Or How I Learned to Stop Worrying

Having failed to find any WMD in Iraq, George W Bush has resorted to his "freedom" agenda. Mr. Bush repeatedly claims that "democracies don’t go to war with each other." His prescription for lasting peace in the Middle East and the end of terrorism is spreading democracy (by force) to the world. In pursuing his "freedom" agenda, George W Bush, and his poodle Tony Blair, have undermined democracy in the West. Their single-minded pursuit of what they believe is just and right has now become an existential threat to western liberal democracy and our way of life.

As much of a violent and dangerous threat al Qaeda is to the United States and its allies, it has never been an existential threat. It seems inconceivable that a small group of thugs can violently destroy a political and economic power as massive as the United States. However, what al Qaeda can do is cause the United States to cannibalize itself as it undermines the pillars of democracy in its own perceived self-defense. To do so, al Qaeda needs an unwitting and fiercely ideological patsy - it has found one in George W Bush.

Bush’s notion that democracies do not war with each other is debatable at best. However, the argument, even if it is accepted, is based on the belief that the inherent restraints within democratic society prevent those societies from engaging in warfare, except as an absolute last resort. Rudolph J Rummel, one of the early proponents of the "democratic peace theory", based his theory on Immanuel Kant’s notion of "Perpetual Peace":

Rummel’s response when asked why he believed democracies didn’t fight was to recall Immanuel Kant’s Perpetual Peace, published in 1795.

Kant’s theory is that democratic leaders are restrained by the resistance of their people to bearing the costs and deaths of war. And a democratic culture of negotiation and conciliation, plus the hurdles to taking swift action, favours peace.

George W Bush, however, is actively undermining the fundamental pillar of the very theory he touts by his "stay the course" policy in Iraq. Mr. Bush says that he is not constrained by public opinion because he knows he is right. By proceeding with his policy against overwhelming public opinion, he has undermined the ideological basis of his crusade.

As George W Bush, and his poodle Blair, strain to "stay the course" against the restraints of democracy, they are beginning to damage the foundations of democratic society. One such restraint, as explicitly declared in Article II, Section 2 of the United States Constitution, is the absolute authority of the civilian leadership of the military:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

The continued pointlessness of the Iraq War is causing the military to publicly speak out against the civilian leadership that is asking them to sacrifice for a war with little or no public support.

Up until this week, most public opposition to the war has come from retired U.S. military generals. However, all that changed last week in Britain when Chief of the General Staff of the Army, Sir Richard Dannatt, spoke out against the Iraq War. Sir Richard called the coalition’s dream of bringing democracy to Iraq "naive" and he called for British troops to pull out as soon as possible. He also stated, rather unsurprisingly, that the presence of foreign troops on Iraqi soil is fueling terrorism.

Sir Richard’s candid comments sent shockwaves in London and Washington. By week’s end Tony Blair, to salvage his authority, had to declare that he agrees with his army chief and that what Sir Richard was saying was "the same as we all are." Tony Blair had in effect lost control over his military. The military leadership was openly questioning the policy of their civilian masters - a recipe for disaster in any democratic society. Mr. Bush and Mr. Blair’s blatant disregard for the normal constraints of democratic societies in their quixotic pursuit of "peace" has led to this turn of events.

Another feature of a democratic society that leads to stability and not war, according to Rummel, is its guarantee of civil liberties. Recently Mr. Bush and his war machine have taken a giant bite out of our notion of civil liberties:

When President Bush rammed the bill on military commissions through Congress, the Republicans crowed about creating a process that would be tough on terrorists but preserve essential principles of justice. “America can be proud,” said Senator Lindsey Graham, one of the bill’s architects.

Unfortunately, Mr. Graham was wrong. One of the many problems with the new law is that it will only make it harder than it already is to separate the real terrorists from the far larger group of inmates at Guantánamo Bay who were bit players in the Taliban or innocent bystanders. Mr. Graham and other supporters of this dreadful legislation seem to have forgotten that American justice does not merely deliver swift punishment to the guilty. It also protects the innocent.

…

The Military Commissions Act of 2006 makes it virtually impossible to contest a status tribunal’s decision. It prohibits claims of habeas corpus — the ancient right of prisoners in just societies to have their detentions reviewed — or any case based directly or indirectly on the Geneva Conventions. Even if an appeal got to the single appeals court now authorized to hear it, the administration would very likely argue that it cannot be heard without jeopardizing secrets, as it has done repeatedly.

The new law championed by Mr. Bush and the congressional Republicans allows the government to detain individuals without the right of those individuals to challenge their detentions. That is a license for abuse. This law prohibits habeas corpus, an idea the framers deemed so important, that they included it in the text of the Constitution itself, not in an amendment to the Constitution. Article I, section 9 of the United States Constitution states:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

We are neither facing a rebellion nor an invasion. Yet, we have suspended habeas corpus.

Bit by bit, the fabric of democracy is being undermined by Mr. Bush’s "War on Terror" and his Iraq War. We are fighting them "there" while losing freedoms here. We are undermining our democratic institutions in trying to spread "democracy" abroad. At some point, our leaders must be held accountable if democracy is to be preserved.

We can start to hold our leaders to account starting November 7th. Have no doubt that we are now facing an existential threat to our democracy from within. As we face the real enemies from outside that seek to harm us, we must guard against the forces from within that strike at our very foundations. George W Bush and his rubber stamp Republican congress have brought this challenge to our democracy. On November 7th, we are called upon to defend our democracy.

This Fourth of July was bittersweet for me. It was the first one I spent without my daughter since her birth 5 years ago. I watched our community’s big fireworks show from my driveway rather than the park where family’s gather because I didn’t want to sit there and watch without my daughter on my lap. My daughter is overseas for the summer on vacation with her mom. She wanted to be here today to join our town’s children’s parade with her friends and to sit on her dad’s lap as the fireworks lit up the sky. Instead today she is in the country of my birth and I am here without her in the country of her birth.

Today I want to share with you some of my thoughts on being an immigrant and a Muslim American citizen. This is my story only and I am not sure if there is meaning here beyond one man’s thoughts on his American journey. Nonetheless I share it with you today.

I was born a Muslim in Bangladesh - one of the world’s most populous Muslim countries. I spent most of my childhood there. I have spent part of my childhood and all of my adult life in the United States. Like most children growing up in the Third World during that time, I was fascinated with America. America was the land of Coca-Cola, bell-bottom pants, and Western movies. America was also the land of Thomas Jefferson, FDR and John and Robert Kennedy. America was the land of the Bill of Rights, the Marshall Plan and Martin Luther King, Jr. Most of all, America to me represented possibility. It was the country that could send a man to the moon and unite the whole world in one breathless moment when the first footprint was made on a world beyond our planet. Possibility.

The two Americans I admired the most when I was growing up were John and Robert Kennedy. They both represented possibility. If you go to the Third World, even today you may find in a hut in some remote village a weathered piece of newspaper with an image of JFK. JFK represented America. He sent forth an army across the Third World not to conquer by force but by example. JFK created the Peace Corps - an army of volunteers that spread the decency of America by helping the most unfortunate. JFK also stirred the world by his clarion call from West Berlin. "Let them come to Berlin", he said:

There are many people in the world who really don’t understand, or say they don’t, what is the great issue between the free world and the Communist world. Let them come to Berlin. There are some who say that communism is the wave of the future. Let them come to Berlin. And there are some who say in Europe and elsewhere we can work with the Communists. Let them come to Berlin. And there are even a few who say that it is true that communism is an evil system, but it permits us to make economic progress. Lass’ sie nach Berlin kommen. Let them come to Berlin.

JFK was larger than life. For a boy growing up in the Third World he represented America and its spirit. I finally made it to Berlin as a college student in 1987. I saw the wall that JFK gazed upon. Two years later that wall was to be no more.

Robert Kennedy was hope. His words stirred me as a child growing up on the other side of the planet and they stir me today. Edward Kennedy in his eulogy for his brother quoted him:

There is discrimination in this world and slavery and slaughter and starvation. Governments repress their people; millions are trapped in poverty while the nation grows rich and wealth is lavished on armaments everywhere. These are differing evils, but they are the common works of man. They reflect the imperfection of human justice, the inadequacy of human compassion, our lack of sensibility towards the suffering of our fellows. But we can perhaps remember — even if only for a time — that those who live with us are our brothers; that they share with us the same short moment of life; that they seek — as we do — nothing but the chance to live out their lives in purpose and happiness, winning what satisfaction and fulfillment they can.

…

Few will have the greatness to bend history itself, but each of us can work to change a small portion of events, and in the total of all those acts will be written the history of this generation.[It is from numberless diverse acts of courage and belief that human history is shaped.] Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance.

 With his voice cracking with emotion, Edward Kennedy concluded:

My brother need not be idealized, or enlarged in death beyond what he was in life, to be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it.

Those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world.

As he said many times, in many parts of this nation, to those he touched and who sought to touch him: "Some men see things as they are and say why. I dream things that never were and say why not."

Robert Kennedy took the conscience of America to the poorest of the Third World and in doing so touched us all. One can only imagine how different our world might be if this man had been allowed to live. Robert Kennedy to me was possibility.

I came to America, like many before me and many since, for a chance at a better life. I came to America because this country produced men like the John and Robert Kennedy. Even though I have spent most of my life in America I still carry the weight of being an immigrant and a Muslim in post 9/11 America. After 9/11 my loyalties were subject to question. Suddenly instead of my actions, it was my religion and the color of my skin that defined me. I have talked more about my religion since 9/11 then in all my life previously. I have mostly had to defend my religion, and by implication me, from charges that it was a religion that glorified terrorism. Yet, with all that has happened, yet despite this country being senselessly attacked, it is a testament to the tolerant nature of American society that my family and I do not find ourselves in internment camps or some other similarly constructed arrangement. It is quite likely that if an attack such as 9/11 had happened to another country Muslims like me may not have fared so well.

A large part of the reason the situation has not deteriorated to an extreme level for American Muslims like me is the Constitution of the United States. Civil liberties represented by the Bill of Rights are very much a fabric of American society. It is those civil liberties that draw immigrants like me to this country and those civil liberties that protect Muslims like me from collective punishment. Yet today these liberties are under threat from our own Government in the name of security. But I believe that the foundations of the Constitution are strong enough to withstand any challenge and, with vigilance, in the end these liberties will survive the onslaught upon them.

I look forward to a day in America when my daughter will be referred to as an American, not a Muslim American. A day when she will be judged by only her actions not her religious beliefs. That day will not come soon, but that day will come. That day will come not because American bombs will win against "terror". That day will come because of the strength of American ideas and ideals. American statesmen like John and Robert Kennedy told the world that day would come. I believe it is possible because this country is about possibility. The world awaits that day, America awaits that day, and I await that day.

"Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. " - Justice John Paul Stevens writing the majority opinion of the United States Supreme Court in Hamdan v. Rumsfeld, Secretary of Defense, et. al.

The United States Supreme Court today rejected the Bush Administration’s contention that it could ignore the United States Constitution and laws and set up kangaroo courts in which to try detainees held at Guantanamo Bay. The Court rejected the argument that the Congress had stripped its jurisdiction by enacting the Detainee Treatment Act of 2005. The Court also held that the Executive Branch must obey the law of war, the Geneva Conventions (including Common Article 3), and the UCMJ. In short, the Court held that the President is not above the law, even in a time of war.

By holding that the President must obey the laws, Justice Stevens took a giant bite out of the Unitary Executive theory that the Bush Administration loves and cherishes so much.  In rather short order, the legal arguments put forth by John Yoo justifying torture now begin to crumble. The Court’s holding that Common Article 3 of the Geneva Conventions binds the actions of the Executive nullifies the argument used by this Administration to exclude parts of Article 3 from the latest Army Field Manual on interrogation. A house of cards built on the fantasy of an unchecked ruler has crumbled today upon colliding with the United States Constitution.

The Bush Administration’s arguments for Executive overreach have never had firm legal grounding. Their grounding has been based on fear and fanaticism. The debate has always been between fanaticism and reason. Today reason won a temporary reprieve. But the fanatics are still in charge of the Ship of State. The Administration’s principal premise, whether it is to justify torture or to justify indefinite detention, has been that the people we are holding are bad, evil, horrible. Therefore, anything we do to them is justified. Every overreaching act of the Bush Administration has been predicated on that fundamental premise.

The Bush Administration tortures a prisoner because it assumes a priori that the prisoner is a terrorist. Therefore, to extract valuable intelligence that might save lives the Administration must torture the terrorist. The bush Administration detains a prisoner indefinitely because it assumes a priori that the prisoner is a terrorist. Therefore, to protect the safety of all Americans the Administration must detain the terrorist indefinitely.

This underlying premise that all we hold are terrorists has emotional appeal to supporters of the Bush Administration and many Americans who are terrified of an unseen and unpredictable enemy. The Administration knows this and never misses an opportunity to perpetuate this notion:

“The important thing here to understand is that the people that are at Guantanamo are bad people.”

“I mean, these are terrorists for the most part. These are people that were captured in the battlefield of Afghanistan or rounded up as part of the al Qaeda network."

”We’ve already screened the detainees there and released a number, sent them back to their home countries. But what’s left is hard core.”  - Vice President Dick Cheney, June 2005

The Administration’s supporters duly follow this line that everyone at Guantanamo Bay and everyone the United States tortures is a terrorist. However, there is plenty of evidence that this is not the case. Many prisoners at Guantanamo Bay were sold to the Americans by enterprising Pakistanis and Afghanis for hefty fees. A large number of these detainees were later found to be innocent and some have been released. There are others at Guantanamo, like Abdur Sayed Rahman and Muhibullah, who are being held there for reasons that defy sanity:

But there are many more, it seems, who sound like Abdur Sayed Rahman, a self-described Pakistani villager who says he was arrested at his modest home in January 2002, flown off to Afghanistan and later accused of being the deputy foreign minister of that country’s deposed Taliban regime.

"I am only a chicken farmer in Pakistan," he protested to American military officers at Guantánamo. "My name is Abdur Sayed Rahman. Abdur Zahid Rahman was the deputy foreign minister of the Taliban."

…

At one review hearing last year, an Afghan referred to by the single name Muhibullah denied accusations that he was either the former Taliban governor of Shibarghan Province or had worked for the governor. The solution to his case should have been simple, Mr. Muhibullah suggested to the three American officers reviewing his case: They should contact the Shibarghan governor and ask him.

But the presiding Marine Corps colonel said it was really up to the detainee to try to contact the governor. Assuming that the annual review board denied his petition for freedom, noted the officer, whose name was censored from the document, Mr. Muhibullah would have a year to do so.

"How do I find the governor of Shibarghan or anybody?" the detainee asked.

"Write to them," the presiding officer responded. "We know that it is difficult but you need to do your best."

"I appreciate your suggestion, but it is not that easy," Mr. Muhibullah said.

The Bush Administration not only detains people without charge who are not terrorists they have also kidnapped and tortured people who are not terrorists. By not following the laws or international Conventions, the Bush Administration has denied itself the tools to determine who is truly a terrorist and who is being unjustly held and tortured. But, based on their principal premise, the distinction between guilt and innocence need not be made.

Having lost the legal fight it remains to be seen if the Bush Administration will be able to stoke the flames of fear enough to convince the American people to look the other way as it continues to torture and detain "terrorists". The Supreme Court has spoken; will the President listen?

Yesterday I read the news that the FBI has videotape of Congressman William Jefferson (D- La.) taking bribes. I am sure you will agree with me that taking bribes is probably not the smartest or most legal thing for a Congressman to do. This morning I wake up to the news that members of Congress from both parties are furious, absolutely furious, over this latest bribery scandal.

I was getting ready to write Congress to thank them for their newfound zero tolerance policy toward criminal behavior until I actually read a little more about why Congress is so upset. Apparently Congress is upset that the FBI raided the Congressional offices of Representative Jefferson. Apparently the Executive branch has overreached and is challenging the separation of powers laid out in the Constitution. Lions, Tiger, and Bears, Oh My!

Congressmen and Senators are tripping over each other to get to the microphone and denounce the Bush Administration for endangering the Constitution.

House Speaker Dennis Hastert is outraged and ready to wrestle:

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case," he said in a lengthy statement released last night.

"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress," he said. "Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."

Senate Majority Leader Bill Frist wants an investigation:

Senate Majority Leader Bill Frist (R-Tenn.) said that he is "very concerned" about the incident and that Senate and House counsels will review it.

House Minority Leader Nancy Pelosi was a little less outraged and more circumspect:

House Minority Leader Nancy Pelosi (D-Calif.) said in a statement that "members of Congress must obey the law and cooperate fully with any criminal investigation" but that "Justice Department investigations must be conducted in accordance with Constitutional protections and historical precedent."

Former House Speaker Newt Gingrich however saw the end of the Republic:

Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line "on the edge of a constitutional confrontation," called the Saturday night raid "the most blatant violation of the Constitutional Separation of Powers in my lifetime." He urged President Bush to discipline or fire "whoever exhibited this extraordinary violation."

Why are Republicans so outraged about the President of the United States overstepping his Constitutional bounds? Shouldn’t they be jumping up and down and rejoicing that finally a Democrat has literally been caught red handed? Perhaps they fear the Police State is now about to turn on them?

Where were these same Republicans when this Administration played games with the 1st, 4th and 5th Amendments of the Constitution? Where were these same Republicans when this Administration wildly abused the President’s Article II powers? Where were these Republicans when this Administration asserted its right to violate the Constitutional protections of American citizens?

Could it be that the Unitary Executive does not taste nearly as sweet when it hits close to home? Perhaps the members of Congress are now a little concerned that the Executive branch might be tapping their phones or reading their email. It is a joke that these Republicans are now screaming about the Constitution when they have remained silent for so long as it has been trampled in the name of National Security.

I say to Senator Frist, Speaker Hastert and the rest of the Constitutionally challenged Republicans that the entire Constitution matters - not just the part that protects Congress from the Executive branch. Outrage about the "speech or debate" clause of the Constitution should be equally matched by outrage about the tearing down of the Bill of Rights. If Congress wants the American people to defend their Congress then Congress needs to do its job of defending the American people. Otherwise go whine about this in your Cloakrooms and at the House Gymnasium.

There is a remarkable opinion piece today in The Washington Post entitled "The Right Call on Phone Records". It is remarkable because the author, former Deputy Homeland Security Advisor and Deputy Assistant to the President Richard Falkenrath, has apparently taken leave of his senses.

The op-ed begins with this bizarre paragraph:

On Thursday, USA Today reported that three U.S. telecommunications companies have been voluntarily providing the National Security Agency with anonymized domestic telephone records — that is, records stripped of individually identifiable data, such as names and place of residence. If true, the architect of this program deserves our thanks and probably a medal. That architect was presumably Gen. Michael Hayden, former director of the NSA and President Bush’s nominee to become director of the Central Intelligence Agency. [Emphasis added by me]

When I read this, my initial thought was that the author was joking. But as I read through the rest of the fantasy piece I realized that Mr. Falkenrath was quite serious. I hope the remaining people at the top level of Homeland Security do not believe that a phone number is "anonymized" as Mr. Falkenrath appears to believe. If our senior leaders are this ignorant then we are in very serious trouble.  Here’s a little exercise for you, Mr. Falkenrath. Given the phone number 202-456-1414, how long will it take the NSA to find out whom this number belongs to? Ok, don’t hurt yourself. I will tell you. It will take them less then 23 seconds. Try it for yourself. Go to AnyWho and do a reverse lookup on 202-456-1414. Within seconds you will find that this phone number belongs to:

White House Switchboard Main Number

WASHINGTON, DC 20001

Very few career government officials possess the expertise, initiative and creativity needed to devise a system to penetrate such networks, using only existing statutory and presidential authorities, employing only existing technical and personnel resources, and violating the privacy of no American. Yet, if the USA Today story is correct, this appears to be exactly what Hayden did.

Some legislators and observers have questioned the legality of the alleged NSA domestic telephone records collection program. If the facts of the program are as reported in USA Today, there is every reason to believe that the program is perfectly legal.

There are, of course, strict legal limits on the ability of federal agencies such as the NSA to compel the provision of domestic information or to collect it secretly. The USA Today story, however, alleges that three telecommunications companies — AT&T, Verizon and BellSouth — provided it voluntarily. How else could one company (Qwest) decline to provide the information? Since there is no prohibition against federal agencies receiving voluntarily provided business records relating to their responsibilities, it appears that the NSA’s alleged receipt and retention of such information is perfectly legal.

Mr. Falkenrath must be patting himself on the back for his clever logical inversion here. It is a very nice argument to put the Government’s actions in the passive voice. To imply that the phone companies somehow left the phone records on the NSA’s doorstep and one fine morning General Hayden discovered these records as he went out for the morning paper is too clever an argument to sustain itself. Mr. Falkenrath ignores the fact the Government demanded these records from the phone companies without the required court orders. It went as far as to try to bully and blackmail Qwest into turning over the phone records. That kind of behavior hardly suggests that the NSA was a passive actor in this fiasco. Perhaps Mr. Falkenrath needs a reminder of the laws that were broken when the NSA demanded these records without a court order. You can read my layman’s analysis here or Professor Kerr’s analysis here and here.

Mr. Falkenrath concludes by putting in a plug for General Hayden for the CIA Director post. He also praises the can-do gung-ho attitude of General Hayden in contrast to the timidity of the rest of the bureaucracy:

Bureaucrats excel at finding reasons not to do something. They are most often guilty of sins of omission, not commission. A timid, ordinary executive might have concluded that it was too risky to ask U.S. telecommunications companies to provide anonymized call records voluntarily to an agency such as the NSA, dealing with foreign intelligence. If the USA Today story is correct, it appears that Mike Hayden is no timid, ordinary executive. Indeed, it appears that he is exactly the sort of man that we should have at the helm of the CIA while we are at war.

Mr. Falkenrath apparently does not understand that there is a difference between initiative and law breaking. The Constitution and the laws are there for a purpose. Choosing to ignore the laws does not make a good executive or a good nominee for the position of Director of Central Intelligence.

Mr. Falkenrath’s deeply flawed opinion piece should cause all citizens alarm. This opinion piece is a window into the thinking of some our top officials in Government entrusted with protecting us. The level of ignorance and incompetence demonstrated by Mr. Falkenrath may unfortunately be commonplace amongst the political appointees within this Administration. For exposing this level of incompetence, we all owe Mr. Falkenrath an enormous debt of gratitude.

USA Today reported this morning that the National Security Agency has been collecting phone records of tens of millions of ordinary Americans with the willing cooperation of the phone companies (except Quest which refused to hand over records without a court order). This disclosure caused an irritated President Bush to make a brief statement this morning. I quote the statement in its entirety:

After September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack. As part of this effort, I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. In other words, if al Qaeda or their associates are making calls into the United States or out of the United States, we want to know what they’re saying.

Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America. I want to make some important points about what the government is doing and what the government is not doing.

First, our international activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities.

We’re not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we’ve been very successful in preventing another attack on our soil.

As a general matter, every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy. Our most important job is to protect the American people foreign another attack, and we will do so within the laws of our country.

Thank you.

You will notice that the President does not deny the facts of the USA Today story. He also specifically notes that the Administration’s "international activities" strictly target al Qaeda. He leaves open the possibility that domestic activities cast a much wider net. He also notes that the Administration is "not mining or trolling" through the "personal lives" of Americans. Mr. Bush is parsing very hard here to make a distinction between personal lives and personal records. The distinction is between contents of a phone conversation and records of a phone conversation. That distinction allows Mr. Bush to escape the clutches of the 4th Amendment.

However, this new NSA spying disclosure does violate at least one and perhaps two laws enacted by Congress. Where FISA does not apply, access to phone records are covered by the "pen register" or "trap and trace device" laws. The two relevant laws are 18 U.S.C. §§3121-3127 and 50 U.S.C. §§1841-1846. In order to get the phone records of a "U.S. person" the Government must get a court order. If the Government is arguing that they need the order for foreign intelligence or terrorism related activities and the information does not concern a "U.S. person", the Government must also get a court order. In both cases the application for the court order must show that the information requested is "relevant to an ongoing criminal investigation" or is "relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities". In the case of a foreign intelligence investigation, there is a provision for an emergency authorization where the Attorney General can approve the gathering of information without a court order provided that an application is made for an order within 48 hours. There is also a provision in the law that states that in a time of war the President can authorize the collection of phone records without a court order for up to 15 calendar days following a declaration of war by Congress. There is also a requirement for the Attorney General to make detailed annual reports to Congress regarding collection of U.S. persons’ phone records and a requirement for the Attorney General to make detailed semi-annual reports to the "Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate" regarding collection of phone records related to foreign intelligence or terrorism.

The Bush Administration is almost certainly violating the law by not getting the required court orders. If the program is as widespread as has been reported the Administration would have had to apply for and receive tens of millions of court orders. The Bush Administration may also have violated the Congressional oversight requirements of the statutes. Judging by the reaction in Congress today it appears that Congress was not fully briefed by the Administration.

The argument from the Administration will probably again be reduced to a defense on the President’s alleged inherent Article II powers as Commander-in-Chief during wartime. The President will argue that the Constitution gives him inherent authority to violate duly enacted laws in his capacity as Commander-in-Chief. This is a flimsy argument at best and is quite easily debunked. In the end the Administration is left with no Constitutional leg to stand on.

When the law and the Constitution are not on his side, the President can, in the final analysis, rely upon the Republican controlled Congress to turn a blind eye once more. 

"I base a lot of my foreign policy decisions on some things that I think are true. One, I believe there’s an Almighty. And, secondly, I believe one of the great gifts of the Almighty is the desire in everybody’s soul, regardless of what you look like or where you live, to be free." - George W. Bush, April 24, 2006

But wait, there is more:

Bush said he did not remember asking the question of his father, former president George H.W. Bush, who fought Iraq in the 1991 Persian Gulf War. But, he added that the two had discussed developments in Iraq.

"You know he is the wrong father to appeal to in terms of strength. There is a higher father that I appeal to," Bush said.

Then there are those who prefer a secular country:

"Whatever one’s religion in his private life may be, for the officeholder, nothing takes precedence over his oath to uphold the Constitution and all its parts – including the First Amendment and the strict separation of church and state." - John F. Kennedy, March 3, 1959

"Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state." - Thomas Jefferson, January 1, 1802

Then there is of course the Constitution of the United States:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." - Article VI of the Constitution of the United States

And the Establishment Clause:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." - Amendment I of The Bill of Rights

So why not execute the foreign policy of the United States based on one’s own religious beliefs? What’s the worst that could happen? I mean, Really!

"It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance." -Robert Francis Kennedy

Harry Taylor showed uncommon courage yesterday by speaking truth to power.

Visit this site and make your voice heard in concert with Harry Taylor: http://thankyouharrytaylor.org/

That site has been overwhelmed by the number of users trying to access it. If you are not able to access that site, please feel free to register a one line comment in support of Mr. Taylor on my site.

I will try to get all similar sites to start a comment drive in support of Mr. Taylor until the site above is up and running again. Let’s put people power to work on the Internet.

There is much debate these days about the inherent powers of the President as Commander-in-Chief. This is the chief, and fallback, justification given by this Administration and its supporters for the continued warrant-less surveillance in contravention of the FISA Act. Today, in an extraordinary statement during the Senate Judiciary Committee hearings on censure of the President, Senator Orrin Hatch stated that no law passed by Congress, e.g. the FISA Act, could supersede the inherent Commander-in-Chief powers of the President.  This is, to say the least, a Constitutional leap of faith.

There is no passage in the Constitution that suggests that some inherent power, not explicitly granted to the Executive, can somehow trump a law passed by the Congress. In fact, the Constitution and the Bill of Rights taken together clearly argue the reverse, that the President, in fact the Government, does not have any power that has not been delegated explicitly by the Constitution. If any such inherent power exists, it is reserved for the States or the people. In The Bill of Rights, the Tenth Amendment to the Constitution states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

States’ Rights proponents usually cite this Amendment, but it is equally relevant in preserving the powers of the people. It is the ultimate check provided by the Constitution against the tyranny of the central Government.

The defenders of the Commander-in-Chief’s inherent power base their arguments on Article II Section 2 of the Constitution. Article II Section 2 states:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he 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, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. [Emphasis added by me]

The argument often made is that the President’s Commander in Chief powers are so broad that at wartime the President has inherent powers, acting as the Commander-in-Chief, to violate laws enacted by the Congress (and some even argue that he has the power to violate the Constitution itself). Any thorough reading of the Constitution’s text and the protections the founders so explicitly set forth in The Bill of Rights suggests the opposite, that the Constitution and the laws of the United States are set forth, in fact the entire reasoning behind the Declaration of Independence and the formation of the United States, to protect against the tyranny of one man (whether a monarch or a President) .

The Article I Section 8 of the Constitution gives the Congress of the United States significant war making powers. Article I Section 8 states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [Emphasis added by me]

 Article I Section 8 gives the Congress the power to make the laws that govern the armed forces. Article II Section 2 gives the President the executive authority to exercise those powers under the laws defined by the Congress and within the limits of the Constitution. Lest there be any doubt that the President somehow can put himself above the law in times of war, the Constitution says no such thing. The Constitution does, however, state quite explicitly in Article II Section 3, in defining the authority given to the President:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. [Emphasis added by me]

Taking care that the Laws are executed faithfully clearly puts the President under laws enacted by Congress. There is no question then that the President can violate FISA without his violation not being a violation of the law, and hence subject to the penalties set forth in that law.

To dispel all doubt that the governed must be protected from the evils of men with power over them, the framers amended the Constitution to include The Bill of Rights. Within The Bill of Rights, the Fourth Amendment provides protection to the citizens from an overly intrusive and tyrannical Government:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment taken together with the Congress’s expansive powers over the laws of war in Article I and the President’s authority in Article II to execute those powers under the laws enacted by Congress (for example, FISA) make the inherent Commander -in-Chief power argument seem very weak indeed.

In declaring independence from the King, the founders submitted as their first holding against the King that:

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

The founders had foremost in their mind the belief that no one, not even a King, can be above the law and that laws duly passed by the Legislature must be "assented" to by the King, or in our case, must be heeded by the President.

If we are to continue to be a nation of laws and not of men, we must cherish and uphold those laws. That is true for the governed and especially true for those who govern. It is the responsibility of the governed, through their elected representatives; to defend the law of the land and hold to account any who dare violate them.