Category Politics

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Invertebrate Democrats and “Warrantless Wiretapping”

Aug 7, ’07 10:32 AM

As the details of precisely what the "Protect America Act of 2007" contains start to be analyzed, it’s pretty clear that Congress ought to be ashamed of itself.  Moving beyond the Newspeak name of the bill itself, it’s pretty clear that this law violates the Fourth Amendment. 

Marty Lederman, writing at Balkinization, analyzes the key ambiguities in the Senate version of the bill:

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA’s requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.;no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

There are many aspects of electronic surveillance which present serious constitutional "grey" areas, and as a society we haven’t even begun to discuss these issues seriously.  But one issue is not grey, and I highlighted it in bold in Lederman’s analysis.  The Fourth Amendment requires that people (by which we can read "citizen" or "legal resident" although it’s not clear whether the Founders wished that distinction to be made) be immune from search (which now includes electronic search or surveillance) without a due process requirement that demonstrates the "reasonableness" of the search, which hundreds of years of Anglo-American legal tradition, American constitutional law, Congressional and state statute, and Federal case law says means probable cause, judicial consideration and issuance of warrants. 

Congress, in its second most spineless act in quite awhile (the Military Commissions Act and restriction of habeas corpus was worse), has ratified the Administration’s previous warrantless wrongdoings and gutted the Fourth Amendment in a wide variety of situations.  So why did a Congress cut the Judicial Branch out of the loop and give the Executive Branch the power not only to legally conduct surveillance on U.S. citizens, but also to be the arbiter of when it was acceptable to conduct such surveillance?

My guess is that Congress has shown yet again that the "potential attack on American soil" trump card works every time:  no rational discussion of threats and potential courses of action is possible when the opposing side can shout you down with the simple mention of 9/11.  The major challenge we face in American politics today is getting beyond sloganeering so we can have a rational national discussion about how we are conducting the defense of the Republic against criminal and military threats we face.  Congress will not do this by itself:  right now the 16 Democrats in the Senate (and others in the House) that voted for this unconstitutional bill likely did so because they’re afraid for their re-election prospects if they don’t vote to give the President every power he asks for, should something happen.

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J.K. Rowling and a Morality Tale for Modernity

Jul 22, ’07 6:02 PM

Having just finished the seventh and final book in the Harry Potter series, I want to record some thoughts about the “shape” the series has taken, and how Rowling’s work fits into, and comments upon, the modern condition. I’ll try to do so without “spoilers,” since I know many folks haven’t read book 7 yet or at least haven’t finished it.

It seems clear to me that Rowling’s series will have an enduring place in both the fantasy and children’s canons, in much the same way that Tolkien does, and for many of the same reasons. Naysayers aside, Rowling has created a deeply imagined world, and although she may not have actually written a grammar for Parseltongue or endless volumes of back history notes, the world itself is rich enough to interest children and adults alike as long as the genre itself remains part of our shared cultural heritage.

Her legacy as more than fantasy, more than children’s literature, however, depends entirely upon the relevance of her themes to the concerns adults face in our society — as with so much literature. And I need to add that I discuss Rowling along these lines only because she herself appears to have invited such comparisons by writing a series rich in historical parallels; by writing a morality tale steeped in modern life.

As I finished Rowling’s final book in the series, I was reminded immediately of Richard Rorty’s commentary upon Orwell’s historical legacy:

Orwell’s best novels will be widely read only as long as we describe the politics of the twentieth century as Orwell did. How long that will be will depend on the contingencies of our political future: on what sort of people will be looking back on ours, on how events in the next century will reflect back on ours, on how people will describe the Bolshevik Revolution, the Cold War…..Someday this description of our century may come to seem blinkered or shortsighted….Our descendants will read him as we read Swift — with admiration for a man who served human liberty, but with little inclination to adopt his classification of political tendencies or his vocabulary of moral and political deliberation….In the forty years since Orwell wrote, as far as I can see, nobody has come up with a better way of setting out the political alternatives which confront us. Taking his earlier warnings against the greedy and stupid conservatives together with his warnings against the Communist oligarchs, his description of our political situation — of the dangers and options at hand — remains as useful as any we possess. (Richard Rorty, Contingency, Irony and Solidarity, pp. 169-170).

One need not have read the seventh and final book to understand the shape of Rowling’s allegory (but naturally, the force of it becomes much clearer as one sees the details of Voldemort’s return and rise to power). I do claim, though, that Rowling has done a superb job in describing a particular phenomenon: the ordinariness and mundanity of tyranny’s origins.

The Lord of the Rings may inspire us, and we may see in it the quintessential struggle between good and evil, but very little of Tolkien’s morality tale is of much use to us today. We simply do not describe modern life the way Tolkien did, and thus in Rorty’s words we read him as we read Swift. Rowling’s tale, on the other hand, was crafted precisely to describe us. The Wizarding world is palpably our own, with an overlay of magic — but even the magic is law-like and “ordinary” (i.e., wizards must work for basic necessities, and cannot simply conjure food or shelter).

Most importantly, over the course of the series, but especially from book 4 onwards, we are treated to a compressed history of 20th century absolutisms. Dark power has reigned in the past, but was conquered by an alliance of the good. Years later, people are tired of grand struggles and appear more than ready to dismiss all the signs of evil’s return. Vested interests combine with those who simply wish to protect their skins (e.g., the Malfoys), or are in denial (e.g., early Dolores Umbridge?) to wield the power of media, the state, and peer pressure to deny that anything is amiss. Those who preach vigilence against the return of evil are dismissed as fools or worse. Only a few are truly committed — either to evil or to fighting its return. And because most are simply seeking “the quiet life,” the actual battles, when fought, are the province of a tiny minority who fight on behalf of their different visions of society.

I’m not claiming that Rowling literally replays the history of the 20th century for us in the Harry Potter books. She doesn’t. But, at least to me, there are elements (especially in the final book, which I won’t spoil) which recall the Nuremburg Laws, Hitler’s rise to power, and to look for wider parallels, the search for “purity,” whether racial or national. Nor are the triumphs of the left ignored: Hermione’s long-standing crusade on behalf of house-elves (even more critical in the last book) mirrors the 20th century civil rights movements and its cultural offspring, with the message that democracy and freedom depend upon equality and inclusiveness. The latter point will sound like a bit of a stretch, until Book Seven.

Clearly it’s possible to read the Harry Potter series without hearing serious echoes of Kristallnacht. But for an adult, with basic familiarity with 20th century history, it seems difficult to read the series and ignore its essential point: our vulnerability comes from complacency and comfort, but so does our security, because only our relative abundance and our freedom of speech allows us to expand our moral universe to include those traditionally excluded: the Muggle-born, house-elves, goblins, and giants, and in our world, those of different colors, beliefs, and cultures.

Rowling has written the morality tale for modernity, and indeed likely for our “post-modern” century as well, because “evil” in our world tends to come in the same form as hers: the belief that purity — of one sort or another — is the cure for our dissatisfaction, and that diversity, hybridity, and difference are weakness. As long as we continue to describe our struggles and dangers in the same way, as long as those who seek to destroy liberal democracy (in the broadest sense of the term) do so in the name of a hypothetical, “pure” state of religion, culture, or race, we will still have much to learn from J.K. Rowling.

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President for a Day…?

Jul 20, ’07 8:04 PM

On second thought, I’m going to wish President Bush well with his colonoscopy tomorrow. I hope it goes smoothly, and above all, quickly. Dick Cheney really is going to be President for a good chunk of tomorrow, and it appears that at least the wingnuts are happy about that fact. Suggestions at the NRO’s blog for Dark Lord Acting President Voldemort’s Cheney’s “to do list” include:

Bomb Iran.

Commute the sentences of those border agents.

Fire Mike Chertoff.

Tell Harry Reid to … well, you know…

Pardon Scooter

Of course, I strongly doubt that Cheney will actually do anything too serious tomorrow, except in a real emergency situation. Apart from telling Harry Reid to…well, you know…few of these things wouldn’t have major consequences. And that would just hurt the GOP further in their attempt to run a serious presidential campaign (although I hear that Mr. None Of The Above is finally pulling ahead of the pack in the latest polls….).

But just the same, I’ll be keeping my eyes peeled for the Dark Mark signs of misbehavior on the part of the Veep, who isn’t known for his mild temper and sunny disposition (or his aim, according to his duck-hunting buddies).

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Sticking to the Script: Executive Privilege and Contempt Citations

Jul 20, ’07 5:12 PM

Today the Washington Post reported that the Administration will not allow the Justice Department to pursue contempt proceedings in the US attornies firing scandal. This is wholly unsurprising: the White House is sticking closely to what seems to be the script of a spaghetti Western: Showdown on Pennsylvania Avenue.

Congress isn’t done here, by a long shot. Credibility in the 2008 elections pretty much rides on keeping the heat on, especially since the Administration is now employing the tactics of slow tactical retreat on a number of issues that have long been recognized by many to be losing battles both morally and for public opinion (I’m thinking especially of today’s executive order banning the CIA from using torture enhanced interrogation tactics). I’d expect the next step to be Congress actually testing the Administration’s resolve to block grand jury proceedings by formally requesting such, at least in the case of Harriet Miers and Joshua Bolten.

But when the Administration steps up and does block the Justice Department from carrying out its statutory and constitutional obligations, Congress must be ready to turn the page and move on to the next scene in the showdown, which will likely be a series of lawsuits filed in the DC Federal courts. Although I have to admit, I’m more and more attracted to the idea of the Sergeant-at-Arms marching up to the White House gates every time the President pulls one of these power-grab maneuvers.

I was going to finish with a joke about the President’s colonoscopy, but that would be in bad taste. I’ll leave the possibilities to your imagination.

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Showdown on Pennsylvania Avenue

Jul 8, ’07 2:21 PM

Tomorrow morning is the deadline established by the House of Representatives for the White House to respond to subpoenas for testimony and documents in the US attorney’s scandal (which, remember, is the means by which we learned about and began investigating attempts to strong-arm Ashcroft on warrantless wiretapping).  At 10 a.m. Eastern time, unless something changes, Sen. Leahy and Rep. Conyers have promised to start discussion in both houses of Congress as to whether the White House is in contempt of Congress. 

Leahy has said that he intends to drive forward, and first determine whether there is a plausible case for asserting executive privilege.  This seems unlikely given past precedent, but it’s a necessary step before attempting to push a vote on contempt of Congress.

What happens should there be a contempt vote and it passes?  Marty Lederman has an excellent summary on Balkinization, the upshot being that there are three methods even before we to seriously discussing impeachment proceedings against anyone.  These are:  (1)  The House and Senate can direct the US attorney for the District of Columbia to bring the matter before a grand jury, to enforce the subpoena and contempt citations, (2) Congress itself can prosecute the contempt citation, via the sergeant-at-arms arresting the official named in the contempt citation, and (3) Congress can file a civil action in federal court seeking declaratory relief — in other words, seeking a Federal judge to issue an order to the official(s) named in the contempt citation to comply with the subpoena. 

Opinion varies concerning the likelihood and effectiveness of each measure, but it seems certain that at least two of these will be attempted by Congress should the White House not comply, as we all expect.  Based on my readings on the issue, I expect the House and/or Senate to try method #1 first:  directing the US attorney to initiate a grand jury proceeding.  Like most observers, I also expect the attorney general’s office to direct the US attorney in question to ignore the order.  There is some precedent for such an order, and given the Administration’s past behavior, I’d expect them to use every precedent available to them, regardless of how stretched the interpretations might get. 

But that’s fine, because should the Administration direct the US attorney not to proceed on the basis of Congress’s request, that directive itself simply becomes part of the investigation and future legal proceedings.  The Administration would simply be fueling a fire that now threatens to burn out of their control. 

But should that occur, I’d expect Congress to initiate a civil suit in Federal court.  The precedents, as discussed by Lederman, are complex, and this will drag on for some time.  But as a commenter to Lederman’s post noted, the end of the Bush Administration’s term doesn’t end the controversy or the case.  The facts, and Congress’s ability to investigate them and prosecute contempt charges, will survive the 2008 election and a change in the Oval Office.  Contempt of Congress is a criminal charge, and carries a penalty of up to a year in prison. 

And if all else fails, Congress has option #2:  the sergeant-at-arms can arrest the officials in question, up to and including the President himself.  The authority of Congress to do this is relatively unquestioned.  Lederman quotes Justice Scalia, a fairly consistent defender of separation of powers and, at least in some instances, a critic of Executive overreach:



As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course ‘leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it’" (quoting Anderson).

So tomorrow morning I expect the White House to simply ignore Leahy and Conyers, and Congress as a whole.  We’ll hear a lot of bluster about this being a political charade, and partisan politics.  Congress needs to ignore it, and do its duty.  We’re well beyond partisan politics here, and well into territory where this is about reining in an Executive branch that no longer believes in accountability or separation of powers.  ALL THREE of the possible responses need to be on the table, and Congress needs to be ready to explain to the public why and how it will prosecute this matter.

On another note, the Guardian (citing WaPo) reported this weekend that President Bush has invited academics to the White House to discuss his legacy.  My personal suggestion would be to have the historians do a walkthrough of the final year of the Nixon Presidency, starting with the firing of Watergate prosecutor Archibald Cox in the "Saturday Night Massacre" (incidentally, the actual firingNixondepart
was done by Robert Bork….heh) and covering the events leading up to Nixon boarding Marine One after his resignation.  Since the President was busy getting early release from his National Guard service in 1974, it’s possible he missed some parallels that might now come in fairly handy.

Meanwhile, every stonewall, every exhibition of their contempt for the legislative branch, and every attempt to cover up their blatant partisanship within the Justice Department brings us closer to the day when the Administration will lose the support of even the Republican base, and be forced into a corner where they must explain themselves or face the possibility that impeachment is, indeed, a real option.   

If the White House chooses to escalate the constitutional confrontration tomorrow, it might be time to change the oil and fill up the gas tank on Marine One, in case Mr. Bush needs a ride back to Crawford.

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Originalism, Constitutional Interpretation, and Executive Power

Jul 5, ’07 11:25 PM

Just a short post, before I head to bed for the night. It struck me more forcefully than ever, reading Mason and Madison in the Virginia debates on ratification, that originalism or textualism is a double-edged sword for the Republican party and the conservative movement in general.

For although they have a point about originalist understandings of things like the Commerce clause, the modern doctrine of Executive power, and especially the John Yoo-types who preach about the “Unitary Executive” have to stay awfully quiet about original understandings and texts.

Because the Founders were emphatically clear on this point, and left behind a stark record of their fears on Executive power. In keeping with a short post, I’ll simply point you to Farrand’s Records of the Philadelphia Convention, and the Federalist Papers, as key texts in elucidating the Founding opinion concerning executive power. The “elevator pitch” is this: the Founders had just rebelled against the tyranny of a strong Executive who appropriated legislative and even judicial authority in his dealings with the Colonies, and the original “constitution” for the newly free states — the Articles of Confederation — reflected this general fear and left the Confederal government nearly powerless in most respects.

Indeed, the Founders who gathered in Philadelphia in 1787 to revise the Articles, but who decided to write a new Constitution instead, gave much thought to the proper limits on Executive power. Alexander Hamilton, himself in favor of a relatively strong Executive branch and Federal government, took pains in Federalist No. 69 to demonstrate the many ways in which the new Constitution rendered the Presidency unlikely to transgress the limits set forth for it. It is well worth reading — not because the Founders got it right, the 20th and 21st centuries amply demonstrating how presidents can escape these bounds — but for the tone and mode of Founding thought. Even Founding advocates of a strong Executive branch had major concerns about the dangers that lie in interpreting the powers of the Presidency too broadly.

And this is merely a sample. Read any of the Federalists, who supported the new structure, and you’ll see the same fear of an overreaching executive. Read any of the Anti-Federalists, who opposed the entire idea of a strong Federal government, and you’ll see even stronger arguments for limits on Presidential and Federal power.

What you won’t see is an originalist or textualist basis for the “Unitary Executive” or the “National Security State” or any of the other modern justifications for the massive erosion of the separation of powers now underway.

And that has to make you wonder, are they simply employing originalism, textualism, and “strict construction” when it suits them? The answer seems clear: originalist legal scholars are largely consistent, while political appointees and elected officials appear fairly “opportunistic” in their deployment of interpretive principles.

So just say “no” to John Yoo and other scholars who purport to have evidence that the Founders wanted a strong, activist Executive Branch all along. Read the Founders for yourself and understand why they trusted Congress far more than the Presidency. Read the Founders and I think you’ll come away with the same feeling I have: there is absolutely no question that James Madison, George Mason, Alexander Hamilton, and others would look at the modern Presidency and conclude that we had recreated monarchy, without inheritance. That contrary to the spirit of the Founding generation, the modern Presidency is headed towards — or has already become — an elected monarchy.

One wonders what James Madison, not to mention Thomas Jefferson, would think about our blind acceptance of what they fought to escape.

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