Monthly Archives: December 2005

It’s All About Power

You may think that the recent revelations about domestic spying by the Bush Administration have little to do with equal rights for gays, or for that matter, with the lawful behaviors of most American citizens.

You would be wrong.

Put aside the fact that gay rights groups in some parts of the country have been targeted for “monitoring” (along with Quakers, animal rights activists and other suspicious types) as presumed “terrorist threats.” Put aside the personalities and policy preferences of this particular White House. The Administration’s effort to exert and vastly expand unchecked executive power would be both dangerous and un-American no matter who was in office and no matter what the agenda.

Let’s review what we know: the Administration has been “mining” enormous amounts of data, obtained by “monitoring” (i.e. listening and reading) vast numbers of telephone calls and emails, without going to the trouble of obtaining a warrant. As a former lawyer for the CIA put it in a recent op-ed in the Washington Post, “it is clear that the courts did not have any role in reviewing this assertion of executive authority…[instead] an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That’s neither a check nor a balance.”

When speed and secrecy are concerns, government officials needing authorization for domestic spying can go to the special Foreign Intelligence Surveillance Act (FISA) court set up by Congress in 1978 for just this purpose. That court can approve eavesdropping in hours, even minutes, if necessary. In fact, the law specifically allows the government to eavesdrop on its own in a pinch, and justify its action to the court retroactively. The FISA court has certainly not been picky; since 1979, out of tens of thousands of requests, it has denied exactly four.  Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or dissenters who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.)

The Administration argues that it should not have to incur the “burdensome” task of complying with the Fourth Amendment.  Indeed, the administration has complained bitterly that even the FISA process demands too much: that it describe a target (the name is not required) and give a reason to spy on it. As one government official recently put it, “For FISA, they had to put down a written justification for the wiretap. They couldn’t dream one up.” (“Because I say so, that’s why” doesn’t constitute a justification.)

As we all learned in high school government class, our entire constitutional system is built on checks and balances. The founders had very good reasons for establishing a system that did not require citizens to simply trust that unlimited power would be exercised responsibly, and those reasons are—if anything—more compelling today. The issue is not whether we agree with any particular decision made, or action taken; the issue is whether the decision or action was legitimate, whether the applicable rules were followed. If the President is above the law, if—as Bush asserts—he has “inherent power” to do anything he and he alone decides is “necessary,” there is no law.

Let’s put this in less abstract terms. As Larry Johnson has recently written, under the logic of the Administration’s argument, if the President were to decide that pedophilia is necessary to save the nation, he would have “inherent authority” to engage in it. If you think that is absurd, it is; but just try to explain how it is logically different—and why.

Bush’s assertion that he has the power to do whatever he wants, whether there are existing laws against it or not, without the interference of those pesky courts and/or Congress, is no different from the arbitrary actions of innumerable law enforcement officers who decided before Lawrence v. Texas to enforce anti-sodomy laws against some people but not against others, or the decisions of southern sheriffs to turn a blind eye to evidence that “Bubba” was involved in that lynching down the road. As they used to say in the old Westerns, “I’m the law in these parts, fella.”

In a country without respect for individual rights and the rule of law, marginalized groups are always the first to suffer. But they aren’t the last.

  

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Snoopgate

Newsweek calls the revelation that the Bush Administration has been routinely spying on thousands of American citizens “Snoopgate.”

 

For his part, President Bush has angrily condemned the leak of information about his domestic spying program—indeed, he has shown far more righteous indignation than he demonstrated over disclosure of the identity of CIA agent Valerie Plame, even though that leak arguably did endanger national security.

 

Bush’s defense of his actions boils down to two claims: as President, he has “inherent authority” to do anything he damn well pleases; and following the law would be “too cumbersome.” The first claim is too specious to require rebuttal. (If the President has “inherent power” of that magnitude, why do we need the Patriot Act? And what about the President’s constitutional duty to uphold and obey the laws?) The second is equally without merit. As Newsweek notes, the special court set up by Congress in 1978 can approve eavesdropping “in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify to the court.” The court has also looked favorably on Administration applications: since 1979, out of “tens of thousands” of requests, the court has denied exactly four.

 

Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or others who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.) And indeed, the New York Times reports that the FBI is gathering covert intelligence on such threats to American security as Greenpeace, PETA, Quaker anti-war groups, and—right here in Indianapolis—a Vegan Community Project. Recently, FBI agents interrogated a student at Dartmouth who was researching a paper on communism for his Fascism and Totalitarianism class, because he had requested a copy of Mao Tse-Tung’s “Little Red Book” through inter-library loan.

 

I feel safer already.

 

As columnist Marie Cocca has noted, we now have a government that spies on its own citizens, detains hundreds of people without ever charging them, and maintains prisons throughout the world where we evidently engage in what most people call torture. And the President justifies going to war in Iraq—despite the absence of WMDs—because that evil Saddam spied on Iraqi citizens, detained people without due process, and engaged in torture.

 

On December 9th, Doug Thompson, a former GOP operative who now writes for Capitol Hill Blue, reported on a meeting between Bush and Republican Congressional leaders on reauthorization of the Patriot Act. According to Thompson’s three (unnamed) sources, when a Congressional aide said there were valid constitutional concerns about certain provisions of the Act, the President screamed “Stop throwing the Constitution in my face. It’s just a goddamned piece of paper.”

 

Despite my strong disapproval of this Administration, I did not believe that story when I read it. But given the most current revelations, it sure seems a lot more plausible.

 

  

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Rue-minations

In the mid-1990s, the National Constitution Center surveyed national attitudes and beliefs about the Constitution and Bill of Rights. They concluded that Americans “revere” the Constitution—and have virtually no idea what’s in it. 

 

I frequently find myself thinking about that study, because it goes a long way toward explaining why many of our public debates generate more heat than light.

 

Indulge me by taking a little test (no peeking at the answer!) You go to your local license branch when it opens, and wait with a roomful of others while clerks complete opening preparations. Before they begin business, the branch manager asks for silence. A prayer to Jesus comes over the speaker system. The clerks then join in a chorus of a hymn, after which the branch officially opens for business. This is (a) an exercise of free speech rights, or (b) a violation of the Establishment Clause?

 

The answer is (b). Why?

 

The Bill of Rights is essentially a list of things that government may not do. One of those things is “establish” (sponsor, endorse or favor) religious beliefs. Another thing governments may not do is interfere with the private expression—religious or otherwise—of citizens. So the first question a court must ask when a plaintiff is alleging a First Amendment violation is: was this individual expression, which is protected? Or is it government speech, which must follow constitutional rules?

 

In the case of the license branch, it is pretty clear that the manager controls the speaker system and gets to decide who uses it, and for what purposes. The manager is a government employee, the BMV is a government agency, and that makes the opening prayer government speech. If the manager was on a busy street corner praying, government could not properly interfere with his devotions; when he is acting on behalf of the state, it is obliged to do so.

 

People fulminating that the recent ruling about prayer at the statehouse was a violation of “free speech” should read Judge Hamilton’s decision (which—despite the Speaker’s assertions—was based upon unambiguous precedent). As Hamilton points out, citizens cannot just wander up and offer prayers from the Speaker’s podium; it is not a “street corner,” but a venue controlled entirely by government. Since what is said there must be considered government speech, it is subject to rules that could not be constitutionally applied to private speech. One of those rules is that if prayers are to be offered in such an environment, those prayers must be genuinely inclusive. Not just inclusive of Christians (although, according to the Christian plaintiffs, they didn’t even pass that test), but inclusive of all Indiana citizens.

 

I have sometimes used this space to be critical of Governor Daniels, but in this case, I think he got it just about right when he said it was “regrettable” that a compromise could not have been reached without litigation. I’m told the plaintiffs tried.

 

Evidently, the Speaker figured political victories aren’t won in court.

 

 

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Living Through the Culture Wars

I know that sociologist pooh-pooh the “culture war” thesis. They insist that Americans have more in common than the prominence of wing-nuts of all varieties would suggest. I sure hope they are right, because it sometimes seems that reason and logic have been banished from the horizon.

 

A couple of recent examples (if we held a contest, there would be too many contestants to review!) include the following:

 

·        In the ongoing effort to pretend that “Intelligent Design” is science, and thus introduce a religious philosophy into public school science classes, there are a number of pseudo-scientific websites where “research” by “credible scientists” is posted. My absolute favorite—and I am not making this up, honest—was a post a couple of days ago that purported to “explain” why human males, alone among mammals (I don’t know if this is true, by the way), do not have bones in their penises. According to the post, all other male mammals have such a bone (no sick jokes about “boners” please), but the human must rely upon “hydraulics” to achieve an erection. The scientific paper examining this phenomenon found the reason for the disparity: we have misread Genesis all along. When God removed a rib from Adam in order to make Eve, it wasn’t the rib at all—it was the bone from the penis. And the evidence is there for all to see, because the scrotum is the scar left from the surgery. (The post did not address why an operation by an all-powerful God would have left a scar. Oh well…details.)

 

·        The ongoing mental case named Bill O’Reilly continues his vendetta against the hordes of Satanists who make War on Christmas. Of late, his hysterical accusations have taken a dangerously anti-Semitic tone; he recently accused George Soros (Jewish) of wholly funding the ACLU (not even predominantly Jewish—last numbers I saw suggested the ACLU is about 5% Jewish—but frequently portrayed that way) in order to wage war on Christianity. And boy, have they been successful! I guess we just don’t see that success as we listen to the most Christian President in history, pass Ten Commandment monuments erected in courthouses and city halls, and pass constitutional amendments based upon specifically Christian doctrines.

 

I could, unfortunately, go on and on and on. Tolerance seems quaint—indeed, the wing-nuts claim that failure to privilege their beliefs is intolerant.

 

In Indiana a few days ago, a federal judge—following unambiguous precedent—told the Speaker of the Indiana House that he could continue to begin sessions with prayer, but the prayer had to be genuinely inclusive—not just inclusive of different Christian denominations (arguably, it hadn’t even been that—the plaintiffs were all Christians. One was a retired Methodist minister.) The outcry was immediate. The Speaker, who knows a wedge issue when he sees it, called it outrageous, part of the plot to eradicate Christianity, and a violation of freedom of speech.  This from a man who went to law school, and presumably would not have graduated had he not known the difference between government speech and private expression.

 

On the national level, we are quite likely to place Samuel Alito on the Supreme Court. This is a man committed to expanding government power, overturning a woman’s right to choose, and dismissive (at best) of civil rights for women and African-Americans.

 

I keep telling myself this will all pass, that we are just having a bad couple of decades. But if something doesn’t re-establish sanity soon, I may have to abandon that increasingly forlorn hope.

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