secret wiretapping is on a WHOLE ‘nother planet.

  14. OK, if notification is the kicker, let me try another example.

    The IRS can look at my bank records any time it wants, without a warrant and WITHOUT letting me know about it.

    Is this unconstitutional as well? Possibly. Does this chip away at my liberty? Of course. However, very few people have challenged this rule (other than some REAL nutcases), since every judge in the country would laugh it out of his courtroom.

    My point is that warrantless searches happen all of the time in this country, and to make a large deal over this instance of it is laughable.

    Not cowardly – just realistic.

    TV (Harry)

  15. The IRS can look at my bank records any time it wants, without a warrant and WITHOUT letting me know about it.

    I disagree with the U.S. v. Miller decision on banking records, to which you refer. We liberals believe that the Bill of Rights, esp. the 4th Amendment, protects a right to privacy. I’m sorry that you don’t, but you and your ilk are shoving us in the direction of a collective society in which every individual’s life is exposed to the all-powerful police state. And this will be accomplished one step at a time, and it will be done by persuading the cowards among us (like you) that it’s for our own good.

    I was in lower Manhattan on 9/11 and witnessed the collapse of the WTC towers with my own eyes, yet I would not compromise so much as a punctuation mark in the Bill of Rights for the sake of “security.” Because, first, it’s false security — I have yet to see a reasonable argument why Bush’s searches weren’t done through FISA — and second, because the one thing we owe our country and our posterity is to leave liberty the way we found it; to keep it safe for future generations. If every generation of Americans had run screaming for Big Brother at every threat, we’d be living in a dictatorship now.

    Not cowardly – just realistic.

    Not realistic – just cowardly.

  16. My point is that warrantless searches happen all of the time in this country, and to make a large deal over this instance of it is laughable.

    The issue, to me at least, is NOT the fact that these searches were warrentless. You are correct that warrentless searches happen all the time. It may be that these particular warrentless searches were, er, warrented I guess. The issue is that they were done illegally. The issue is that for this particular type of search, our LAWS say that judicial oversight is REQUIRED … not optional, not at the whim of the president or anybody else, REQUIRED … and the president directed the NSA to go around that oversight process.

    That alone would be bad enough. But if you take 10 seconds to consider the implications … WHY did the president feel he had to go around the oversight process? Certainly there are a FEW non-nefarious reasons, but only a few. That combined with this president’s documented habit of using (foreign, legal) surveillance for purely political purposes … how can you possibly just blow that off?


  17. Re But you know righties; they could get a memo from God saying the warantless wiretaps are unconstitutional, and they’d just write off God as a terrorist sympathizer.
    fafblog’s Medium Lobster put it best:
    There remain numerous checks on the president’s powers, such as God, who may override the president’s veto with a two-thirds vote, and the president himself, who may bring himself to justice should he find himself to have violated his oath of office.

  18. Great discussion.The trashing of the 4th amendment concerns me greatly, as does the current fad of our local law enforcement officers wearing camo fatigues and black swat team type garb..I’d have much more respect for a law enforcement officer dressed like one, NOT like a bloody storm trooper.
    BTW, annoying the IRS WILL get you a lot of grief, sane people don’t mess with the IRS because they can ruin you.That agency appears to be filled with sadists, based on personal experiance, I’d rather juggle porcupines and bathe cats for a living.

  19. The 4th Amendment protects against unreasonable searches and seizures. So tell me, which one of you geniuses actually would believe that if you were calling a known terrorist or a known terrorist associate in another country that this government would not be monitoring your calls????

    Anyone who claims that this is true is either a fracking idiot, or telling an outright lie.

    So come on all you who love to call us righties, tell me how you lefties can complain about wiretapping when your icon FDR actually interned Japanese-American citizens into camps because we were at war with Japan. We listen to phone calls, you put people in prison, yet somehow we are leading this country back to the dark ages. Quit acting like your shit don’t stink, the lefties of this world have done far worse to limit peoples liberties in the name of progress.

  20. The 4th Amendment protects against unreasonable searches and seizures.

    Yes, it does. And how does it do that?

    “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.”

    In other words, the law enforcement or executive branch of government is required to get a warrant from the judicial branch of government, and in order to get that warrant the law enforcement guys have to persuade a judge that they have a solid and legitimate reason to get the warrant.

    The reason for this is to prevent government officials from using searches to harrass or intimidate citizens who, for example, are their political opposition, or to go on fishing expeditions for information they can use against their political opposition. That’s what the Watergate burglers were up to. J. Edgar Hoover routinely used to “bug” people just because he didn’t like their politics. In fact, the Bush administration wiretapped UN officials as part of an effort to get the head of the International Automic Energy Agency, who had publicly disagreed with the Bushies, replaced. They don’t need a warrant to wiretap foreign nationals, so this wasn’t illegal. But it shows that they are willing to use intelligence agencies for political purposes.

    The FISA court was set up for wiretaps that have to be kept secret, so that the warrant would not appear in public record or be known to people without proper security clearance. It’s a safeguard to be sure the executive branch isn’t misusing wiretapping for political purposes. The Bush Administration has yet to provide a rational reason why they have bypassed even the FISA courts.

    As I explained in the post, of course people who might be connected to terrorism should be put under surveillance. I was in lower Manhattan on 9/11 so I saw what terrorism can do, up close and personal. And the feds can wiretap foreigners without a warrant all they like. But when they wiretap citizens they need a warrant. That’s the law. All we’re asking for is that the President obey the law.

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