Friday, December 23, 2005

Spinning the Illegal Search Issue; Gorelick Myth?

The transit strike distracted me a bit from the president's recent on-air admission of an impeachable offense, so I didn't have time to dig around for the origin of the Republican talking point that showed up as a comment on my blog last week under the entry about our lawless President.
In case you don't read people's comments, here's what ANONYMOUS said so bravely here (I think he or she was directed here after seeing me linked on Newsweek's "who's blogging" page)
Anonymous said...

Do you people not realize that the spying would have taken place even WITH a court order? All that can be argued is the process and there is evidence that the process IS LEGAL if you look at decisions on FISA by courts and if you look at what Jamie Gorelick, a Clinton Justice Department staffer, said in 1994 about the SAME subject. This is her testimony before the Senate intelligence committee on July 14th of 1994. She said, Jamie Gorelick, "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General. It is important to understand, that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
This case involved foreign intelligence gathering within US borders. All we have is yet another attempt by liberals to politicize something they actually have said they support in the past simply because of their hatred of Bush.
The main point, though, is that this spying still would have occurred EVEN with a judge's signature since the NSA has never had a warrant rejected. So why are you all so upset?


My initial response to this anonymous poster was that I'm not a Clinton supporter and wasn't then either, so I wasn't part of that "you people" that the poster was imagining, but by the way, people are upset about this because it's happening NOW, not ten years ago." But, I could have gone further and answered the question at the end.

In addition, I was curious about this claim about Gorelick and Clinton, so I decided to do a little fact checking on Anonymous's comment. I hadn't even started looking yet when I opened up FAIR's website to see this article here, which points out that at least one Republican accusation about spying during Clinton's administration actually omits a part of the sentence.
Media Matters is reporting a lot on the 994 Gorelick argument spin 1and explains some of the background, which relates to the Aldrich Ames case. If you're curious, you can read the testimony by Gorelick that the Right is calling equivalent to Bush's flagrant violation of the law. Think Progress, which brings you the Gorelick testimony, also has this article about the "Gorelick Myth."
So, since I'm het up about the president's stated argument that he gets to do whatever he wants all by himself, I'm wondering if indeed Gorelick's argument is identical to Bush's recent one. If you read them both, it is pretty clear that they are not.

Gorelick is arguing that congress should pass legislation that would establish FISA procedures for physical searches by the president in foreign intelligence cases, which did not exist at the time because the FISA court was established to govern phonetaps and other forms of electronic surveillance. Gorelick also wants to make sure Congress doesn't force the president to follow the 4th amendment when doing foreign intelligence surveillance, arguing that the 4th amendment protection against unreasonable search and seizure does not apply in foreign intelligence gathering. I see this argument as generally problematic and yes, when there was anti-terrorism legislation in 1995, I didn't support it - and erm no, I didn't vote for Clinton in 1996. However, it seems to me that Gorelick's speech exists to identify a loophole in the FISA court warrant procedures and recommends closing it so that future administrations can seek FISA warrants for physical searches - instead of going through the regular criminal courts.
Interestingly, Gorelick sites a Watergate case, United States vs. Ehrlichman 1976 to argue that the Atty General can be delegated by the President to conduct a warrantless search. Now this I find fascinating, because obviously Watergate cases should be an example that limits presidential power, but if you look at some articles that cite decisions made during Watergate, it appears that the decisionswere written in such a way as to protect executive power as much as possible.
The point remains, after all this, that the existing laws are still skewed to give the President a lot of power to do a lot of shit. As this 2002 article by Dahlia Lithwick critiquing FISA and changes to it with the Patriot Act, along with moves by Ashcroft points out, the FISA court is a super secret "spy court" and its existence is already a mistake. The article which describes the FISA's first ever rejection of an Atty General's request in 2002-2003, covers much of the same ground that Blue Chevigny did in the TAL episode "secret government" that I linked earlier - but you don't have to wade through their radio archive to hear it, you can just read it.
So, if I agree that every president has already tried to do warrantless searches and that many already have, using FISA, and the Patriot Act, what line did Bush really cross? That's what the Right wants to know.
Bush didn't even bother to go the friendliest and most super-secret court in the land to get his search warrant. He knowingly chose to violate the 1978 law that said he needed a warrant. This is unprecedented since Watergate, as James Bamford, no friend to Clinton put it in this MSNBC interview. (you have to go all the way to the bottom), in which he says :
Yes. This is the first time since basically the ‘60‘s or early ‘70‘s when the Nixon administration illegally did a lot of domestic spying with the NSA and again, that was why they created the FISA Court. What the Bush administration is doing is flaunting the law. The law clearly says if you want to eavesdrop on U.S. citizens, you only have one choice. That choice is to go to the court and get a warrant or don‘t do it.
Bush even admitted what he did, and defended it on the grounds that he's the commander in chief. What this means for "law n order" in our country is serious. As Dahlia Lithwick argues in a more recent editorial,

Americans believed they were bargaining in good faith with their government over the original deal struck in 1978 when Congress enacted the Foreign Intelligence Surveillance Act. FISA was supposed to represent a compromise between security and civil liberties, by making it illegal to spy on Americans without judicial oversight but setting the bar for such oversight quite low. Even as amended by the Patriot Act—which further lowered the standards for a FISA warrant—the statute still purported to adhere to the fundamental bargain: Americans would not be spied upon by their government without basic constitutional checks in place.
The Bush administration is forever quick to point out the flaws in all these bargains we have struck. The Patriot Act didn't go far enough, so the administration pushed for Patriot II. The Geneva Conventions afforded prisoners too many rights, so those rights were suspended. The statutory definition of torture precluded intelligence-gathering, so new definitions were invented. FISA was too cumbersome in a crisis, so it doesn't bind the president. Perhaps it's naive to think we had these negotiations in public because this delicate allocation of rights and powers is fundamental to a democracy. It's not shocking that the Bush administration sought to expand its powers. It's shocking that the president unfailingly refuses to ask.
There are two explanations for the Bush administration's failure to stay within the boundaries of the legal structures for which it's bargained: One is that the administration believes it is fighting this war on its own; the courts, the Congress, and the American people are all standing in its way. The other is that the administration is convinced that none of our statutes or policies or systems will actually work in a pinch. Our laws aren't just broken. They are unfixable.


Long and now short. President made a speech saying "I'm above the law, because there's terrorism," and a bunch of idiots are defending him by saying "b-b-b-but Clinton." ho hum.

And they call the TWU a bunch of thugs. ahhh, the hypocrisy. If it had a smell it would be burning plastic.

2 comments:

Piranha said...

Damn that is a long post! And it is time for a new anxiety index

zzkuk said...

Don't forget about Jesus General

"I want to be the first to congratulate you for what I assume was your decision to embrace white supremacy as an editorial perspective. Your first effort, a WHNS "Fox Carolina" piece (Commenter Dayv made a screencap before Fox Carolina removed the story) on Stormfront.org, was fantastic. It certainly convinced me that Stormfront is as mainstream as Young Americans for Freedom, the College Republicans, or GOPUSA."