Tuesday, February 07, 2006

The Rule of Law, Defined

The former president-turned-dictator and terrorist apologist has weighed in on the "legality" of the NSA domestic surveillance program. It will come as a surprise to no one that Mr. Carter believes the program is "illegal" because it violates the FISA statute, which he signed into law back in 1978. In other words, Carter is repeating the Democratic mantra that Bush violated the "rule of law" in conducting domestic surveillance, with the law being FISA.

While Jimmah wakes nostalgic for good ol' days of his presidency (how could we forget a double-digit domestic "misery" index and the Iran hostage crises), Professor Alan Meese of of the College of William and Mary has a brillant column on "what the rule of law" actually requires. It appeared in the Daily Press of Hampton, VA on 4 Feb, but it is definitely worth a read. In his op-ed, Professor Meese makes a compelling case for presidential authority to conduct warrantless surveillance, in his role as commander-in-chief. And, he exposes the intellectual bankruptcy of Carter, Leahy, Al Gore, and other members of the Democratic Party's legal affairs division.

17 comments:

The Frito Pundito said...

Well, his actions DID violate FISA and Gonzalez is not disputing that. He has argued that FISA was superceded by the resolution authorizing the use of force in Iraq, but no one disputes that the actions violate FISA

Adam S. A. said...

Carter DOES understand this law as he was the President who signed it. You may not agree with his view, but it isn't like he doesn't understand the law. I also heard several Republicans that felt the same way during yesterday's hearing.

Craig said...

Typical right-wing garbage.

Carter inherited the problems from the rotten leaders immediately before him.

He did the right things, trying to, for example, move the country away from dependancy on foreign oil (including the symbolic installation of a solar panel at the White House, yanked out by Reagan).

In fact, Carter did a hell of a lot more to win the cold war than Reagan, despite the right wing propaganda and cult doctrine - Reagan said 'tear down this wall', and Carter secretly implemented a policy designed to draw the Soviets into the 'Afghanistan trap', which had a lot more effect on the end of the USSR than Reagan's speech.

Carter - who by telling the truth gets called a 'dictator apologist' in the right wing distortions here - is right on the Bush administration breaking the law on FISA.

Gonzales' dancing around and refusing to answer the questions is a clear indicator of the indefensibility of the law-breaking he and Bush are engaging in.

They know any admission of wrongdoing will hurt them, now that a patriot revealed their illegal activities, and so they're defending the indefensible. The only question is whether the republican machine has destroyed so much of the government's integrity that is cannot hold anyone accountable.

davetimp said...

Carter as "terrorist"?? What planet do you live on? Carter as peacemaker, maybe. The only person guilty of dictatorial ambition is George Dumbya Bush! And that's going to be his downfall. There was NO REASON not to go through FISA to begin serveillance, domestic or international. THE WARRANTS CAN BE APPLIED RETROACTIVELY. Of the more than 15,000 FISA requests since it's inception, only 5 warrants have been refused. If they had any realy evidence of Al Qaida correspondence, is there any doubt that the warrant would have been issued ASAP?? Of course not! No, Bush and the slathering sycophants at his heels are far more adept at consolidating power through ignoring the law than they are at governing. Carter as tyrant?? Not even close, you halfwit! On the other hand, a president who stifles criticism, knowingly breaks and ignores laws and uses his countries military to settle personal vendettas...now that's a tyrant! That's your boy George!

TheRealSwede said...

Craig,

I've read a lot of blog posts, and I've read a lot of comments. But I'd have to say that, for cramming the largest amount of hooey in the smallest possible space, yours takes first prize. Carter's was a failed presidency, and what's more he knows it. He has spent the last 26 years desperately trying to rebuild the dike, and all that he does only further diminishes an already pathetic legacy. Even his Nobel wasn't about him - it was a political statement aimed at George Bush, and the prize committee as much as said so. A man of honor would have refused it under such circumstances. Carter didn't.

Kool Kurt said...

Yeah Carter and his Iran crisis. A small group of hostages that were eventually released.

Regan had his Iran crisis. It involved congress discovering he had secret arms deals with them to help the Contras

Now W. has his Iran crisis. An Iranian nuclear state and Iraq controlled by pro-Iranian mulahs.

Which of these Presidents are going to look like the bigger idiot in the history books?

Kool Kurt said...

Yeah Carter and his Iran crisis. A small group of hostages that were eventually released.

Regan had his Iran crisis. It involved congress discovering he had secret arms deals with them to help the Contras

Now W. has his Iran crisis. An Iranian nuclear state and Iraq controlled by pro-Iranian mulahs.

Which of these Presidents are going to look like the bigger idiot in the history books?

Spook86 said...

So many fallacies, so little time. But before I begin, let me welcome the Daily Kos crowd to this little corner of the blogosphere. Contrarian views are alwasy welcome, however misguided they might be.

Proponents of the "Bush broke the law" school of thought view the FISA statute as the supreme law of the land, trumping all else, including Presidential powers under the second and fourth amendments. In fact, the President has broad legal authority conduct warrantless surveillance and searches under these articles, declarations of war (Wilson and FDR ordered the intercept of all communications in/out of the country in World Wars I/II), with no concern for civil liberties, and the Authorization for the Use of Military Force (AMUR) in Afghanistan and Iraq.

There is a solid body of legal though and precedence to support this position. In fact, the FISA Court of Appeals wrote in 2002 that if it tried to limit the President's authority to conduct warrantless surveillance, that decision would probably be unconstitutional, and quickly overturned by the U.S. Supreme Court. Even judges who work FISA cases every day recognize that the law has its limits, and cannot trump long-established presidential powers.

It's also easy to shoot down the argument that "there's no reason not to use the FISA court." True, the court rarely rejects a search warrant request, but you ignore the bureaucracy associated with the process. Talk to career prosecutors and FBI agents who work FISA cases. It's not unusual for a FISA warrant to take a month for approval, since there has to be a finding from the Attorney General before the process can proceed. In some cases, it's taken up to six months to approve a warrant. That's plenty of time for a terrorist to move or change cell phones, and the trail has grown cold by the time the warrant is signed. Once again, there is an ample body of legal thought/precedence that supports the "hot pursuit" of terror suspects through warrantless surveillance--with prior approval from the FISA court.

Finally, I can't resist the claim that Jimmy Carter had a "secret" plan for luring the Russians into Afghanistan. That premise is simply ludicrous and doesn't pass the muster of history. When the USSR invaded Afghanistan in 1979, it was motivated (in part) by perceptions of American weakness, brought on by U.S. domestic problems (including Carter's double-digit misery index) and his handling of the Iran hostage crisis. The Soviets saw an opportunity, seized it, and we were almost powerless to do anything about it, thanks to the deep defense cuts of the Ford and Carter Administrations.

Serious aid didn't start flowing to the Mujahedin until after Reagan took office and Bill Casey began to reinvigorate the operations directorate at Langley. However, the issue remained in doubt until the mid-80s, when the U.S. finally began supplying Stinger missiles, which ended Russian air superiority. BTW, there are some Democrats who do deserve credit for the turnaround in Afghanistan, notably Texas Congressman Charlie Stenholm, who pressed the CIA early to make the missiles available. By that time, Carter had been out of the White House for more than five years.

One more point: someone described Carter's "Iran Crisis" as a "few hostages that were later released." That's a gross over-simplification, to say the least. The hostages were taken because Carter pulled the plan on a long-time U.S. ally (the Shah of Iran), the sat by while the Iranians created a theocracy whose "student" minions seized the U.S. embassy and our staff in Tehran. The 1979 revolution in Iran helped accelerate the spread of terrorism across the region; the rise of Hizballah and Hamas followed the ascendancy of the mullahs in Tehran. So, in that regard, Carter bears a share of the blame for current problems in the Middle East, as do other Presidents, who let the problem fester for decades.

Craig said...

"But I'd have to say that, for cramming the largest amount of hooey in the smallest possible space, yours takes first prize."

A big claim you utterly fail to prove.

Your entire argument consists of an 'is not, is too' response that his presidency was bad and that 'he knows it'. Wow, what an argument.

It's sad to see the low level of thinking in some people's opinions.

Carter should have refused a Nobel Prize which was honoring his work in contrast to the poor policies of the current administration - when Carter agrees with that opinion and supports the statement? Why?

The little right-wing bubble seems unaware of broad world opinion.

You should put the keyboard up now for a while, tail between legs, after making such a broadside with so little to back it up. A man with honor would.

"So many fallacies, so little time."

Thanks for the warning about your post, and your only accuracy.

Your arguments:

1. 'He has the constitutional power'.

Except that pretty much every expert I've seen who is not one of those who is of the sort to say what the right wants regardless of the truth, says otherwise. And that Bush hasn't taken this to the Supreme Court.

Let's test your theory in court: the administration is in no rush to.

2. "It's also easy to shoot down the argument that "there's no reason not to use the FISA court.""

Then why don't you do it, instead of what you did, which is a bogus argument about the administrative difficulties with month-long waits for warrants, falsely describing the process which in fact even allows the government to begin the tap immediately, with a warrant obtained days after it begins, when needed?

Your argument was simply a lie by ommission.

"Finally, I can't resist the claim that Jimmy Carter had a "secret" plan for luring the Russians into Afghanistan. That premise is simply ludicrous and doesn't pass the muster of history."

More bogus arguing from the right, who is good only at the name-calling, not the actual fact gathering which would show your claims wrong.

Let's look at the 1990's statement of Carter's National Security Advisor, Zbigniew Brzezinski, in an interview:

"Question: The former director of the CIA, Robert Gates, stated in his memoirs ["From the Shadows"], that American intelligence services began to aid the Mujahadeen in Afghanistan 6 months before the Soviet intervention. In this period you were the national security adviser to President Carter. You therefore played a role in this affair. Is that correct?

Brzezinski: Yes. According to the official version of history, CIA aid to the Mujahadeen began during 1980, that is to say, after the Soviet army invaded Afghanistan, 24 Dec 1979. But the reality, secretly guarded until now, is completely otherwise Indeed, it was July 3, 1979 that President Carter signed the first directive for secret aid to the opponents of the pro-Soviet regime in Kabul. And that very day, I wrote a note to the president in which I explained to him that in my opinion this aid was going to induce a Soviet military intervention.

Q: Despite this risk, you were an advocate of this covert action. But perhaps you yourself desired this Soviet entry into war and looked to provoke it?

B: It isn't quite that. We didn't push the Russians to intervene, but we knowingly increased the probability that they would.

Q: When the Soviets justified their intervention by asserting that they intended to fight against a secret involvement of the United States in Afghanistan, people didn't believe them. However, there was a basis of truth. You don't regret anything today?

B: Regret what? That secret operation was an excellent idea. It had the effect of drawing the Russians into the Afghan trap and you want me to regret it? The day that the Soviets officially crossed the border, I wrote to President Carter. We now have the opportunity of giving to the USSR its Vietnam war. Indeed, for almost 10 years, Moscow had to carry on a war unsupportable by the government, a conflict that brought about the demoralization and finally the breakup of the Soviet empire.

Q: And neither do you regret having supported the Islamic fundamentalism, having given arms and advice to future terrorists?

B: What is most important to the history of the world? The Taliban or the collapse of the Soviet empire? Some stirred-up Moslems or the liberation of Central Europe and the end of the cold war?"

You have your propagandistic narrative and you're locked to it.

Carter bad, Reagan hero, it's just sad to see a fellow American so tragically duped and ill-informed in the right-wing cult.

Mike said...

Sens. Brownback, Hagle, Snowe, Specter, Lugar, Collins, Sununu, Craig, Graham, McCain, Murkowski; Rep. Wilson; activists Diamond, Fein, Norquist, Hitchens, Weyrich, Barr.

These are some of the Conservatives who have criticized Bush's attempt to subvert the Constitution. Are all these Republicans al-Qaeda "apologists" in your mind now?

TheRealSwede said...

Craig,

My my - we are a nasty little troll aren't we. I love that Brzezinski interview. Talk about revisionist history. You don't suppose he has a dog in that hunt do you? He's been trying to rescue his reputation from that failure of a Carter administration too. "oh yes, we had this secret plan to entice the Soviets into invading Afghanistan, so we could defeat them and bring about their collapse". That's pretty much how you see it, isn't it Craig? Hilarious! Keep it up, you're good for a laugh if nothing else.

Oh yeah, I see your hero Carter disgraced himself again yesterday by turning a funeral into a political fundraiser. Well, I guess when you're Carter, you have to take your opportunities where you can find them.

Mike,

There's are reason why those senators and reps are called RHINOS you know. And Hitchens is not a Republican - he is simply an old leftist who woke up from his slumber on 9/11.

Chasm said...

"It will come as a surprise to no one that Mr. Carter believes the program is "illegal" because it violates the FISA statute, which he signed into law back in 1978. In other words, Carter is repeating the Democratic mantra that Bush violated the "rule of law" in conducting domestic surveillance, with the law being FISA."

It really should be no surprise at all: that is the way things work in this country - A President signs a bill which then makes it a law, not a "law," but an actual law. Then, when someone perpetrates and act that is proscribed by that law, it is called "violating the law." Simple enough for even a blind wingbat to follow.

"Proponents of the "Bush broke the law" school of thought view the FISA statute as the supreme law of the land, trumping all else, including Presidential powers under the second and fourth amendments."

Presidents must follow the law, not too hard to comprehend. The second amendment, as all gun owners know, is about regulating a militia and the fourth actually prohibits the government from acting against a citizen without a warrent - neither really helps your argument.

"In fact, the President has broad legal authority conduct warrantless surveillance and searches under these articles, declarations of war, with no concern for civil liberties, and the Authorization for the Use of Military Force (AMUR) in Afghanistan and Iraq."

Congress alone has the power to declare war - if you had actually ever read the constitution that you bandy about so flagrently, you would know that - and they have not done so. Just because the president says "we are at war" does not mean he gets special powers to undermine the constitution. We are not in an officially declared state of war and the resolutions granting use of force in Afghanastan and Iraq do not give the president powers to ignore the "law of the land."

Chasm said...

ok, I missread and misstated - I read "articles" and thought "amendments." My bad.

So upon further review, the legal arguments are theoretically interesting in regards to the Constitution, but that doesn't make the Presidents assertion that he has unlimited powers to do what he wants to he wants when he wants any more right. In fact, it seems pretty un-American to me.

Cafe Nomad said...

I'm a little confused.

How does the Second Amendment:

"A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

and the Fourth Amendment:

"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."

Allow the President to tap phones and emails without a warrant?

Seems to me that one says I can own a gun and the other is the reason our founding fathers wanted us to own guns(just in case it was being ignored).

wingbatmatt said...

Yo Spook,

Military Intelligence? Is that like "jumbo shrimp" or "honest republican"? As an expert in MI, what are your thoughts on the amount of time that a "terrorist" might give the people looking for him before he switches his mode of communication? One day? One hour? 60 seconds? Or can you possibly believe that any surveillance of this sort can be effective when the "terrorist" knows that the most technically sophisticated agents in the word are going to be tracking him? Are the “terrorists” really going to talk for hours, on an unsecured line, in depth, about their plans to kill the infidel? If they are, then 72 hours would be plenty of time I would think. We could call ol’ Jack Bauer! He seems to get it all done in 24 hours, which leaves the good guys 48 to listen to the “terrorist’s” nefarious plots and plan their demise before all the fun is spoiled by the necessity of getting a FISA warrant. No amount of wire tapping is going to prevent another 9/11 and you as the "expert" should know better than most. If the revelation of these taps were so damaging why is the CIC, the VP, and half of congress, talking them up when ever a microphone is in front of their face? These taps are fishing expeditions aimed at domestic political opponents of the current administration who have no clue that their own government might want to listen to them (and the only way that these taps might be effective)!

Craig said...

Swede, I'll respond to everything in your post of substance, that isn't simply the typical dishonest name-calling by the right:

Done.

The right is just aching to give up their constitutional rights.

It's bizarre and irrational behavior - and cowardly.

Protect us, oh great Bush... oh, you need our rights? Here you go...

Eisenhower said to beware the excessive influence on the government of the military-industrial complex. Currently we see why, and more all the time.

Nostromo said...

"In fact, the President has broad legal authority conduct warrantless surveillance...Authorization for the Use of Military Force (AMUR) in Afghanistan and Iraq."

I've read the AMUR. That interpretation is pretty freaking broad. There is no explicit authorization for wiretapping in there.

"There is a solid body of legal thought and precedence to support this position."

There is a solid body of legal thought and precedence that opposes this position as well.

"In some cases, it's taken up to six months to approve a warrant."

If your argument is that hot pursuit of terrorists will not allow us time to navigate our own bureaucracy then we should reform our bureaucracy to provide oversight, grant a larger time-frame during which targets can be surveilled before approval but after submission of the request and generally improve our means of tracking terrorists. We should not simply accept that one man has the authority to simply order this type of survellience and violate all our 4th amendment rights.

"premise is simply ludicrous and doesn't pass the muster of history."

Speaking of which:

"when the U.S. finally began supplying Stinger missiles, which ended Russian air superiority."

Handheld ground-to-air stinger missiles ended Russian Air Superiority? Talk about ludicrous claims. The missiles posed a threat to Russian helocopter gunships. But Soviet Air Superiority was unaffected. The Soviets lost because the continuing war placed a huge ECONOMIC drain on the USSR, not because the Muj gained any kind of serious advantage or mitigated Soviet military power. This is typical political pablum; taking undue credit for things other people do. Like giving Chimpy credit for Lebanon's democratic resurgence.

"The hostages were taken because Carter pulled the plan on a long-time U.S. ally (the Shah of Iran)"

Some would describe the Shah as a Dictator. Did you know that the Shah regularly held elections where 99% of the vote went to him? Sounds alot like another U.S. supported Dictator in the middle east, one named Saddam Hussein.

"sat by while the Iranians created a theocracy whose "student" minions seized the U.S. embassy and our staff in Tehran."

The roots of the Iranian revolution go back to the installation of the Shah as ruler of the country in the 1950's. Khomeini's power was in acendence throughout the 1960's and 1970's and his exile from the country by the Shah and the Shah's increasingly draconian restrictions on political expression and free speech, as well as the rampant corruption of his regime and the utter failure of the Johnson, Nixon and Ford presidencies to address the increasingly problematic Shah throughout the 1960's and 1970's led to the Iranian revolution, not anything Carter did or didn't do. While Carter bears responsibility for the handling of the disasterous hostage situation, blaming him for the Iranian revolution or the fall of the Shah or even the current situation in the Middle East is facile.