Land of the free?

[Slim]

Originally Posted by esskreemr

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy.

All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger.

It works the same way in any country."

In the spirit of the Nacerima:

Rumor has it that the first one's they will start rounding up are those who post anti-ID and anti-Christian Fundamentalist views to fencing message boards. Careful, they know what you post.....

[esskreemr]

From a witness of Nazi atrocity:
http://100777.com/doc/785

• The propaganda.
• The lies.
• The rhetoric.
• The nationalism.
• The flag waving.
• The pretext of "preventive war."
• The flaunting of international law and international standards of justice.
• The disappearances of "undesirable" aliens.
• The threats against protesters.
• The invasion of a non-threatening sovereign nation.
• The occupation of a hostile country.
• The promises of prosperity and security.
• The spying on ordinary citizens.
• The incitement to spy on one's neighbors - and report them to the government.
• The arrogant triumphant pride in military conquest.
• The honoring of soldiers.
• The tributes to "fallen warriors."
• The diversion of money to the military.
• The demonization of government appointed "enemies."
• The establishment of "Homeland Security."
• The dehumanization of "foreigners."
• The total lack of interest in the victims of government policy.
• The incarceration of the poor and mentally ill.
• The growing prosperity from military ventures.
• The illusion of "goodness" and primacy.
• The new einsatzgrupen forces.
• Assassination teams.
• Closed extralegal internment camps.
• The militarization of domestic police.
• Media blackout of non-approved issues.
• Blacklisting of protesters - including the no-fly lists and photographing dissenters at rallies.

[jeff]

All this is wonderfully besides the point, and if anything we should discuss the wisdom of the policy behind the aphorism rather than he who spoke it, but I have some time to fritter away...

Originally Posted by Inquartata

It's called "emphasis".

Vigorously contesting a point I didn't make, while restating the point I did make is called "redundant". (Or, "didn't read what Jeff had already written")

Originally Posted by Inquartata

As I understand it---and it's been a long time since I read this, so I may not have all the details right---Franklin engaged in a bit of intrigue over some inflammatory letters from, or supposedly from, the governor of Massachusetts. The intrigue came a cropper and worse came to light in England, whereupon he received a lengthy, and public, dressing down from a high government official before some Privy Council or other. It was this public humiliation and ( to him ) unjust treatment which decided him upon a course of supporting the independence movement in America, rather than continuing to work for its interests within the Empire. Or at least so many historians have speculated.

You might want to refresh your recollection. You probably are referring to the Hutchinson letters, which were "filled with advice on how to subdue colonial unrest" (comment by the biographer, Isaacson). The letters themselves included advice like "There must be an abridgement of what are called English liberties". Franklin obtained these letters and sent them to Boston, where they were published by John and Samual Adams despite Franklin's request that they not be. This "stoked the growing fury of the radical patriots there. This was the opposite of what Frankin had intended.. The letters, he believed, might even promotea 'tendency... towards a reconciliation'" (Ibid, Isaacson)

Hence, far from this being a fit of personal pique, it was a subject of anger for many of the nascent revolutionary movement, and it should not be surprised if Franklin eventually shared in this emotion as well, as he took the brunt of the storm while in London. Yet, he still tried to effect reconciliation till he left. Hardly the picture you relate.

Originally Posted by Inquartata

He was human, was he not? All human beings are subject to human emotions. Unless it's your position that Franklin was a sociopath, I'd have to say that yes, he was probably as liable to react adversely to embarassment, attacks on his good name and political reversal as any other man.

The first sentence is a non sequiter. The remainder is speculation. He was "likely" to have "reacted adversely". So what? The Founding Fathers were loyal subjects made them not rebels - and anger at being treated shabbily figured into it for most of them. That's hardly inappropriate or irrational. Few revolutionary movements are born from circumstances of placid contentment. To claim Franklin in particular became a revolutionary due to pique is just innuendo.

Originally Posted by Inquartata

As I said, that is the contention of some historians. It makes as much sense as a possibility---no, not a certainty---as any other explanation. Hence we cannot I think take it as a certainty that his motive was purely idealistic, either...

Citations? A claim of "as much sense as" demands the "sense" (eg: the rationale) to substantiate it. As long as we're indulging in idle speculation, it's also a possibility that the British food disagreed with him.

You've yet to offer any substantiation for your speculation about his motivations that turned him towards independence.

By the way - I'll bear this in mind for your next quote from Mencken, universally regarded as cynical, bigoted, and misanthropic. Very far from "purely idealistic".

Originally Posted by Inquartata

In the light of history, it was not. But that might be as much a matter of luck as wisdom. "Fortune brings in some boats that are not steered", as Shakespeare noted.

Very unlikely as being a matter of luck. His leadership and influence before, during, and after the Revolutionary period is tremendous. To claim it "luck" is to ignore the historical record. Really, Inq - if you're going to speculate about Franklin's emotional state you might take some trouble to re-learn the history of the man. It's hardly a secret.

Originally Posted by Inquartata

Why? I see no reason to accept that as a given.

I'll try again to explain this to you: If I have little value for something, I'm more likely to sacrifice it for something of little value. If I value something very highly, I would demand something of higher value in return for giving it up. Franklin's aphorism values liberty over security. and your comment that Franklin was deeply concerne about security, indicating that he valued liberty even more.

Originally Posted by Inquartata

Nice try. Would you like to use one of your lifelines?

Huh?

Originally Posted by Inquartata

Not in the long run, clearly.

You've imputed his turn in politics to short-term things like emotional state, yet he surely could not have known that it would turn out as it did - indeed, most predictions were that the most powerful empire in the world would have squashed the puny rebels (his line about "hang together or we'll all hang separately" illustrates.)

Originally Posted by Inquartata

To continue your example, there have also been plenty of times when security was traded for an illusory liberty. Or for that matter when liberty and security were procured together. I just don't see them as invariable contraries, as Franklin implied that they were.

You are arguing against the point he did not make.

Read his aphorism more carefuly - he doesn't say they are invariably contrary. Obviously there are times when you can increase security without decreasing liberty. His aphorism refers specifically to the unwisdom of the specific case where it does decrease liberty. Inq, respond to the statement he made, not to the one he didn't make.

Originally Posted by Inquartata

OK. I've just grown wary over the years of proverbs in lieu of other arguments. The opinions of great men may carry more weight than those of lesser ones, and certainly a brilliant witticism can work a glamour on the minds of others. But after all they are still only opinions.

Quite, and we must comment and reason about the thinking behind the sound bite, rather than the sound bite itself or the "great man" who said it. Let's bear that in mind next time somebody trots out "invisible hand" (sorry, gojujay!) or "Milton Friendman said so", without troubling to establish the relevancy or correctness of those remarks.

We now return to the relevant portions of this thread, maybe.

[Slim]

Originally Posted by esskreemr

From a witness of Nazi atrocity:
http://100777.com/doc/785

• The propaganda.
• The lies.
• The rhetoric.
• The nationalism.
• The flag waving.
• The pretext of "preventive war."
• The flaunting of international law and international standards of justice.
• The disappearances of "undesirable" aliens.
• The threats against protesters.
• The invasion of a non-threatening sovereign nation.
• The occupation of a hostile country.
• The promises of prosperity and security.
• The spying on ordinary citizens.
• The incitement to spy on one's neighbors - and report them to the government.
• The arrogant triumphant pride in military conquest.
• The honoring of soldiers.
• The tributes to "fallen warriors."
• The diversion of money to the military.
• The demonization of government appointed "enemies."
• The establishment of "Homeland Security."
• The dehumanization of "foreigners."
• The total lack of interest in the victims of government policy.
• The incarceration of the poor and mentally ill.
• The growing prosperity from military ventures.
• The illusion of "goodness" and primacy.
• The new einsatzgrupen forces.
• Assassination teams.
• Closed extralegal internment camps.
• The militarization of domestic police.
• Media blackout of non-approved issues.
• Blacklisting of protesters - including the no-fly lists and photographing dissenters at rallies.

Since you're trying to further the your argument that the current adminstration are, for all intents and purposes Nazis and Bush = Hitler, I'll assume you actually do believe it.

[larry hurdiss]

Very interesting thread....
kudos to SLIM.....and to all the others as well....
even those who like to quote an old, horny, fat man's aphorisms...
( personally i like the one about "arguing over the price")
the bottom line is.................
as we were reminded long ago....
"freedom isnt free...it is accompanied by responsibilities...."
another reputed wise man is supposed to have said...
" you will know the truth and the truth will set you free"....
and my most favorite...
"Then the Lord answered Job out of the whirlwind....
Who is this who darkens counsel by words without knowledge?
Gird up your loins like a man.
I will question you and you will answer...."
Job: 38, 1-3...........
put into the vernacular....
paranoia is when you are imaging it....what is it when it is real....?
other topics just as futile....
16 % or our national budget spent for health care.....60 million uninsured...
BILLIONS spent for PET FOOD....and a child DYING every 17 seconds of hunger....
more billions spent on SPORTS.,.............
as long as the majority doesnt care enough to be RESPONSIBLE.........
these injustices will continue...........
lets just fence ~!~!~!~

[Epee_Pox]

Ignoring the hysterics on this thread, it's a little difficult to parse people's reactions to the legality.

On my reading of FISA, judical decisions on its applicability, and some of itslegislative history, I have a hard time sharing the Justice Department's conclusion that the Act authorizes domestic eavesdropping without a warrant.

However, I also do not see how FISA applies. It pertains to law enforcement actions, not to the gathering of military intelligence for the purpose of carrying out war powers. These are two very different things.

The argument is probably going to boil down to whether the executive's war powers can be limited by constitutional Fourth Amendment restrictions on law enforcement's abilities to conduct search & seizure of private communications without a warrant.

This requires two balancing tests.

First, is there an exigent circumstance that satisfies already-existing legal exceptions to the warrant requirement (such as those relied on by the NSA)? If so, then the eavesdropping is lawful, notwithstanding FISA.

Second, if there is no exigency exception, then we must weigh the individual's freedom from warrantless searches absent exigency against the general societal interest in national defense. If the general welfare is found to trump the individual's Fourth Amendment right, then the eavesdropping is lawful, notwithstanding FISA.

It boils down to where we draw the line. There are those (the ACLU & the NRA, e.g.) who always side with the individual rights over societal protections. There are others who say that national interest always trumps the individual's rights. Both extremes are of course foolish and dangerous. Fortunately, the courts rarely fall into either extreme.

So I predict that the Administration will dig in its heels and say their actions are completely proper in all ways... opponents will dig in their heels and say such actions should never be allowed... and the courts will reach a common-sense decision saying that FISA doesn't allow it, but the Constitution does, under limited circumstances which just happen to apply here.

[Epee_Pox]

See also:

[keith]

Originally Posted by Epee_Pox

<snips all the cogent well argued points>

............, under limited circumstances which just happen to apply here.

... but the issue is, to lift a quote from the PDF you posted;

"Little information is currently known about the full extent of the NSA domestic surveillance, which was revealed by the New York Times in December, 2005, but allegedly began after the President issued a secret order in 2002."

So we can I guess assume that any or all of the following is transpiring;

1) communictations between any two non-american individuals outside the US - no problem.

2) communications between an american in the US and a 'foreign agent' - probably just fine.

3) communications between two american citizens within the US - the actuall bone of contention. Obviously several variations on this one.

Since the administration hasn't made any information available it is all guessing as to what they have, or have not, been up to.

What does confuse me is why, other than perhaps to press the legal issue(??), the administration did not get warrants . Now they have been keen to protect executive privelege in general so perhaps this is all it boils down to.

[Epee_Pox]

I've re-thought my prediction:

I doubt that any intercepted individual is going to be notified of the fact that they were subjects of eavesdropping in this case, so there won't be anyone to bring suit to test the legality of the Administration's actions in court.

I'd bet money that the Administration is counting on this.

So what'll probably happen is both sides will dig in their heels, members of Congress on either side will introduce legislation expressly precluding/authorizing this eavesdropping, and a year or two from now we'll have a compromise position that most Americans can live with. (Most Americans appear to support the President's position at present, by a slim majority. This can change.)

[Philistine]

Originally Posted by Epee_Pox

{snip}However, I also do not see how FISA applies. It pertains to law enforcement actions, not to the gathering of military intelligence for the purpose of carrying out war powers. These are two very different things.
{snip}

Actually, you have it backwards.

FISA is explicitly for gathering intelligence, and only incidently for law enforcement to the extent criminal actions are either being engaged in/planned by foreign powers or are incidently intercepted.

In fact, prior to the Patriot Act, there were extremely stringent prohibitions on using material collected pursuant to FISA in any criminal prosecution--or even disclosing it to criminal investigators.

--Philistine

[Krazyhades]

Ok, I just wanted to say that I am an American, and proud to be an American. But I am certainly not proud of my goverment. Nor of those morons who voted for Bush (If you are a Bush fanatic, we can argue about that later). I just wanted to make it clear that not all Americans are stupid Bush supporters, and that one can be proud of one's nationality while disliking the current governmental leaders.

[Inquartata]

Originally Posted by achilleus

My comment about the good point was in regards to Ess' post saying that despotic regimes have to start somewhere.

OK...and the follow-up about the "parallels" and the movie was a comment on a separate matter entirely? If so, it was intended to say---what?

Historians and pundits made comparisons between the post 9/11 US and pre WWI Germany. Not just one historian or pundit, but many.

OK. Which historians? And where?

Not that it proves that their comparisons are apt, of course, but it'd be nice to have a few specifics. ( Feel free not to bother with the pundits, of either political persuasion---having obtained a newspaper columnist's job does not make one an expert on a given subject. )

A filmmaker decided to film a documentary exploring these comparisons.

What was it's title, and who made it? Alternately, where did you hear about it?

The film was pulled due to fear of sponsor boycotts. (How do I know this, I read a couple of articles on the subject. Especially when the film was pulled, it made the front page of the entertainment section of several newspapers.)

OK. Which ones, and when? Let's track it down.

Were these comparisons accurate?

It seems to me that by citing the existence of so many "parallels" that someone had made a movie about them you were advancing that conclusion as one worthy of note. Especially in a post beginning with "This is a very good point"...

Do these parallels, if they are accurate, even mean anything?

And that's my point: if you did not think so, why bring their putative existence up in the first place, unless to reinforce the "good point" comment?

I don't know, I've not voiced an opinion either way.

OK. Henceforth when we say anything tendentious let's all just assume we don't really believe what we're saying. When I make an assertion, just pretend I didn't---that I was just tossing out random facts which don't necessarily reflect my views at all.

In fact, what you perceived as my criticism of your post wasn't a criticism at all. How could you possibly have interpreted it as such? I'm completely puzzled by your response.

If you still don't get what I'm saying here, I'll just concede defeat to your superior logic and use of Latin.

Pretty passive-aggressive if you ask me.

But of course, by that I don't really mean that it sounds passive-aggressive....

[Inquartata]

Originally Posted by Philistine

But it isn't support that previous administrations have asserted that FISA was unconstitutional and didn't bind them. It is support for the contention that other administrations have believed (rightly, IMHO) that FISA isn't a grant of power--but rather a restriction on power.

The Executive's powers derive from the Constitution. FISA was an attempt to impose limits on the powers of the Executive. If the White House agrees to be bound by some such provisions, that's pretty good evidence that it feels there are no Constitutional issues with them. If it objects, that's pretty good evidence that it does. Especially when it's legal arm says so, and contends that it's powers exceed the statutory limitations.

What other grounds could there be for alleging that a law was not entirely binding on the Executive, than a Constitutional one?

The distinction is--absent FISA (putting aside 4th Amendment issues), the President would have the authority to conduct warrantless electronic surveillance on foreigners--in the US and otherwise, and also would have the right to conduct warrantless physical searches. I don't think anyone disputes this point.

And since ALL of the President's inherent powers derive from the Constitutional grant of authority, any attempt to limit what it deems an inherent power MUST involve a Constitutional issue, no?

The Goerlick/Smith issue is a red herring IMO, because what was being talked about was warrantless physical searches--which were not made illegal (at that time) by FISA.

Go back and read the passages I cited from Gorelick's testimony. It was his position ( ergo that of the Admimistration ) that there was no substantive difference between physical searches and electronic surveillance in this regard.

Goerlick, and the Clinton Administration contended that absent any law, they had a right to conduct them for foreign intelligence purposes (which again--there is not much dispute about). They did not contend, nor have I seen any contention by any previous Administration that all or a portion of FISA was unconstitutional.

Again, there is nothing else which could make a general statute, properly enacted, inapplicable to the Executive, or give the AG's office cause to venture the opinion that it conflicted with "inherent powers", is there? In this republic inherent powers come from only one place.

The fact that the word "unconstitutional" is not used in a statement does not mean that it is not being alleged or implied, especially when it's not explicable in any other sense...

The quote I saw from Smith specifically referenced Gorelick's testimony (and only Gorelick's testimony). Have you seen anything from Smith that cites as evidence for other Administrations' positions anything other than Gorelick's testimony?

No, but the quote I cited is NOT merely a commentary on Gorelick's testimony, it is Schmidt's ( not Smith, is that someone else who has remarked on the case, or just a typo? ) own considered opinion. Here is the complete piece from which I took the quote, a Chicago Trib op ed piece from last December:

http://66.102.7.104/search?q=cache:2...t%2BFISA&hl=en



In any case, has the argument now shifted from "What evidence is there to show that other Administrations have claimed that FISA was not binding on the Executive?" to "OK, but other than THAT evidence?"

In any event, how about Carter's Attorney Griffin Bell, who noted that FISA "does not take away the power of the President under the Constitution"? ( Duh. )

Or Clinton AG Reno, in 1994:

"Our seeking legislation in no way should suggest that we do not believe we have inherent authority... We do. "

As for court rulings, while lower courts have thus far found FISA constitutional they have also reaffirmed its subservience to Constitutionally granted Executive powers. I have found one appelate panel opinion on In Re Sealed Case which observed that in Truong all courts up to that point had held that Presidents have inherent power to conduct foreign intelligence searches, and went on to say that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power". ( Note: it specifically said "constitutional power". )

Yes, Truong was pre-FISA. That is often the way with precedents.

The premise is that Bush's Constitutional powers as Commander in Chief trumps Congress' ability to regulate the process of intelligence-gathering relating to military matters. (Do you disagree?)

Not in all respects---Congressional intelligence oversight is certainly an accepted power of the Legislative branch---but certainly in some respects, yes, it does. Just as Congress's powers sometimes trump those of the Executive.

For example, should Congress attempt to remove his Article II powers entirely, would that be Constitutional? I think not. And if some attempts to infringe on his power are unconstitutional, others can be as well. It depends on the specific provision being legislated.

But if the NSA is a part of the Army for Article II purposes, why wouldn't it also be for Article III purposes? Specifically Article 8: "Congress shall have the power....To make rules for the government and regulation of the land and naval forces."

Offhand, I don't know. But then, I'm not an assistant attorney general, or even a serious Constitutional law scholar.

I suspect however that conflict arises not when powers overlap but when they directly conflict. In the latter case, regulating the military does not necessarily specifically conflict with Executive command of the military ( although one can imagine sorts of attempts at regulation which would ). That is to say, Congress might well make a rule dictating the forms used in an Officer's commission, but could not set terms on how, who or if he could commision them.

FISA seems to be a "rule for the government and regulation of the land" forces (assuming the NSA is part of the land forces--which it would seem to have to be if you're arguing for "Commander in Chief" power over it for Bush).

Opinions seem to vary. Probably it'll take the Supreme Court to sort it out completely, if it ever goes that far. I myself suspect that the relevant provisions of FISA are curbs, not regulation, and thus would be illegitimate.

The problem is that the rationale used--that the "Commander-in-Chief" powers essentially allows him to ignore any law if he (and only he) feels that it trammels on his power.

I would add "And can provide a respectable legal rationale for that feeling".

Part of the confusion--IMHO, is the difference between "unconstitutional" and "illegal." They aren't the same. Many things which are illegal are perfectly constitutional.

True, but an unconstitutional law making some act illegal is simply void. That I think is the gist of the argument in this case, and we needn't concern ourselves with definitional semantics any further than that...

As a hypothetical example of an example of the President's c-in-c power meeting Congress' regulation power--The "don't ask don't tell" policy is perfectly Constitutional according to the Courts which have considered it. However, if Congress passed a law which made homosexuality irrelevant to enlistment--do you feel the President could bar overt homosexuals from enlisting as part of his Commander-in-Chief power?

This is where the "specific provision" caveat comes in. I think some provisions of FISA are merely regulatory and are presumably legitimate, as evidenced by the fact that other Administrations have said as much, in so many words ( including Gorelick ). Where FISA claims to exert a ne plus ultra limit on Executive power, however, I think it crosses the line from regulation to prohibition...and thus to infringement of a plenary power.

Your example is another specific-provision question. My instinct is to say that it is regulation only, but again I am not enough of a Constitutional law expert to say without a more extensive study of the matter.

[Inquartata]

Originally Posted by esskreemr

From a witness of Nazi atrocity:
http://100777.com/doc/785

• The propaganda.
• The lies.
• The rhetoric.
• The nationalism.
• The flag waving.
• The pretext of "preventive war."
• The flaunting of international law and international standards of justice.
• The disappearances of "undesirable" aliens.
• The threats against protesters.
• The invasion of a non-threatening sovereign nation.
• The occupation of a hostile country.
• The promises of prosperity and security.
• The spying on ordinary citizens.
• The incitement to spy on one's neighbors - and report them to the government.
• The arrogant triumphant pride in military conquest.
• The honoring of soldiers.
• The tributes to "fallen warriors."
• The diversion of money to the military.
• The demonization of government appointed "enemies."
• The establishment of "Homeland Security."
• The dehumanization of "foreigners."
• The total lack of interest in the victims of government policy.
• The incarceration of the poor and mentally ill.
• The growing prosperity from military ventures.
• The illusion of "goodness" and primacy.
• The new einsatzgrupen forces.
• Assassination teams.
• Closed extralegal internment camps.
• The militarization of domestic police.
• Media blackout of non-approved issues.
• Blacklisting of protesters - including the no-fly lists and photographing dissenters at rallies.

Gee, he forgot that both "United States" and "Deutscheland" have an "e", an "a", a "t", a "d", a "u" and an "s" in them! That proves it!

Seriously, those "parallels" apply to almost every other country on earth. I guess Cuba and Israel are of a piece with Germany, too, for instance...