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Random commentary and senseless acts of blogging.
The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement. Blog critics Gryffindor House Slytherin House Ravenclaw House House Elves Beth Jacob Prisoners of Azkaban Muggles
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Thursday, December 22, 2005
In looking at the "Fact Sheet" put out by the RNC to justify President Bush's jihad against civil liberties, I couldn't help noticing that some points seemed to be a trifle misleading or simply odd. Unreliable information put out by the RNC? Hey, I'm as shocked as you are. I assume it was a simple mistake made by an obscure staffer, who by now has surely realized his error and probably feels just awful about it. I just hope the poor guy hasn't been fired. But, since it's possible that in the press of new events mistakes can be overlooked even by organizations as dedicated to integrity as the RNC, I thought I might help them by pointing out some of the problems. The first statement made is that "Presidents Bill Clinton And Jimmy Carter Both Authorized Search/Surveillance Without Court Orders". In support of this claim Executive Orders 12139 (Carter) and 12949 (Clinton) are cited. The citation from Carter is downright deceptive. Here is the RNC quotation given in full followed by the cited passage from the actual text: President Jimmy Carter: "[T]he Attorney General Is Authorized To Approve Electronic Surveillance To Acquire Foreign Intelligence Information Without A Court Order ..." Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section. This would seem to be the warrantless wiretaps referred to frequently in recent discussions of FISA, allowing the government to tap first and get permission later. The language here is a bit confusing, since section 1802 athorizes, "electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" while 1801 states "with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be... retained for longer than 72 hours unless a court order under section 1805 of this title is obtained..." It appears that the warrantless search can continue for up to a year, provided that no American's communications are intercepted. What is clear is that Carter's order is intended to implement FISA and cannot be reasonably construed to permit surveillance otherwise barred by law. The same is essentially true of Clinton's order, with the exception of the fact that it specifically allows for physical searches, while the original FISA anticipated only electronic surveillance. But Clinton refers several times to relevant sections of FISA and, while he is broadening the scope of allowed searches, doesn't appear to be modifying the procedures. Clinton subsequently requested, and got, amendments to FISA which explicitly allowed for physical searches under the existing FISA framework. The RNC also quotes Byron York as claiming that Clinton asserted the same "inherent powers" that Bush does. As ThinkProgress has noted, this claim deliberately misconstrues Clinton's position. The next section goes on to assert that Democrats were kept informed about the surveillance activites and are only complaining now. In a fairly standard device, an article from a major newspaper (the LA Times in this case) is quoted, seeming to indicate that the media is contradicting Democratic positions, when actually they're just quoting a GOP spokesliar who is attacking Democrats. Senate Intelligence Committee Chairman Pat Roberts (R-KS): "For The Nearly Three Years [Rockefeller] Has Served As Vice Chairman, I Have Heard No Objection From Him About This Valuable Program ... Now, When It Appears To Be Politically Advantageous, Sen. Rockefeller Has Chosen To Release His 2 1/2 -Year-Old Letter. Forgive Me If I Find This To Be Inconsistent And A Bit Disingenuous." What exactly is the argument being made here? Nobody disputes the authenticity of the letter Rockefeller wrote years ago, the very day he was briefed, expressing strong concerns about the program. Apparently because Rockefeller expressed those concerns to people actually responsible for the program rather than to somebody who felt no concern about the program in question and could have done nothing to stop it if he had, Senator Roberts concludes that Rockefeller must not have meant it. There's more fun in the following quote. I reprint the section which appeared in the talking points in italics, with the remainder of the sentence from the actual article in bold Roberts [Said] That As Recently As Two Weeks Ago, Rockefeller Had Expressed To Cheney His 'Vocal Support' For The Surveillance, a claim Rockefeller denied. Another quotation cited to 'prove' that Democratic leaders in Congress were kept fully informed comes from a NY Times article for which you need no more than the headline, "Spy Briefings Failed to Meet Legal Test, Lawmakers Say" to guess, correctly, that the full article carries a message rather distinct from the brief citation given. The final section discusses intelligence failures prior to 9/11. Two subjects are discussed, the failure to track 9/11 terrorists Hazmi and Mihdhar and the investigation of Moussaoui. In the former case, the problem was not that the US government lacked sufficient information to identify Hazmi and Mihdhar as potential terrorists, it was that this information wasn't shared among appropriate agencies. This was made clear in the 9/11 Commission report itself: In the 9/11 story, for example, we sometimes see examples of information that could be accessed-like the undistributed NSA information that would have helped identify Nawaf al Hazmi in January 2000. But someone had to ask for it. In that case, no one did. Or, as in the episodes we describe in chapter 8, the information is distributed, but in a compartmented channel. Or the information is available, and someone does ask, but it cannot be shared.[Final Report, 13.3] THe final section is on the failure to fully investigate Moussaoui prior to 9/11. On this matter the noted counterterrorism expert Bill Kristol is quoted, followed by an excerpt from the 9/11 Report: The Weekly Standard's Bill Kristol: Remember Moussaoui? Remember August 2001? The FBI Wanted To Go To The FISA Court To Get Surveillance Capabilities Based On What They Found On His Computer, And The Justice Department Decided No. Now, The Patriot Act Did Not Change That Standard Of FISA ... Oh my, where to begin? First, as the very next passage makes clear, Kristol is wrong on the facts. 9/11 Commission Report: "The Agents In Minnesota Were Concerned That The U.S. Attorney's Office In Minneapolis Would Find Insufficient Probable Cause Of A Crime To Obtain A Criminal Warrant To Search Moussaoui's Laptop Computer.Agents At FBI Headquarters Believed There Was Insufficient Probable Cause. Minneapolis Therefore Sought A Special Warrant Under The Foreign Intelligence Surveillance Act To Conduct The Search ... FBI Headquarters Did Not Believe This Was Good Enough, And Its National Security Law Unit Declined To Submit A FISA Application." ("Final Report Of The National Commission On Terrorist Attacks Upon The United States," The 9/11 Commission Report, 7/22/04) The FBI had Moussaoui in custody on an immigration charge. They weren't seeking permission to conduct surveillance, they wanted to physically examine his hard drive. (This would have been done using the Clinton expansion of FISA.) Why was there a problem in obtaining a FISA warrant to search the computer? A paragraph of the Report hidden by that ellipsis make this very clear: To do so, however, the FBI needed to demonstrate probable cause that Moussaoui was an agent of a foreign power, a demonstration that was not required to obtain a criminal warrant but was a statutory requirement for a FISA warrant. The case agent did not have sufficient information to connect Moussaoui to a "foreign power," so he reached out for help, in the United States and overseas. FISA was written during the Cold War, and aimed primarily at intelligence activities of the Warsaw Pact nations. It was a faulty tool against terrorism because it was designed only to address persons acting as agents of foreign powers. This weakness of FISA no longer exists; Congress has amended to Act precisely to make it more effective against terrorists who may not have connections to foreign powers. (This law will lapse if the Patiot Act isn't renewed, but like many other provisions, it could be made permanent at any time if detached from more controversial provisions.) Kristol is right in saying, "The Patriot Act Did Not Change That Standard Of FISA", but right in a way that is narrow and highly misleading. According to the DOJ, "Investigators' ability to use FISA's investigative tools to pursue individual terrorists intending to commit acts of international terrorism was added after the USA PATRIOT Act but was tied to the Act's sunset provision..." So that standard has been changed, although Kristol would rather you didn't know. Under current law, agents would be able to obtain a warrant for Moussaoui's computer without exercising any 'inherent authority' to act lawlessly. Wednesday, December 21, 2005
The Unified Theory of Republican corruption is still evasive, but getting closer: Texas prosecutor Ronnie Earle has now subpoenaed records of Brent Wilkes, the man who bribed Randy Cunningham, as well as Perfect Wave, a company controlled by Wilkes. Actually. Perfect Wave appears to be a front more than a company - there seems to be no evidence it has actual products or clients. Tuesday, December 20, 2005
Bush is placing his right to order wireless surveillance largely on his implicit powers as commander in chief. As he stated in yesterday's press conference: Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am -- I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress. Several lawyers and actual experts have weighed in on the question of whether the statutory authorization claim is valid. Short answer: dubious, at best. But it's useful to look at the Constitution and examine how broad the President's basic powers are. We have grown used to the Imperial Presidency, which exercises sweeping authority over foreign policy. Most of us can't remember any other time. But what is striking when you go back to the original text is how limited the president's Article II powers really are. The authorization passed after 9/11 is the closest the Congress has come to a formal declaration of war since 1941; even before that I don't believe the Congress has ever passed a declaration except at the request of the current President. But the tradition of the President requesting a declaration of war isn't found in the Constitution, which grants the power exclusively to Congress. The President does have power to negotiate treaties, but they have no legal force until approved by the Senate. And the President cannot name Ambassadors without the advice and consent of the Senate, except for temporary appointments made when the Senate is in recess. (That power has been abused by Bush and previous Presidents to make appointments any time Congress leaves town, even if only for a few days.) The only power in foreign affairs that the President can exercise entirely on his own is to "receive Ambassadors and other public Ministers". The President doesn't even have a clear Article II right to control the Executive departments. He chooses (with the Senate) their senior personnel and "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices". It is perhaps this phrase, rarely cited, that shows most clearly the vast gulf between the modern Presidency and the Founders's intent. It seems distinctly unimpressive, making the Presidency less like an imperial office than a teacher asigning homework. And yet it was spelled out in the Constituion; feeble as it is, it must have seemed to those who wrote this a significant branch of the office's authority. Article II doesn't even give the President explicit authority to issue orders to Executive officers; that authority implicitly came in when the President established the right to dismiss (also not granted in article II) as well as hire. Of course the President is made Commander in Chief of the armed forces and the state militias when in federal service, but that power is still highly qualified. Congress is given exclusive authority to raise funds for the military, with the explicit provision that such funds may not cover more than two years, a limitation explicitly made on no other expenditures. Congress is granted other powers which make it plain that Congress is expected to exercise extensive authority over the military. These include:
Nothing is less likely than that the Founders would ever have viewed the military as the private plaything of the President, to control free of Congressional influence. Blocking the power to maintain a standing army under the King's personal control was at the center of the crisis that led to the English Civil War in 1640. The Founders looking at Europe in the late 18th Century would have seen many examples, starting with their ally France, of how unfettered executive control over a standing army could drive an entire nation into slavery. Returning to the 21st Century, the Bush administration, which is so famously dedicated to an Originalist interpretation of the Constitution, seems to be remarkably uninterested in following it's own prescription. In only one of many Bush claims of neo-monarchic powers, the Bybee memo, a DoJ attorney asserted that: In the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A [banning torture] may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war.... Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign. As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional." Never mind the explicit comstitutional provisions which give Congress extensive authority over the armed forces, including the capture of prisoners, and the sweeping grant of the right to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers". The President does what he wants and is empowered, under this theory, to ignore the laws. The Founders didn't trust executive authority, and used Article I to bind it in two fundamental ways: the right of the Congress to enact laws which the President is required to "take care... be faithfully executed" and Congressional authority over expenditures. Along with his express disregard for law, Bush has also ignored Congress's other major check, when he used money specifically appropriated for Afghanistan to prepare his war against Iraq. And, oh yes, he's asserted the power to arrest American citizens and hold them for long periods, perhaps indefinitely, without charges or judicial oversight. If the President really can behave in this way, the anti-Federalists were right and the position is essentailly that of an elected monarch. Thursday, December 01, 2005
One rather consistent rule regarding dirty Republicans is that they travel in groups. So I decided to do some research on the invaluable Open Secrets site to see who else was involved with Brent Wilkes, aka co-conpirator number one. Wilkes and other executives in his several corporate entities have been making substantial contributions to many other Republicans than Duke Cunningham. Naturally, receipt of these legal donations isn't evidence that they have also been receiving bribes such as those Cunningham was convicted for. ADCS contributions were always to Republicans, generally to House members from Southern California. Almost all were incumbents, although Maria Garcia's unsuccessful attempt in 2002 to unseat Robert Filner (D - Chula Vista) was an exception. Several committee chairmen got ADCS money, and large amounts went to Tom Delay. The largest beneficiary who was neither a Southern Californian nor a member of the House leadership seems to have been John Doolittle (R - Auburn). Mr Doolittle's extensive ties to Jack Abramoff are the subject of this recent article in his local paper, but the article doesn't discuss Doolittle's ties to co-conspirator number one. The Senator who got the most, although the sums involved were relatively modest, was Lindsey Graham (R - SC). Although it helped to be local, ADCS beneficiaries also held strategic comittee seats like Jerry Lewis (Chair, Appropriations Committee), and Ken Calvert (Armed Services Committee). Cunningham and Doolittle sat on the Appropriations Committee. The various people associated with ADCS and Wilkes's other ventures gave directly to the politicians and to PACs that the Open Secrets website lists them as controlling, including American Prosperity (Cunningham), Superior California Fed Leadership Fund (Doolittle), and Americans for a Republican Majority (Delay). The PACs have increased activity dramatically in recent years. For instance, in the 1998 cycle Doolittle's SCFLF raised only $3644; in 2004 it raised $496,941 with significant help from ADCS, at least two other San Diego area corporate sugar daddies (HST and Pure-o Tech), and several Indian tribes which were associated with Abramoff/Scanlon. The tribal contributions started several months before Doolittle's wife began working for Abramoff. An odd chapter in this is the large number of donations made to ADCS from people affiliated with Wilkes's other business fronts, Group W and Wilkes Corporation. Most of those who listed these employers for contributions to ADCS also were executives in ADCS who listed it as an employer for direct donations to Republican candidates. That included Arnold Borromeo, Joel Combs, Cliff Rittel, and Paul Smithers, among others. ADCS contributore also included 5 members of the Wilkes family. Most payments to ADCS were made in unusual amounts: on 6/30/05 Larry Wilkes, Robert Wilkes, and Robert Williams all sent exactly $2307; on 11/25/05 12 contributions were made, 10 of them for exactly $576 apiece.
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