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December 19, 2005
Better Red than Liberty
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.--BENJAMIN FRANKLIN, Pennsylvania Assembly: Reply to the Governor, November 11, 1755
In last night's speech and today's press conference, President Bush decided to again use fear to push his agenda. He cited the attacks on 9/11 to justify his use of warrantless eavesdropping.
I've been looking over Article II today, and I have yet to find anywhere in which the President is given authority to spy on US citizens without a warrant.
The Republicans like to tell us that they believe in a "strict constructionist" Constitutional interpretation.
Constructionism is easily abandonded when it doesn't suit the agenda, it seems.
And those who support Bush have no problem using their fear as an excuse to abandon their principles of constructionism...or to violate the basic civil liberties of American citizens.
At least that's what the red writers tell us:
But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.
People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.
FISA court allows for emergency eavesdropping without a warrant, as long as the paperwork is filed after the fact. The paperwork York is babbling about comes after the surveillance had taken place. Nothing inhibits these quick emergency eavesdrops. This is fear mongering.
And Orin Kerr tries to tell us that it's Constitutional to eavesdrop on Americans without a warrant. Using the 4th Amendment..Kerr stretches precedent to maximum capacity. I'm no lawyer and I don't play one on this blog...but it appears that Kerr is trying to use unsettled SCOTUS precedent on eavesdropping. Not even Bush tried that in his speech or his press conference. Kerr does what the rest of the rightwing hackosphere has done with FISA..elminating the provision that requires an after-the-fact filing of paperwork to obtain a warrant.
And then there's Ann Althouse, who trots out this old saw:
Members of Congress were briefed about the program in the past and did not see fit to take a position about it one way or the other. They were content to let the President act and but feel pressured to do something now that the program is no longer secret. Let's see what they do.
Not so much, Ann. Pelosi says she filed a classified grievance letter. Reid says that the vast majority of Senators (including most who serve on the Intelligence Committee) heard about the program via the NYT. Feingold had no idea and neither did former former Senator Graham, who chaired the Senate Intelligence Committee.
Reminds me of the blathering that the rightwing did about Congress having the same intelligence on Iraq that the President did. That turned out to be a lie too.
These people are trying to use fear to take away our liberty.
Posted by Carla at December 19, 2005 02:51 PM
