2006/05/27

Answering Max Boot

On May 17th, Max Boot wrote a column in the LA Times defending the warrantless NSA spying program, asserting that "So far there has been no suggestion that the NSA has done anything with disreputable motives." Actually, there have been quite a few such suggestions based on the past history of the Bush Administration. The notion that the Bush people are somehow above suspicion is a quaint one with absolutely no basis in reality. He further says near the very end of his column that:

If it is later determined that an intelligence-gathering operation was not ordered for legitimate national security objectives — if, for instance, it was designed to gather dirt on political opponents — then the culprits would be punished with lengthy prison sentences.

That's a very nice thought, but of course it's kind of difficult to see how the "culprits would be punished" if there's no investigation and before he made this statement, he spent an enormous amount of time and energy denouncing those who are "civil liberties agitators, grandstanding politicians and self-righteous newspaper editorialists" and who are "hyperventilating worrywarts [who} fret that fascism has descended." Kind of difficult to see how Max's sensible statement concerning ensuring that the warrantless NSA spying program was legitimate can be anything but a careless afterthought tacked on to the end of his screed denouncing those who oppose the program.

Assorted critics, taking a break from castigating the Bush administration for doing too little to protect the homeland, are now castigating it for doing too much.

World O'Crap clobbers this talking point extremely well:

A lot of you idiots don’t seem to understand this very important point, so let’s try to illustrate it with an analogy: An elderly woman is walking home from the bank after cashing her Social Security check. A blond 15-year old male whizzes past on a Razor and snatches her purse. She reports the theft to a cop, who immediately walks over to a bus bench and starts beating a 65-year old black woman with his nightstick. The grandstanding victim complains that this isn’t helping to get her purse back. The moral of the story is: There’s just no pleasing you people.

As there have been no captured bad guys identified as being al Qaeda operatives for the past five years, it's difficult to see how the warrantless NSA spying program is accomplishing anything of any use to regular Americans. Why would the Bush Administration continue a blatantly illegal program that wasn't doing what Bush energetically insists its accomplishing? I refer you to the first quote about "gather[ing] dirt on political opponents." There has been no proof that Bush used the NSA to give his re-election team an improper advantage during the 2004 election, but then, there's been no investigation either.

The Black Commentator reminds us that:

[Bush] comes from a family that demonstrates a blatant disregard for the most basic moral norms. Prescott Bush was a traitor in war time and a grave desecrater. George W. stole his way into the presidency and is now prepared to risk confrontation with China, Russia and the rest of the world in order to use nuclear weapons against Iran.

There is simply no evidence that the US is dealing with an honorable person who wouldn't abuse the advantage that the NSA's illegal spying program would give him. Max suggests that FISA is obsolete:

This archaic law should be euthanized. Replace it with legislation that gives the president permission to order any surveillance deemed necessary.

In a passage well worth quoting at length:

But one aspect of the administration's decision to violate FISA that has received relatively little attention is just how extraordinary is the sudden claim that FISA, after governing eavesdropping in this country for 27 years, is unconstitutional.

It's not uncommon for a law to be passed and signed into law under a cloud of questionable constitutionality. Since McCain-Feingold was enacted, for instance, scores of people have claimed that McCain-Feingold entails unconstitutional abridgements of First Amendment liberties and litigation began almost immediately after it was signed into law. Indeed, on the very day the Senate approved it, many Senators expressed their view that the law was unconstitutional. That happens commonly with laws which are believed to be unconstitutional -- substantial public debate exists among politicians, law professors, lawyers, and others regarding the law's questionable constitutionality.

But nothing like that ever happened with FISA. It was enacted in 1978 by a vote of 95-1 in the Senate. It was amended six times since then, including under the Bush presidency. President Bush asked for amendments liberalizing its provisions, and never once suggested it was unconstitutional. Four different presidential administrations prior to this one -- two Republican and two Democratic -- complied with its provisions while engaging in surveillance for foreign intelligence purposes, including during the height of our Cold War with the Soviet Union, and during all sorts of military actions, including the Persian Gulf War and military deployments in Latin America, Yugoslavia, and throughout the Middle East.

Until George Bush, no President had ever claimed that the requirements of FISA were unconstitutional. None ever claimed that their Article II powers were infringed because they had to obtain judicial warrants before eavesdropping on Americans, and none ever claimed that their ability to engage in intelligence gathering was impeded in any way by the warrant requirements of that law. There was never any debate in any prominent academic circles or among political pundits over the constitutionality of FISA. The Reagan Administration was filled with ideologues and advocates of strong executive power and yet, as it went to the FISA court every time it wanted to eavesdrop on Americans, it never once claimed that FISA was unconstitutional in any way. Nobody of any prominence did, because its constitutionality was never in doubt.

There is simply no evidence whatsoever that FISA is in any way, shape or form a hindrance to catching bad guys within the borders of the United States. Max displays a lot of misdirected anger here. The people he denounces are trying to protect American citizens. We may not know exactly what the Bush Administration is up to, but that doesn't mean we citizens have nothing to worry about.

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