Category Archives: Civil Rights

Cartoon Karma

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I know some of you won’t be interested in this, but I’m gonna write it anyway …

The Right Blogosphere has become even more unhinged over the Mohammed cartoon riots as they did over the French riots. Just check out the links on Memeorandum.

Apparently the Danish cartoons came about because a Danish author was having trouble finding an illustrator for a book about Islam. Arthur MacMillan wrote for The Scotsman that publication of the cartoons was “intended to generate a debate about freedom of speech.” Well, it’s done that. Andrew Sullivan said that “The cartoons were not designed to ‘incite religious or ethnic hatreds.’ They were designed to protest such incitement – and we have the corpses of Theo van Gogh and Pim Fortuyn as useful proof.”

Whatever the original inspiration, most of the cartoons did not focus on the acts of particular Muslims but instead depicted Mohammed and Muslims in general as homicidal whackjobs. So some bad acts incited more bad acts, which incited violence among Muslims, which incited some Europeans to republish the cartoons to show they weren’t gonna let Muslims tell them what to do, and the violence got worse, and now the nice doggie’s readers are stocking up on ammo. I don’t know if anyone’s been killed yet, but if no one dies before this firestorm dies down it’s going to be a miracle.

It occurred to me that this episode is a textbook example of karma. I was taught by the Zennies that the Sanskrit word karma means action, in particular actions created willfully by both deeds and words. In other words, it’s all about cause and effect. Karma has its own law of physics; once set in motion, it tends to stay in motion. So, for example, Bill may have a hard day at work and come home and yell at Mary, who then loses her temper and takes it out on Junior, who kicks the dog. That bad temper being passed from one person to another is karma.

This cartoon flap is karma writ large.

I am repelled by violence, and I admit I am repelled by Muslims’ violent reaction to the cartoons. But the way to respond is not to work oneself into a self-righteous hateful snit, as our home-grown righties are doing, and use the violence as an excuse to hurl hatespeech back. The way to respond is, first, to refuse to be baited. Refuse to hate back. This is, I believe, what Jesus was reaching to when he said “turn the other cheek.” I’m sure it’s what the Buddha meant when he said,

Occasions of hatred are certainly never settled by hatred. They are settled by freedom from hatred. This is the eternal law.

Others may not understand that we must practice self-control, but quarrelling dies away in those who understand this fact. — The Buddha (the Dhammapada, Pairs 3-6)

The consensus on the Right is that “we’re better because we’re not rioting and burning stuff and issuing death threats. We are verbal haters only.” That won’t win ’em any Buddha points; thoughts and words create evil karma as well as deeds.

I’m not calling for toleration of lawbreaking and violence. As I said, I am repelled by death threats and acts of vandalism. I can’t control what people do in their own countries, but if Muslims in Europe don’t get control of themselves I suspect law enforcement will take control for them. I don’t see any way around that. Most western nations take a dim view of gangs of people using violence and threats to prevent citizens from personal and lawful activities. (The United States may be one of the few exceptions — the anti-abortion rights terrorists are getting away with shutting down abortion clinics all over the country. But that’s another rant.)

But the more I think about it, the clearer it is to me that newspapers that choose not to republish the cartoons are acting correctly. I agree with this Boston Globe editorial —

This was a case of seeking a reason to exercise a freedom that had not been challenged. No government, political party, or corporate interest was trying to deny the paper its right to publish whatever it wanted. The original purpose of printing the cartoons — some of which maliciously and stupidly identified Mohammed with terrorists, who could want nothing better than to be associated with the prophet — was plainly to be provocative. Islam prohibits the depiction of Mohammed in any way, whether the image is benign or not.

Other European papers reprinted the cartoons in a reflex of solidarity. Journalists in free societies have a healthy impulse to assert their hard-won right to insult powerful forces in society. Freedom of the press need not be weakened, however, when it is infused with restraint. This should not be restraint rooted in fear of angering a government, a political movement, or an advertiser. As with the current consensus against publishing racist or violence-inciting material, newspapers ought to refrain from publishing offensive caricatures of Mohammed in the name of the ultimate Enlightenment value: tolerance.

Just as the demand from Muslim countries for European governments to punish papers that printed the cartoons shows a misunderstanding of free societies, publishing the cartoons reflects an obtuse refusal to accept the profound meaning for a billion Muslims of Islam’s prohibition against any pictorial representation of the prophet. Depicting Mohammed wearing a turban in the form of a bomb with a sputtering fuse is no less hurtful to most Muslims than Nazi caricatures of Jews or Ku Klux Klan caricatures of blacks are to those victims of intolerance. That is why the Danish cartoons will not be reproduced on these pages.

I admit my opinion is based more on religious philosophy than political philosophy. Politically, the issue is more dicey.

Eugene Volokh is pissed at the Boston Globe because he couldn’t find condemnation of the famous “Piss Christ” photograph in their archives, possibly because the Jesus-soaked-in-pee photo was in the news in the late 1980s and the Globe online archives don’t seem to go back that far. As for the Brooklyn Museum’s display of “the Virgin Mary covered in feces” — I don’t believe that’s accurate. As I remember, the work in particular did not “cover” the image of the Virgin in feces; rather, the image was rendered in medium made partly of elephant dung. (Whether the art was disrespectful or not depends on the beholder, seems to me. I once saw a Zen student make a Buddha out of dog poop and set fire to it, as a demonstration that all things are buddha and also impermanent. The monks were fine with this.) Anyway, the Globe defended the art, which Volokh found inconsistent.

Maybe. Again I am guided by Buddhism, which teaches that purity of motive is essential to purity of action. From that perspective, if the Globe reprinted the Mohammed cartoons it would be an impure act, because they would be doing it only to “get back” at the rioting Muslims. The cartoons are not up to the Globe’s standards and would not have been published for any other reason. If the cartoons were something the Globe wanted to publish for their own sake, however, that would make publishing them an entirely different act even if the Muslims were rioting about them.

I know this sounds convoluted, but that’s how I see it.

Update: Juan Cole takes a stab at explaining the Muslim perspective.

Update update: See also Joe Gandelman: “…some editors don’t feel they have to publish them to maintain their right to publish them or show that they have this right.”

See also Editor & Publisher.

Update update update: A cartoonist’s perspective.

A Free Speech Question

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I’m doing some “thinking out loud” today, or more accurately, “thinking on blog.” Forgive me if I wander a bit.

Righties are up in arms about cartoons lately. On the one hand, some righties are angry that the Washington Post published this cartoon by Tom Toles that ridicules Don Rumsfeld. On the other hand, other righties are angry that a major American newspaper won’t publish these cartoons, which ridicule the Prophet Mohammad.

Michelle Malkin argues that righties are not, in fact, being inconsistent. Those opposed to the Tom Toles cartoon (including the Joint Chiefs of Staff) are not issuing death threats or rioting in the streets the way some Muslims are about the Mohammad cartoons. The Toles objectors are just speaking out, writing letters to the editor, and otherwise exercising free speech. John at AMERICAblog reveals that the people objecting to the cartoon aren’t making any sense, but Malkin has a point — so far I haven’t seen any of them threatening violence. Anger at the publication of the Mohammad cartoons, however, has set off violence throughout the Muslim world.

(On the other hand, as a commenter to AMERICAblog points out, when the Joint Chiefs of Staff send a formal objection on official letterhead objecting to the political content of a newspaper, the newspaper editors might feel a bit intimidated. See also comments from Editor & Publisher.)

The Mohammad cartoon crisis began on September 30, when the Danish newspaper Jyllands-Posten published the 12 cartoons of the Prophet Mohammad. When angered Muslims threatened the newspaper and Denmark with various reprisals, including a boycott of Danish products, several European newspapers reprinted the cartoons as an act of solidarity with the right to free speech. Since then violence has escalated — Palestinian gunmen shut down a European Union office in Gaza City. Protesters besieged the Danish embassy in Indonesia. And so on.

Malkin and others on the Right are unhinged over the fact that American news outlets are refraining from publishing the cartoons, which are all over the web (link above).

I understand the urge to express solidarity for free speech. I remember when the Ayatollah Ruhollah Khomeini — a really disgusting guy in my book — condemned Salman Rusdie to death after publication of The Satanic Verses. Americans flocked to bookstores to buy the book just to show the Ayatollah he can’t tell us what to read. That was noble. So why aren’t American newspapers showing Muslims they can’t tell us what to publish? Is this not giving in to the terrorists?

I’ll come back to that question in a minute. The other argument righties present for publishing the cartoons is based that old, bedrock conservative moral principle — they do it too. Specifically, other people make fun of Jesus, so why can’t we make fun of Mohammed? Malkin has more “they do it too” examples here.

Seems to me Jesus already explained that the “they do it too” defense doesn’t hold water.

But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. … Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you; That ye may be the children of your Father which is in heaven: for he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust.

I interpret that to mean “just because somebody does something that pisses you off doesn’t make it OK for you to do the same thing.” I’m dismissing the “they do it too” argument as typical rightie hypocritical whining.

So let’s go back to the “free speech” argument. Are U.S. news outlets refusing to publish the cartoons because they are spineless cowards, or could there be another principle involved?

Earlier today, the U.S. State Department took sides with the Muslims:

While recognizing the importance of freedom of the press and expression, State Department press officer Janelle Hironimus said these rights must be coupled with press responsibility.

“Inciting religious or ethnic hatred in this manner is not acceptable,” Hironimus said. “We call for tolerance and respect for all communities and for their religious beliefs and practices.”

Malkin argues that the State Department is betraying the principle of free speech. On the other hand, as I recall we’ve got this little “ending tyranny in our world” project going on in Iraq, and it seems to me that if we are serious about that program (a debatable point, I know) we need to be careful that our words and actions regarding the Muslim world support the program. Encouraging newspapers to publish the cartoons might feel gratifying, but in the long run it could make anything resembling “success” in Iraq more difficult to achieve. And if we’re trying to persuade Muslims that the western way of doing things is superior, showing them that we are free to ridicule the Prophet may not be the best argument. I’m just sayin’.

I have one other argument against publishing the cartoons — they’re stupid cartoons. They’re crude. You may disagree, but IMO their only point is that Mohammad (and Muslims) are bad. They remind me of old war cartoons depicting “the enemy” in a way that makes us a tad squeamish when we look at them now.

This set me to thinking about what makes a good political cartoon. I’ve heard it said that a good political cartoon exaggerates to reveal an underlying truth. If the “truth” is a common bias or prejudice, where’s the revelation? IMO a good cartoon should have an eye-opening quality, like a mini-kensho; they should make you slap your head and say, wow, that’s right. I see it now. On the other hand, cartoons that serve only to reinforce bigotry are propaganda.

For that reason, I can’t get worked up into a pitch of free-speech righteousness about publishing these cartoons. I can imagine a cartoon I might support — say, something that reveals an ugly truth about bin Laden or Zarqawi, for example. No problem with that. But these particular cartoons are not worth going to the mattresses over, I say.

What do you think?

Update: More about what distinguishes a good political cartoon from the master, Herblock.

Update update: Andrew Sullivan writes, “The cartoons were not designed to “incite religious or ethnic hatreds.” They were designed to protest such incitement – and we have the corpses of Theo van Gogh and Pim Fortuyn as useful proof.” Oh good; protest religious and ethnic hatred with more religious and ethnic hatred. Yes, children, another variation of “they do it too!”

Occasions of hatred are certainly never settled by hatred. They are settled by freedom from hatred. This is the eternal law.

Others may not understand that we must practice self-control, but quarrelling dies away in those who understand this fact. — The Buddha (the Dhammapada, Pairs 3-6)


Update update update: I think this editorial in The Guardian gets it right.

A Fast One

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Though we may be frustrated by their lame-ass political news coverage, somebody at the New York Times is a great editorialist. Go there now and read “The March of the Straw Men.”

President Bush is not giving up the battle over domestic spying. He’s fighting it with an army of straw men and a fleet of red herrings. …

… Let’s be clear: the president and his team had the ability to monitor calls by Qaeda operatives into and out of the United States before 9/11 and got even more authority to do it after the attacks. They never needed to resort to extralegal and probably unconstitutional methods.

Mr. Bush said the warrantless spying was vetted by lawyers in the Justice Department, which is cold comfort. They also endorsed the abuse of prisoners and the indefinite detention of “unlawful enemy combatants” without charges or trials.

The president also said the spying is reviewed by N.S.A. lawyers. That’s nice, but the law was written specifically to bring that agency, and the president, under control. And there already is a branch of government assigned to decide what’s legal. It’s called the judiciary. The law itself is clear: spying on Americans without a warrant is illegal.

One of the oddest moments in Mr. Bush’s defense of domestic spying came when he told his audience in Nashville, “If I was trying to pull a fast one on the American people, why did I brief Congress?” He did not mention that some lawmakers protested the spying at the briefings, or that they found them inadequate. The audience members who laughed and applauded Mr. Bush’s version of the truth may have forgot that he said he briefed Congress fully on weapons of mass destruction in Iraq. We know how that turned out.

Yep. We do.

And They Think We Should Vote for Them Because … ?

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By now you’ve probably heard that the Gang of 14 scuttled the Alito filibuster. But I agree with Kos; we accomplished something amazing. “The Alito vote may have fizzled,” Kos writes, “but you better believe the Dem establishment knows we exist.”

So the next step is to get more Dems in Congress. But what about the Dems who caved today? They are: Akaka (HI), Baucus (MT), Bingaman (NM), Byrd (WV), Cantwell (WA), Carper (DE), Dorgan (ND), Inouye (HI), Johnson (SD), Kohl (WI), Landrieu (LA), Lieberman (CT), Lincoln (AR), Nelson (FL), Nelson (NE), Pryor (AR), Rockefeller (WV), Salazar (CO).

Some argue that red state senators like Landrieu need to walk carefully, but there’s no excuse for blue staters like Lieberman to be such a toady. That’s why Ned Lamont needs to win the Connecticult Democratic senatorial primary this year.

Short takes:

Via Steve M: Fox News reports:

A new provision tucked into the Patriot Act bill now before Congress would allow authorities to haul demonstrators at any “special event of national significance” away to jail on felony charges if they are caught breaching a security perimeter.

Sen. Arlen Specter , R-Pa., chairman of the Senate Judiciary Committee, sponsored the measure, which would extend the authority of the Secret Service to allow agents to arrest people who willingly or knowingly enter a restricted area at an event, even if the president or other official normally protected by the Secret Service isn’t in attendance at the time.

Rightie blogger Bruce Kesler says leftie bloggers are vulgar. Has this guy tuned in to the Rottweiller lately? And are wingers born with a hypocrisy gene, or what?

Jeanne d’Arc explains how to escape from Guantanamo: Be Osama bin Laden’s bodyguard. If you’re an innocent nobody locked up by mistake, however, be prepared to stay awhile.

Wes Clark endorses single payer. Yes!

Freedom Is Slavery, and Other Republicanisms

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Here are the rules: Republicans own the terrorist attacks of September 11, 2001, and all issues touched by the attacks. Therefore, when a Republican waves the bloody WTC tower, so to speak, to stir up emotional support for a GOP policy, that is not politicizing 9/11. Because they own 9/11, see. However, whenever a Democrat mentions 9/11 in any context, that is politicizing 9/11.

Further, wherever the GOP has used 9/11 as part of an emotional appeal for a GOP policy (which is not politicizing), Democrats may not criticize that policy. Because to do so “politicizes” the policy and is an insult to the memory of those who died on 9/11.

Further, whenever the Republicans stir up fear of terrorism to justify curbing civil liberties protected by the Bill of Rights, that is “resolve.” As in, we must be resolved to compromise our constitutional heritage and the freedoms our forefathers fought and died for, because of 9/11. To do otherwise is an example of “pre-9/11” thinking, as well as an insult to the memory of those who died on 9/11.

Whenever someone (such as a Democrat) expresses reluctance to jettison long-established civil liberties for the sake of security, that is an example of “paralyzing self-doubt.”

In the post-9/11 world we must be resolute and decisive. We must not hesitate to destroy the Bill of Rights in order to save it.

Phrases like “Article II authority,” “separation of powers” and “right to privacy” are code words for paralyzing self-doubt. We no long stand on constitutional principles in the face of events; rather, we allow events to dictate our constitutional principles. Anyone with any resolve at all knows this.

Because our President is a man of action and resolve, he doesn’t have to bother with following laws passed by Congress regarding surveillance, nor should he be expected to ask Congress to revise regulations to make them easier to follow. He can just ignore them. Anyone who wants to make the President accountable to the law is risking the lives of American citizens.

Whenever a Republican, such as Vice President Richard Cheney, claims that a controversial Bush Administration policy would have prevented the 9/11 attacks if only we’d had it sooner, that is an example of reasoned political discussion.

Whenever anyone else brings up the myriad clues we had before 9/11 that a terrorist attack involving al Qaeda cells and hijacked airplanes crashing into major landmarks like the World Trade Center, which the Bush Administration ignored, that is not reasoned political discussion. It is irresponsible discussion; nothing but ‘connect-the-dots’ reporting.”

Real Americans don’t connect dots. Connecting dots lets the terrorists win.

I must admit that before today I didn’t understand these rules. But then I read “Our Right to Security” by Debra Burlingame.

It’s all clear to me now.

Adventures in Reading

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Must-read editorial in today’s New York Times:

A bit over a week ago, President Bush and his men promised to provide the legal, constitutional and moral justifications for the sort of warrantless spying on Americans that has been illegal for nearly 30 years. Instead, we got the familiar mix of political spin, clumsy historical misinformation, contemptuous dismissals of civil liberties concerns, cynical attempts to paint dissents as anti-American and pro-terrorist, and a couple of big, dangerous lies.

The rest of the editorial goes over ground already covered by The Mahablog, but read it anyway. It’s a first-rate synopsis of the ongoing atrocity known as “the Bush Administration’s justification for warrantless wiretapping.”

When you are done with the editorial, head on over to Newsweek for “Palace Revolt” by Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas. This provides new insight in how the above-mentioned ongoing atrocity came into being, and how some Justice Department attorneys — conservative Bush appointees, no less — stood their ground against the infamous “torture memo” and the White House’s circumvention of FISA.

Then, still at Newsweek, see Jonathan Alter’s “The Political Power of Truth.” A pinch:

For four and a half years, Bush has politicized 9/11. His political motto has been “The only thing we have to use is fear itself.” He was at it again last week, claiming with zero evidence that congressional scrutiny of the illegal NSA wiretapping would “give the enemy a heads-up on what we’re doing.” The media and the Democrats have both been intimidated by this devastatingly effective political strategy. It won the 2002 and 2004 elections for the Republicans and will continue to be their game plan for this November.

At first glance, making the Democrats seem soft on “terrorist surveillance” looks like another winner for the GOP. For Democrats to explain that they don’t oppose all eavesdropping but object to the way it was done is a two-step answer that’s too complicated to fly. A better approach would be to argue that Bush’s NSA program has been a failure because it has threatened civil liberties and violated the law without doing anything to catch Osama bin Laden. The NSA obviously hasn’t been eavesdropping on the right suspects.

This would fit with the Democrats’ idea of fighting fear with failure—Bush’s failure. New polls show his approval ratings in the dismal low 40s, with strong majorities believing he has failed on every score except keeping the country safe. (A majority of those polled not surprisingly support Bush on eavesdropping on terror suspects domestically. So do I. But when the constitutional questions are raised, his numbers drop.) To confront the security issue, Wesley Clark is chairing a PAC to help the nine Iraq and Afghanistan combat veterans running for Congress as Democrats (versus one as a Republican). The idea is to adopt the Rovean strategy of attacking your opponent’s strength.

Will it work? In recent years, failure and incompetence have been trounced by fear at the ballot box. The former is based on reason and an examination of the facts; the latter on emotion, with 9/11 as a trump card. But now reality may be making a comeback, as Bush’s authority breaks into a million little pieces.

This sounds like a plan. General Clark’s WesPAC is doing a lot of good stuff and deserves more attention, IMO.

Points to Ponder

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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.

David Savage in today’s Los Angeles Times:

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.

Six Degrees of NSA Wiretapping

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If you missed Countdown with Keith Olbermann last night, you missed this:

(BEGIN VIDEO CLIP)

GEN. MICHAEL HAYDEN, DEPUTY DIRECTOR OF NATIONAL INTELLIGENCE:

When you‘re talking to your daughter at state college, this program cannot intercept your conversations. And when she takes a semester abroad to complete her Arabic studies, this program will not intercept your communications.

Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such.

(END VIDEO CLIP)

OLBERMANN: For a reality check on that claim and everything else we heard from the Bush administration today, I‘m joined now by Kate Martin, director of the Center for National Security Studies.

Ms. Martin, thanks for being with us tonight.

KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL SECURITY STUDIES: Thank you.

OLBERMANN: That‘s a pretty bold claim there from General Hayden today, obviously an improvable one. What credibility is it given by experts in the field?

MARTIN: Well, you know, Vice President Cheney made the same statement, I think, in an effort to deflect the conversation from whether or not the president broke the law.

I mean, what General Hayden said is that we would have detected al Qaeda operatives in the United States before 9/11. But, of course, the 9/11 commission found that they did detect two al Qaeda operatives, two of the hijackers, in the United States before 9/11, they knew they were al Qaeda, and they didn‘t do anything about it.

OLBERMANN: The issue then was not finding, but knowing what to do when you find.

MARTIN: Yes.

OLBERMANN: A question about the semantics of what we just heard General Hayden say about the domestic spying program. He said that a call to your kid at state college “cannot” be intercepted by this program, but he then said that if she‘s studying Arabic, the program “will not” intercept. Is that anything more than just somebody writing it unclearly? Or should we assume that there‘s something about “will not” that implies that in the past the program could have intercepted those calls?

MARTIN: Well, I think the problem is that the administration hasn‘t been forthcoming about who they are listening to at all. The only thing they‘ve said is, they are listening Americans without warrants who are calling overseas, and that there‘s some link to al Qaeda.

And so he‘s trying to reassure people. But, of course, if you look at the actual law and their words about what is that mean with regard to the link to al Qaeda, any American who‘s conspiring with al Qaeda, they can get a warrant on in about two seconds.

And so these people that they‘re wiretapping, and we don‘t know who they are, appear to be people who are maybe calling somebody who, in turn, is calling somebody, who then may be linked to some al Qaeda affiliate.

And that‘s apparently why they haven‘t gone to court to get a warrant do the wiretapping.

OLBERMANN: Even in—just in terms of the technology, could this domestic spying program really be targeted, as targeted, as limited, as the administration is saying? Because this is what does not add up for me. How would you know in advance that it‘s an al Qaeda operative making a phone call, sending an e-mail, making a contact in some way with somebody here?

Is there not necessarily, even if you‘re hitting a 500 percentage here, is there not some fishing around just to find out, in fact, that it‘s an al Qaeda representative calling someone?

MARTIN: Well, those are all unanswered questions, but very good questions, because, of course, the NSA does have the capability to vacuum up millions of telephone conversations and then sort them through a computer and pick out which ones some actual person is going to listen to.

And even though the law that the president is ignoring, and, in my judgment, violating is very specific, that if you have some probable cause that an American is in communication with, is involved with, al Qaeda or some other terrorist organization, you can get a secret warrant and secretly wiretap them.

So the question that hasn‘t been answered by the administration is, why didn‘t they get those warrants? Who is it that they‘re trying to wire—that they are wiretapping, who the judge wouldn‘t give them a warrant for? The judges have given them 13,000 warrants, and generally say yes when they ask.

OLBERMANN: Which question resonates more within the intelligence community, that one, or the one that the president asked today rhetorically that, of course it was legal, because if he were trying to break the law, why would he have briefed Congress?

MARTIN: Well, of course, if you—he did not brief Congress in any forthcoming way at all. In fact, Senator Rockefeller wrote Vice President Cheney a handwritten note after that briefing, saying, You told me something, I don‘t understand the significance, it was completely confused. And then you told me that I was prohibited from telling my staff or anyone else. I want more details.

He never got an answer.

And, you know, telling Congress, of course, doesn‘t matter, because the law says you may not wiretap without a warrant. And whether or not he told Congress doesn‘t make it legal.

OLBERMANN: Kate Martin, the director of the Center for National Security Studies, thanks for your perspective. Thanks for joining us tonight.

MARTIN: Thank you.

Update: MUST READ post at Unclaimed Territory!

Hamdi Ho

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Our national debate on the President’s surveillance powers has reached an impasse. We’re at the “Am not!” “Am too!” stage, which can only be resolved through the intervention of a parent.

Our side of the argument is laid out pretty well in an editorial in today’s Washington Post.

Especially without knowing the parameters of the surveillance, we hesitate to second-guess the president’s argument that FISA’s limits are unduly constraining. The surveillance may be critical for national security, and a law written in a different technological age may well need to be refurbished. But the proper way to handle that — which the administration rejected — would have been to seek changes in the law, not to do a stealthy end run around the legislative process. In such an amorphous, long-running conflict as the war against terrorism, it’s critical to ensure that limits are in place to prevent the executive branch from overreaching.

The White House has yet to explain why, if FISA regulations were cumbersome, it did not ask Congress for changes. After 9/11 Congress was tripping all over itself to give President Bush every tool he could possibly ask for to fight terrorism. The Patriot Act did, in fact, make changes in FISA (see Title II: Enhanced Surveillance Procedures). Clearly, the White House simply didn’t bother to follow legal procedure. They didn’t think they had to.

And now that they’ve been caught, they’ve gone on the defensive to make critics out to be dupes of terrorists. Instead of discussing the real issue (why the White House bypassed constitutional procedures) they’re trying to make the issue about why the Democrats are soft on terrorism, leading to the “Am not!” “Am too!” impasse. Now we need Mom to step in to make Georgie explain his extraconstitutional shenanigans and send him to his room until he promises to stop. And no computer or video games for you tonight, young man!

Today President Bush said the Supreme Court had approved warrantless wiretapping, which might come as a surprise to the justices. He’s referring to the Hamdi v. Rumsfeld decision, decided in 2004. If you don’t want to slog through the entire decision, there’s a brief abstract here.

Yaser Hamdi, an American citizen, was arrested in the fall of 2001 in Afghanistan by U.S. military. He was declared an “enemy combatant” and transferred to a military prison. A defense attorney filed a writ of certiorari in federal district court. Perhaps a reader with a law degree can explain this, but I take it this was a petition for the court to review Hamdi’s case. Anyway, the attorney, Frank Dunham, Jr., argued that the government had violated Hamdi’s 5th Amendment right to due process “by holding him indefinitely and not giving him access to an attorney or a trial,” says the abstract. “The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States ‘enemy combatants’ and thus restrict their access to the court system.”

So how did the case turn out? The abstract continues,

In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O’Connor wrote that although Congress authorized Hamdi’s detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government’s argument that the separation-of-powers prevents the judiciary from hearing Hamdi’s challenge.

If you’re not seeing authorization for warrantless wiretapping in there, don’t worry. You aren’t the only one. A whole lot of real smart legal scholars got together to write this in the February 9 issue of the New York Review of Books:

Finally, the DOJ’s reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a “fundamental incident of waging war.” Id. at 519. The plurality expressly limited this holding to individuals who were “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the “exclusive means” by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

The AUMF is an act of Congress, the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). The White House argues that Congress implicitly authorized the NSA domestic spying program by means of the AUMF. The Department of Justice argues that

The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad. [emphasis added]

Oh, so did Justice O’Connor write in the majority decision that the AUMF authorizes the President to engage in warrantless wiretapping? Um, well, Justice O’Connor didn’t write about wiretapping or surveillance at all in the Hamdi decision. She does address warrantless arrests of American citizens, and she took a dim view of them. But not a peep about surveillance.

To understand where the Right is seeing this authorization for warrantless wiretapping in Hamdi, I turned to Paul of PowerLine, who wrote,

Specifcally, the Court ruled that AUMF grants the president implied authority to detain U.S. citizens in the U.S. because detention to prevent a combatant from returning to the battlefield is a fundamental incident of waging war. In the same way, AUMF can be read as authorizing the president to conduct communication surveillance targeted at the enemy on the ground that it too is a fundamental incident of waging war. If so, then the intercept program does not violate FISA because that statute contains an exception for surveillance authorized by statute.

Yes, O’Connor’s decision does say that combatants can be detained: “The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war.’ … The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. … There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. … In light of these principles, it is of no moment that the AUMF does not use specific language of detention.”

My reading of O’Connor’s decision is not that the AUMF authorized detention, but that detention is indisputably something that soldiers in war can do to someone fighting them. If we extrapolate Paul of PL’s reasoning, we’d have to say that warrantless wiretapping of American citizens is indisputably something that the White House can do. That’s not workin’ for me.

And the Court ruled against the Bush Administration in the Hamdi case, remember. The Court said that the executive branch cannot arbitrarily declare that an American citizen may be stripped of his due process rights, even if that citizen is caught fighting against the U.S. in a foreign country. Justice O’Connor wrote,

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U. S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”). …

… We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. [emphasis added]

This, folks, is the legal decision that Bush claims supports his warrantless wiretapping program. This, folks, is called “blowin’ smoke” where I come from. There are a great many more colorful things one might call it.

The legal eagles in the New York Review of Books say that the Hamdi decision is limited to to people engaging in armed conflict against the United States in Afghanistan. Further, Congress cannot have implied authorization of the NSA program, because “Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.”

I will admit right now that I am no lawyer. Paul of PowerLine is a lawyer, or so he says. Someone on the Right might — no, will — say that he must understand this legal stuff better than I do. And maybe he does. But what he claims about Hamdi is pure fantasy. I may not be a lawyer, but I can read, and I can think. And I know bullshit when I see it.