I'm not even going to try to get into the legalities or none-legalities of the latest hoo-ha -- primarily because no one can seem to get revved up about the LAST scandal, in which the NSA/Administration circumvented the FISA court in a plainly illegal manner and yet garnered barely a peep.
Seriously, let's go back to the first FISA case again before we dive into the new stuff. Maybe it wasn't explained simply enough. I know -- let's revisit it using only one syllable words, except for proper nouns like "Congress" or "Bush Administration". Oh and"warrant." Spot me "warrant":
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Say the Bush Administration thinks a man is a terror- ... bad-dark-man who wants to kill us, and would like to tap their phone to hear their bad plot. The Bush Administration must get a warrant from some smart folk, the FISA court. The FISA court's job is to hear why the Bush Administration wants a wire tap, and to and then to hand out the warrant.
That is the law. It is a law made by Congress. The Bush Administration must heed the law. It does not matter if the President likes the law or not. That is his job in what I like to call the Constitution. The Constitution is good.
Q: What if the court takes too much time? We could die from bad-dark-man plots and bombs!!
A: The way the FISA court works, you don't have to go see them that day. You can start the wire tap first, then go see the FISA court in three days.
Q: Hmmm, but what if the court wants too much proof, and the NSA does not get its wire tap? We could die from bad-dark-man plots and bombs!!
A: It is not hard to get a "yes" from the FISA court. It is, in fact, no sweat, child's play, slight, smooth, a snap. It is the town bike of courts. It is the Paris Hilton of courts. Pet the dog, buy the third drink, and you are in. Through the end of the year 2004, the FISA court said "yes" to 18, 761 warrants. They said "no" to five. 5 is much much much less than 18761.
Q: Hmmm. It is cinch to heed the law then, and still keep us safe. YAAYYY!
A: But the Bush Administration did not heed the law. With no warrants, it spied on some phone lines. It spied on a LOT of phone lines.
Q: Why? Did they say why they broke the law?
A: They gave two "why"s. First, the Man who ran the NSA wire taps said that to go to the FISA court, and do what the law and Constitution say --
Q: The Constitution is good!
A: ... yes. The Man who ran the NSA wire taps said that to go to the FISA court would take too much time, and they would have to fill out a lot of forms!
Q: Ummm ... huh.
A: Yep.
Q: That does not seem like a good "why."
A: Nope.
Q: You would think they would have guys whose job it is to fill out forms.
A: You would.
Q: That guy is a bad boss for the NSA! Did the President fire him?
A: No. The President wants him to run the CIA.
Q: ... What was the President's "why"?
A: The President said he does not have to do what the law says.
Q: ... wait. Wait one bit. That is not a "why". This is, um, weird. The President has to do what the law says. That is how we know he is not a king.
A: We are at war, and so if the President thinks a law gets in his way when he wants to catch a bad-dark-man, he does not need to do what the law says.
Q: ... the President can break the law? All laws?
A: No.
Q: Phew.
A: No, I mean you don't get it. This President says that if he breaks a law when he thinks it is the right thing to do to catch bad-dark-men, he did not break the law at all. The law, for him, does not work. He claims this part of the Constitution says that he can do this.
Q: Wait. Wait. That is -- but laws that don't help him fight the war. He has to do what those say! Right?
A: No. Bush claims that for more than 750 new laws, he ... just does not care that they are laws "of the People, for the People and by the People". He does not like them. He does not have to do what they say. Just 'cuz.
Q: ... fuuuuuuck.
A: Now you get it.
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It literally does not get easier to understand than that. To recap --The Administration actually admitted that it broke the law because a.) it involved too much paperwork and b.) the President can ignore any law he needs to, as long as he does so when, in his own personal judgement, he is defending the nation. The fact that this is an eternal war, where there's no end zone, no definable victory condition (as "Terror" very well can't show up and sign the surrender papers aboard the USS Missouri), and the enemy is whoever the Administration declares, that should not worry you. After all, we promise, it's not you we're spying on. It's bad people.
Then, we found out it wasn't just NSA arcana. The President just picks and chooses which laws he's going to have the Executive Branch obey. And somehow we all moved right along. Given that and we couldn't rouse people, I have no hope of the public understanding the niceties of pen register laws.
Glen Greenwald, as always, has the cautious, thorough examination of this new issue which will, of course, immediately get him labelled a traitor.
I'm sorry you need a daddy, a priest or a king in the White House to feel better. That's not patriotism -- that's fear dressed up as patriotism. I'm going to go with Madison here:
From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.
His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.
Oh, and to save some time in the Comments section:
Comment: You can't ask the President to protect us, and then not let him do his job!
Answer: There is nothing stopping the President from doing his job. That law may well be the easiest law in the world to follow, subject to the loosest court in the land. To boil it down mathematically, if you had an arrangment by which you could fuck other women, then three days later tell your wife, and 98% of the time your wife said "Sure, whatever," you would still be working under stricter rules than the FISA law.
To extend the metaphor, if you told me you can not get laid enough under that relationship, I can only surmise that is because you are up to some very, very dodgy stuff. The legal equivalent of furries. Trek Furries. Scat Trek Furries. With Electro.
Comment: "This is no big deal, and you have to trust the people in power to do the right thing."
Answer: Ahem. The entire FUCKING POINT OF THE UNITED STATES OF AMERICA IS THAT YOU DON'T "JUST TRUST SOMEONE" BECAUSE THEY ARE IN POWER. Thomas Jefferson would stab you in the neck with a spoon if he heard you say that.*
On a more specific note, there may be some Administrations I would barely consider trusting with this sort of behaviour. The one with Karl Rove in it? Not so much. Even if there's no malice aforethought, these are the people who fucked up New Orleans. These are the people who fucked up Iraq. They are just very bad at their jobs. If they were at least efficient, I would sleep better. As far as I know, a list of all my phone calls are currently sitting in a dumpster next to the name of the guy carrying the nuclear football.
Comment: "We need to catch the bad guys, and anything is worth --"
Answer: Have you secured the ports yet? Secured the chemical plants? Figured out a way to scan all the luggage on US flights? Worked out the kinks in the retarded "No Fly" list? Started buying up some of the 2,000 loose nukes in Russia? Gotten first responders the equipment they need in case of emergency? Fixed FEMA and Homeland Security? Caught Osama Bin Laden? Tell you what, nail down the jobs that don't require you to wipe your ass with the Constitution first.
There. That should save some time. Now you can jump straight into "Credit cards sell these kinds of records all the time" and "This is an MSM plant to derail Hayden's hearings for the CIA." Keep up the pace, people.
* Oh, and in in the name of Christ don't pull the FDR case out either, and start crowing about the big win. He thought he was working within the scope of the law. These laws we have now were put into effect to ...never mind. Glenn explains that here, too.
EDIT: Thanks for all the links, folks. I hope it's not an imposition to remind you that we're raising funds for a facility for families of wounded veterans of the Iraq war here, so if you found this useful or linkworthy, please toss a buck or two into the pot.
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