Unclaimed Territory - by Glenn Greenwald: The Bush justifications for law-breaking (con't)

Unclaimed Territory - by Glenn Greenwald: The Bush justifications for law-breaking (con't):

Unclaimed Territory - by Glenn Greenwald: The Bush justifications for law-breaking (con't)

Domestic Spying

Domestic Spying

The Department of Justice this week released a memo which describes the legal justification for the domestic surveillance activities authorized by the President.

The memo makes a few assertions and findings of law. I am not sure I agree with them, but there is an argument that they are correct.

First, the memo briefly discusses FISA, the Foreign Intelligence Service Act. It does not make the assertion that these activities fall under FISA, which is probably because they do not.

FISA authorizes (in Section 1802(a)) electronic surveillance without a court order, but only if the individuals surveilled are agents of foreign governments. Operatives of non-governmental organizations (like al Quaeda) are not subject to warrantless, non-court ordered surveillance. Additionally, for any surveillance to occur under 1802(a), there must be no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. "United States person" is defined as a citizen of the United States, an alien lawfully admitted for permanent residence ..., an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power... . Note that it says that a U.S. person can't be a party to any of these conversations. This is not solely a limit on the target of the investigation. There must be a substantial likelihood that no intercept will involve any U.S. citizens or other U.S. persons. If a terrorist regularly orders out for pizza, this standard can't be met.

The memo goes on to cite the Prize Cases in support of the argument that the President has the authority to repen invasions and attacks by force. This case is very interesting because, although it is from the Civil War era, it deals with a few issues very close to home in the "War on Terror". Of particular interest is the Court's discussion of the nature of war:

"The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties be acknowleges asindependent nations or sovereign states. A war may exist where one of the belligerents claims sovereign rights as against the other."

This language was, of course, intended to show that the war between the North and the South was a war, regardless of the fact that one side asserted that it was between citizens of the same country. However, I think it is important to note that there still was an assertion that othe other side was and was acting as an independent nation. Al Quaeda does not operate as such. Even moreso, the nebulous concept of "terror" does not operate as such. Could members of the ALF be considered a sovereign nation when they blow up a biology building? I don't think so.

Al Quaeda operatives who are U.S. persons are more appropriately considered a "fifth collumn" within the U.S. than operatives of a sovereign nation. I do not think the Prize cases change this, in spite of the fact that they also dealt with "war" being waged on U.S. citizens by U.S. citizens. In fact, the case discusses this, by saying "...a civil war always begins by insurrection against the lawful authority of the government....When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belliigerents, and the contest a war." This is not the situation with regard to al Quaeda operatives within the U.S. It would be much easier if it were. If al Quaeda were to take over, say, Texas Stadium (home of the rat bastard C*wboys), we could bug it and bomb it into oblivion without a second thought. However, so long as they are acting in secret, this cannot be considered a "war" as described by the Prize Cases.

That's all sidebar, however, as the memo does not make the argument discussed above. Instead, it uses the Prize Cases to support the main argument that Congress' September 18th authorization for the use of force authorizes this activity. Note that this authorization deals with the use of military force and the Armed Forces. The NSA was, until 1952, under the direct control of the armed forces. However, in 1952, uts role was expanded, and it became an agency under the DOD separate from the armed forces. The chairman of the NSA is always an active military officer, but the NSA itself is not under military command, and is not considered an "armed force".

The memo attempts to counter this argument (without explicitly mentioning it) by likening the surveillance power to the detention power uphed in Hamdi v. Rumsfeld. Note that Hamdi didn't really discuss this issue. The memo is describing dicta in several of the opinions of a case (soem of which reached conflicting results). Also note that Hamdi was in a ver different position than the individuals who are being surveilled. Hamdi, although a U.S. citizen, was captured in foreign territory while actively egaged in waging war against U.S. forces. Even assuming that the discussions in this case are binding or persuasive, Hamdi's actions clearly met the standard of "war" described in the Prize Cases. U.S. citizens with al Quaeda sympathies, but who have not yet declared those sympathies in an open and gostile manner and are less clear.


The discussion of In re: Sealed Case has similar issues. There's a passage on page 48 (beginning "The Truong court..." that explicitly says that the President can conduct warrantless searches to obtain "foreign intelligence information".

...However, this court says that it "assumes" that that argument is true (apparently because the issue was irrelevant to the issue being addressed by the court...the Constitutionality of FISA), then goes on to rip apart the Truong case on other grounds.

Even if that dicta is valid, I would question whether the ability to get foreign intelligence information could justify domestic searches and seizures. I just don't know.

Another person who won't get my vote

I have a feeling that Joe Biden is going to run for President. I don't particularly care about the "plagiarism" charge levied against him a few years back. However, recent comments by him to Tim Russert regarding his (Biden's) position on the war really annoyed me.

SEN. BIDEN: But remember--no, remember what I voted for was for the president to be able to go to war, if, if--I've got the resolution here--if, in fact, it was to enforce the existing breaches that existed in the U.N. resolution and if he could show there were weapons of mass destruction.

MR. RUSSERT: Do you believe the Democrats and you were diligent enough in reading that National Intelligence Estimate and all the caveats and calling the president to task as to whether or not he was being candid about the intelligence and his interpretation?

SEN. BIDEN: Yes. And if I--I'll leave with you because there's no time here all the statements I made at the time laying out my doubts about their assertions. But remember what the resolution said, Tim, it didn't say "go to war." It said, "Mr. President, if you can show these things, then you can use force."

These statements are flat-out lies. There's no other way to put it. Congress acted with unbelieveable irresponsibility in authorizing this war.

The Constitution Article II, Section 8, Clause 10 gives Congress the authority to declare war. This authority has been domewhat modified by the War Powers Act which says, in relevant part,

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Section (3) did not apply. Bush's office made a couple tentative attempts to say that 9/11 justified the invasion of Iraq, but they backed off of that tact (evidenced by the very fact that they continually pressured Congress into giving them authority).

So, without a justifiable argument under (3), Bush can't Constitutionally send troops into hostilities without some sort of Congressional action. This is good. It's the very epitome of the "checks and balances" which are in place in the U.S. system to prevent tyrrany.

So what did Congress do? Did it declare war (under provision (1) of the Section of the War Powers Act quoted above)? No. They didn't. Instead, they gave Bush authority under provision (2), specific statutory authority. That's fine. If Congress determines that it is warranted, they can authorize the President to commit troops without actually declaring war.

However, they did so in a very underhanded and irresponsible way. Here's the text:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

(b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that--
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and

(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001

...

SEC. 4. REPORTS TO CONGRESS. (a) REPORTS- The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of planning for efforts that are expected to be required after such actions are completed, including those actions described in section 7 of the Iraq Liberation Act of 1998 (Public Law 105-338).



Did you see that? Congress said, essentially, "Bush, you can go to war if you want to. After you go to war, just be sure to tell us what you did. They completely ceded their Constitutional authority to Bush. They put the entire situation in Bush's hands. They handed him a gun and said "here, do whatever you think is right. Tell us about it afterwards".

Biden claims that there were requirements in the law. Requirements the Bush had to meet before using force. Scroll back up and read his comments again.

This is a flat-out lie. There are no requirements in this law. None. Bush is given carte blanche do use the military as he sees fit.

If Congress was convinced that a war was necessary, they should have authorized the war...not authorized Bush to authorize the war. If Congress was not convinced that a war was necessary, then they should have refused to pass on their Constitutional responsibility to hold the troops in abeyance...or placed specific requirements in the law that limit the use of force (like the imaginary ones that Biden describes). There is utterly no excuse for acting the way they did. They abdicated their responsibilities. They determined that, after 200 years of Congressional action, this particular Congress was not fit for its responsibilities under the governing documents of this country.

Any Senator or Congressman who claims to oppose the war and who voted for this resolution is, quite simply, a filthy liar, and is unfit to serve in any elected office. This is true regardless of whether you feel the war was a good idea or bad.

It takes a children's book discussion to rile me up.

One of my slowly growing number of readers sent me a link to this blog post, regarding the Chronicles of Narnia. I was aghast. As I stated in a previous post, I am both excited and nervous to see the movie.

I will reiterate my statements from the earlier post: I am not a radical Christian. A brief perusal of some of my other posts on this site (Here and Here, for example) should convince you of that.

However, what mystifies me about the linked review/post is the author's characterization of Lewis' message. What Mr. Myers misses completely is that Lewis, first and foremost, set out to write a children's novel. AWlthough there is clear Christian allegory, the principal goal was the story. Children like adventures. Lewis gives them adventures.

Mr Myers claims that it was "simply not a good story", which is fair enough, I guess. Obviously our tastes differ. However, the quotes he provides from a "heartwarming" review go well beyond a criticism of the story.

Over the years, others have had uneasy doubts about the Narnian brand of Christianity. Christ should surely be no lion (let alone with the orotund voice of Liam Neeson). He was the lamb, representing the meek of the earth, weak, poor and refusing to fight.

...And this is represented by the mighty lion, with the ability to easily crush all opposition, willingly placing himself on the stone table for sacrifice. What would the sacrifice have meant if Aslan were, in fact, a powerless, meek easily-defeated opponent? It would have meant nothing. The power in this analogy is that Aslan lays himself down before an inferior foe in order to redeem the meek, poor souls who cannot fight for themselves. Lucy and Susan, watching the sacrifice, even comment on this.

Philip Pullman - he of the marvellously secular trilogy His Dark Materials - has called Narnia "one of the most ugly, poisonous things I have ever read".

I have to say that this quote reveals the reviewer's biases. I have read (and enjoyed) "His Dark Materials". However, it should be pointed out that Mr. Pullman's work is a similar "fantasy" work to Lewis'. It is, in fact, clearly intended to be a counterpoint (although, in my humble opinion, less artfully done). Mr. Myers (and several commenters) state that they missed the allegory in the Chronicles at first. It would be impossible to miss the allegory in Mr. Pullman's work.

Where Lewis, as I stated earlier, attempts to express to his reader the beauty of the story of Christianity (which exists regardless of whether you believe Christianity to be true) while primarily telling a fantastic story, Mr. Pullman beats you over the head with his secularism. God is presented (explicitly, not allegoricall) as a fraudulent old dotard who deserves nothing better than to be scattered to the wind. The child protagonists of the book are, in the end, separated forever and told that they will vanish forever when they die. Now, maybe this is a message Mr. Pullman felt he had to get accross. However, I think he would have benefitted greatly by reading Lewis' work "On Three Ways of Writing for Children".