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Lawyers said Bush couldn’t spy on Americans. He did it anyway.

146 points by Libertatea 13y ago

mtgx 13y ago
It seems like the law enforcement/spy agencies modus operandi: do it illegally for a few years, and during this time lobby Congress and the president to make it "legal". Then, in case anyone catches on to what they were up to and sues them, lobby Congress to give them all immunity for their previous illegal activities. Rinse and repeat. Nobody ever gets punished, and their imagination to what they can achieve with technology is the only limit, because they can set up whatever misleading legal structure around it to justify their actions, after the fact. It seems pretty clear that they have absolutely no respect for the spirit of the law anymore, and they're always seeking for loopholes and twisted interpretations of the law (that they keep secret) to allow them do what they want. > After more than a decade, opponents of Bush’s surveillance programs have still not had an opportunity to challenge them in court And this is why America needs a Constitutional Court (not secret) to add another check on the government's power and stop them from passing unconstitutional laws, that can only be verified for constitutionality 10-20 years later, and ruin some people's lives in the process, while growing a monster for decades.
- rosser 13y ago
  And this is why America needs a Constitutional Court... While avoiding broaching the interminable debate on whether or not they're, you know, actually doing their jobs, I thought that was the very definition of SCOTUS. EDIT: I'm avoiding that debate because ISTM that one's position thereon is most likely a function of their politics, and not of whether or not the sitting justices — let alone the institution, itself — are an adequate implementation of the thing they were intended to be by Article III.
  - mcherm 13y ago
    Yes, and it appears that America is in need of such a court.
  - mtgx 13y ago
    I meant that in a very specific way. A "Constitutional Court" is what some countries have to verify the bills passed by Parliaments before they actually become laws. Think of it as a filter, that filters out all the "crap"/unconstitutional bills that Congress, either out of stupidity, or intentionally, wants to pass. But these laws can still be found unconstitutional by normal Courts, or the Supreme Court later. The point is to have this so you don't wait 10 years until you even have a judge say if it's constitutional or not, and to stop an out of control government that thinks it can pass whatever it wants, 2 days before Christmas or in New Year's Eve, when no one is paying attention. By the time the Supreme Court rules on some of those, a lot of damage has already been done, those people might not even be in Congress anymore (so they don't care what they pass), or they probably passed many more laws such as that by then, too, so the Supreme Court will never keep up.
  - semiel 13y ago
    The Supreme Court is nothing more (or less) than the final judicial authority in the United States. They can still only rule on specific cases that happen to get appealed far enough to make it to them. Courts can strike down unconstitutional sections of law, if they're implicated by a case before them. And the Supreme Court has the final say in a lot of those cases, because they're the final court of appeal. But they aren't a "Constitutional Court" in any direct or immediate way.
  - galadriel 13y ago
    The fact that courts can declare laws to be unconstitutional is a hack out of Supremacy clause, as decided by the SCOTUS itself in one of the early cases. All other rules still apply, such as proving your standing for harm, which you cannot, if the executive keeps everything secret. A proper constitutional court (as implemented by many other countries) is much more suited to these kinds of cases, which concern the spirit of Constitution, rather than specifics of harm and injuries to one specific entity.
    - aclevernickname 13y ago
      the case the parent refers to is Marbury V. Madison, where SCOTUS assumes the ability to interpret matters of constitutionality.
- kamjam 13y ago
  It seems like the law enforcement/spy agencies modus operandi: do it illegally for a few years, and during this time lobby Congress and the president to make it "legal". I guess they are operating under "It's easier to ask forgiveness than it is to get permission"
flexie 13y ago
What is even worse is that the next president - who taught constitutional law for more than a decade - cannot see the problem with his government spying on everybody.
- rayiner 13y ago
  My wife mentioned this in the car yesterday, and I think its apt. Bush was an MBA. He didn't care about the law, he just ignored it. Obama is a JD. He does care about the law, but he's also willing to entertain legal positions that make fine distinctions to go right up against what the law allows. The public, however, can't really tell the difference. To them (the subset of them that care at all) the legal distinction between collecting data and collecting metadata or targeting only non-U.S. persons doesn't resonate, and they can't see the difference between what Obama is doing and what Bush was doing.
  - twoodfin 13y ago
    What do you think the difference is? I mean isn't it possible that a) Bush and many in his administration believed their professed legal theory that the AUMF allowed surveillance beyond that authorized by FISA so long as it was targeted at Al Qaeda and related groups and b) the programs were so targeted and purely domestic intercepts were screened and destroyed? There's obviously a distinction now that the programs have FISA warrants associated with them, but it's not one I can get too worked up about.
  - bradleyland 13y ago
    It seems to me like the distinction between someone who outright lies to you and one who omits the truth. Neither are a quality I want in a President.
  - euroclydon 13y ago
    I assume this implies that, in contrast to Bush's actions as described in the article, Obama has 1) asked his AJ to sign authorizations instead of presidential/vice-presidential counsels, 2) provided the NSA with the complete text of authorizations and legal opinions, and if I've followed your posts correctly, 3) produced authorizations/opinions that are not legal contortions.
pvnick 13y ago
For someone who surrounded himself with lawyers who thought it was legal to crush children's testicles to extract information during enhanced interrogation [1], I find this particularly upsetting. [1] http://www.revcom.us/a/026/torture-victims-confront-advocate.htm http://www.revcom.us/a/026/torture-victims-confront-advocate...
- twoodfin 13y ago
  It's a sticky question how much Congress can restrain the President when executing his war powers. Obviously such an action is morally abhorrent, but some might argue that so is dropping an atomic bomb among a civilian population. Could Congress, had it been so inclined, have passed a law to prevent Truman from doing so? I don't know the answer, and I'm not sure you do either. Who we elect President matters. This is one reason why.
  - belorn 13y ago
    Don't congress need to actually declare war before the President gets to execute war powers? Congress hasn't declared war in ages.
    - twoodfin 13y ago
      It's well-established that Congress need not issue a formal declaration of war in order to authorize the President to use military force. Others here can probably speak better to why our Constitutional order evolved this way. My speculation has always been that many century-old laws are tangled up with special cases for times of formally declared war that are not suited to the era but too much trouble to excise.
      - Zigurd 13y ago
        Some would say that the lack of a formal structure of declaration of war, capitulation, occupation, and restoration of government is exactly what's been getting us in trouble and is a demonstration of what happens outside the bounds of legitimacy.
itsallbs 13y ago
This is why transparency is essential to the processes of government. Without it, the powers that be can increase their authority unchecked. Concerns over national security should come second to whether or not government is truly acting in the best interests of the public. There are tradeoffs for security, but privacy should not be the price we pay to remain "free."
- chunkyslink 13y ago
  hence the whistleblowers
TheFuture 13y ago
That's right, it's still Bush's fault. We're in Obama's 2nd term, this is getting old.
- 01Michael10 13y ago
  Yes, no need to worry about new information as it comes to light if it was in the past. We can't learn anything from history.
- ricw 13y ago
  While you're right in pointing out that the current blame can be primarily directed at Obama, it is also Bush's fault. Its a slippery slope of diminishing fundamental rights guaranteed by the constitution, and whoever follows Obama as president is likely to just follow it even further..
- sigzero 13y ago
  It started under Bush, so this is one instance where I think they are right. However, I blame Obama more because he was supposed to do the opposite.
  - jerf 13y ago
    Are you sure it started under Bush? Accusations that Echelon was being used for industrial espionage date back to the 90s. This is relevant because a creeping erosion needs to be fought differently than something that had a distinct event that caused it.
- mcherm 13y ago
  I would be happy to comment on a newspaper article about the legal opinions expressed in the Obama white house about the legality of the programs Obama has continued or created. Perhaps in another 10 years I will be able to do so.
- dllthomas 13y ago
  It's Bush's fault, and it's the fault of everyone who sat idly and ignored those of us yelling about it under Bush, and it's Obama's fault, and it's the fault of those supporting him now.
grandalf 13y ago
New strategy: Make it about Bush. Obama is at least as culpable b/c he would have had a good excuse to raise a red flag about the improprieties upon taking office.
- willvarfar 13y ago
  If it gives Obama a scape-goat and lets him turn himself into the restorer, so be it.
  - kamjam 13y ago
    I think 4.5 years in office is a little late for scape-goats now. It's not like he can use the "I didn't know, I'll put it right" excuse.
    - willvarfar 13y ago
      I don't mind if he does say he didn't know, as long as he puts it right
- mcherm 13y ago
  I suspect that Obama may actually be more culpable. But I can't read an article in a major US newspaper about the legal opinions in the Obama white house, so I can't start excoriating him for ignoring (and overriding) legal council. I can (and hereby do) excoriate him for conducting the least open and transparent white house I have experienced. As certain top politicians have pointed out[1], this is a terrible way to run a government. [1] http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment http://www.whitehouse.gov/the_press_office/TransparencyandOp...
  - dllthomas 13y ago
    Spying-While-Black?
- snowwrestler 13y ago
  First of all that's not a new strategy. :-) Second, the article doesn't mention Obama at all. I agree with you that he's just as culpable for keeping things going, but that's not really on topic. The point here is that we have been given a glimpse behind the scenes of a particular moment in time. There's no need to put a partisan spin on that.
DanielBMarkham 13y ago
I can tell this is getting serious by the increasing number of articles mentioning "Obama" or "Bush" in the headlines. Now is the time for the blame game to begin! I've said it before, and it bears repeating: this is a systemic problem. The system is set up so that it is so secret there can be no public oversight. There's no feedback loop. The most you could ask from any president is simply to air it all out in the open and let the public begin a debate. This is something that no president has done so far. I wouldn't hold my breath waiting on it to happen, either. I'm willing to cut Bush a tiny amount of slack for historical reasons. The US has traditionally temporarily restricted liberties and trampled on parts of the constitution when it was under attack. Therefore, looking at 9-11, there's no reason not to expect the pattern to continue. The problem here is the word "temporary". 9-11 wasn't just a terrible tragedy that opened a huge war effort that lasted several years and ended. It was used to create permanent changes in the way the entire system worked. In that area -- making it all permanent -- I completely blame Bush and the Congress, neither of which could have fucked things up this much by themselves. Obama walked into a mess, but he seemed to know he was walking into a mess. Why he didn't actually fix anything is anybody's guess. I'm not buying that he couldn't do it. I just don't know. I don't want to put the paranoid hat on, but I would note that members of various military agencies have been known to thoroughly "research" Congresspeople and executive branch staff in order to know how to pitch them on various issues. I firmly believe the NSA did not do this, but with all of the revelations lately, it's not beyond the realm of possibility. Can you imagine how persuasive and argument you could make to a Senator, or even a President, if you had all their emails, chat logs, cell phone records, and so forth? Like I said, I don't think it happened. But it could happen, and that's freaking scary.
gnosis 13y ago
The legalistic bickering in this thread is like a debate among frogs as to the constitutionality of their being placed in to a pot of boiling water.

146 points by Libertatea 13y ago

mtgx 13y ago

It seems like the law enforcement/spy agencies modus operandi: do it illegally for a few years, and during this time lobby Congress and the president to make it "legal". Then, in case anyone catches on to what they were up to and sues them, lobby Congress to give them all immunity for their previous illegal activities. Rinse and repeat. Nobody ever gets punished, and their imagination to what they can achieve with technology is the only limit, because they can set up whatever misleading legal structure around it to justify their actions, after the fact. It seems pretty clear that they have absolutely no respect for the spirit of the law anymore, and they're always seeking for loopholes and twisted interpretations of the law (that they keep secret) to allow them do what they want. > After more than a decade, opponents of Bush’s surveillance programs have still not had an opportunity to challenge them in court And this is why America needs a Constitutional Court (not secret) to add another check on the government's power and stop them from passing unconstitutional laws, that can only be verified for constitutionality 10-20 years later, and ruin some people's lives in the process, while growing a monster for decades.

rosser 13y ago
And this is why America needs a Constitutional Court... While avoiding broaching the interminable debate on whether or not they're, you know, actually doing their jobs, I thought that was the very definition of SCOTUS. EDIT: I'm avoiding that debate because ISTM that one's position thereon is most likely a function of their politics, and not of whether or not the sitting justices — let alone the institution, itself — are an adequate implementation of the thing they were intended to be by Article III.
- mcherm 13y ago
  Yes, and it appears that America is in need of such a court.
- mtgx 13y ago
  I meant that in a very specific way. A "Constitutional Court" is what some countries have to verify the bills passed by Parliaments before they actually become laws. Think of it as a filter, that filters out all the "crap"/unconstitutional bills that Congress, either out of stupidity, or intentionally, wants to pass. But these laws can still be found unconstitutional by normal Courts, or the Supreme Court later. The point is to have this so you don't wait 10 years until you even have a judge say if it's constitutional or not, and to stop an out of control government that thinks it can pass whatever it wants, 2 days before Christmas or in New Year's Eve, when no one is paying attention. By the time the Supreme Court rules on some of those, a lot of damage has already been done, those people might not even be in Congress anymore (so they don't care what they pass), or they probably passed many more laws such as that by then, too, so the Supreme Court will never keep up.
- semiel 13y ago
  The Supreme Court is nothing more (or less) than the final judicial authority in the United States. They can still only rule on specific cases that happen to get appealed far enough to make it to them. Courts can strike down unconstitutional sections of law, if they're implicated by a case before them. And the Supreme Court has the final say in a lot of those cases, because they're the final court of appeal. But they aren't a "Constitutional Court" in any direct or immediate way.
- galadriel 13y ago
  The fact that courts can declare laws to be unconstitutional is a hack out of Supremacy clause, as decided by the SCOTUS itself in one of the early cases. All other rules still apply, such as proving your standing for harm, which you cannot, if the executive keeps everything secret. A proper constitutional court (as implemented by many other countries) is much more suited to these kinds of cases, which concern the spirit of Constitution, rather than specifics of harm and injuries to one specific entity.
  - aclevernickname 13y ago
    the case the parent refers to is Marbury V. Madison, where SCOTUS assumes the ability to interpret matters of constitutionality.
kamjam 13y ago
It seems like the law enforcement/spy agencies modus operandi: do it illegally for a few years, and during this time lobby Congress and the president to make it "legal". I guess they are operating under "It's easier to ask forgiveness than it is to get permission"

flexie 13y ago

What is even worse is that the next president - who taught constitutional law for more than a decade - cannot see the problem with his government spying on everybody.

rayiner 13y ago
My wife mentioned this in the car yesterday, and I think its apt. Bush was an MBA. He didn't care about the law, he just ignored it. Obama is a JD. He does care about the law, but he's also willing to entertain legal positions that make fine distinctions to go right up against what the law allows. The public, however, can't really tell the difference. To them (the subset of them that care at all) the legal distinction between collecting data and collecting metadata or targeting only non-U.S. persons doesn't resonate, and they can't see the difference between what Obama is doing and what Bush was doing.
- twoodfin 13y ago
  What do you think the difference is? I mean isn't it possible that a) Bush and many in his administration believed their professed legal theory that the AUMF allowed surveillance beyond that authorized by FISA so long as it was targeted at Al Qaeda and related groups and b) the programs were so targeted and purely domestic intercepts were screened and destroyed? There's obviously a distinction now that the programs have FISA warrants associated with them, but it's not one I can get too worked up about.
- bradleyland 13y ago
  It seems to me like the distinction between someone who outright lies to you and one who omits the truth. Neither are a quality I want in a President.
- euroclydon 13y ago
  I assume this implies that, in contrast to Bush's actions as described in the article, Obama has 1) asked his AJ to sign authorizations instead of presidential/vice-presidential counsels, 2) provided the NSA with the complete text of authorizations and legal opinions, and if I've followed your posts correctly, 3) produced authorizations/opinions that are not legal contortions.

pvnick 13y ago

For someone who surrounded himself with lawyers who thought it was legal to crush children's testicles to extract information during enhanced interrogation [1], I find this particularly upsetting. [1] http://www.revcom.us/a/026/torture-victims-confront-advocate.htm http://www.revcom.us/a/026/torture-victims-confront-advocate...

twoodfin 13y ago
It's a sticky question how much Congress can restrain the President when executing his war powers. Obviously such an action is morally abhorrent, but some might argue that so is dropping an atomic bomb among a civilian population. Could Congress, had it been so inclined, have passed a law to prevent Truman from doing so? I don't know the answer, and I'm not sure you do either. Who we elect President matters. This is one reason why.
- belorn 13y ago
  Don't congress need to actually declare war before the President gets to execute war powers? Congress hasn't declared war in ages.
  - twoodfin 13y ago
    It's well-established that Congress need not issue a formal declaration of war in order to authorize the President to use military force. Others here can probably speak better to why our Constitutional order evolved this way. My speculation has always been that many century-old laws are tangled up with special cases for times of formally declared war that are not suited to the era but too much trouble to excise.
    - Zigurd 13y ago
      Some would say that the lack of a formal structure of declaration of war, capitulation, occupation, and restoration of government is exactly what's been getting us in trouble and is a demonstration of what happens outside the bounds of legitimacy.

itsallbs 13y ago

This is why transparency is essential to the processes of government. Without it, the powers that be can increase their authority unchecked. Concerns over national security should come second to whether or not government is truly acting in the best interests of the public. There are tradeoffs for security, but privacy should not be the price we pay to remain "free."

chunkyslink 13y ago
hence the whistleblowers

TheFuture 13y ago

That's right, it's still Bush's fault. We're in Obama's 2nd term, this is getting old.

01Michael10 13y ago
Yes, no need to worry about new information as it comes to light if it was in the past. We can't learn anything from history.
ricw 13y ago
While you're right in pointing out that the current blame can be primarily directed at Obama, it is also Bush's fault. Its a slippery slope of diminishing fundamental rights guaranteed by the constitution, and whoever follows Obama as president is likely to just follow it even further..
sigzero 13y ago
It started under Bush, so this is one instance where I think they are right. However, I blame Obama more because he was supposed to do the opposite.
- jerf 13y ago
  Are you sure it started under Bush? Accusations that Echelon was being used for industrial espionage date back to the 90s. This is relevant because a creeping erosion needs to be fought differently than something that had a distinct event that caused it.
mcherm 13y ago
I would be happy to comment on a newspaper article about the legal opinions expressed in the Obama white house about the legality of the programs Obama has continued or created. Perhaps in another 10 years I will be able to do so.
dllthomas 13y ago
It's Bush's fault, and it's the fault of everyone who sat idly and ignored those of us yelling about it under Bush, and it's Obama's fault, and it's the fault of those supporting him now.

grandalf 13y ago

New strategy: Make it about Bush. Obama is at least as culpable b/c he would have had a good excuse to raise a red flag about the improprieties upon taking office.

willvarfar 13y ago
If it gives Obama a scape-goat and lets him turn himself into the restorer, so be it.
- kamjam 13y ago
  I think 4.5 years in office is a little late for scape-goats now. It's not like he can use the "I didn't know, I'll put it right" excuse.
  - willvarfar 13y ago
    I don't mind if he does say he didn't know, as long as he puts it right
mcherm 13y ago
I suspect that Obama may actually be more culpable. But I can't read an article in a major US newspaper about the legal opinions in the Obama white house, so I can't start excoriating him for ignoring (and overriding) legal council. I can (and hereby do) excoriate him for conducting the least open and transparent white house I have experienced. As certain top politicians have pointed out[1], this is a terrible way to run a government. [1] http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment http://www.whitehouse.gov/the_press_office/TransparencyandOp...
- dllthomas 13y ago
  Spying-While-Black?
snowwrestler 13y ago
First of all that's not a new strategy. :-) Second, the article doesn't mention Obama at all. I agree with you that he's just as culpable for keeping things going, but that's not really on topic. The point here is that we have been given a glimpse behind the scenes of a particular moment in time. There's no need to put a partisan spin on that.

DanielBMarkham 13y ago

I can tell this is getting serious by the increasing number of articles mentioning "Obama" or "Bush" in the headlines. Now is the time for the blame game to begin! I've said it before, and it bears repeating: this is a systemic problem. The system is set up so that it is so secret there can be no public oversight. There's no feedback loop. The most you could ask from any president is simply to air it all out in the open and let the public begin a debate. This is something that no president has done so far. I wouldn't hold my breath waiting on it to happen, either. I'm willing to cut Bush a tiny amount of slack for historical reasons. The US has traditionally temporarily restricted liberties and trampled on parts of the constitution when it was under attack. Therefore, looking at 9-11, there's no reason not to expect the pattern to continue. The problem here is the word "temporary". 9-11 wasn't just a terrible tragedy that opened a huge war effort that lasted several years and ended. It was used to create permanent changes in the way the entire system worked. In that area -- making it all permanent -- I completely blame Bush and the Congress, neither of which could have fucked things up this much by themselves. Obama walked into a mess, but he seemed to know he was walking into a mess. Why he didn't actually fix anything is anybody's guess. I'm not buying that he couldn't do it. I just don't know. I don't want to put the paranoid hat on, but I would note that members of various military agencies have been known to thoroughly "research" Congresspeople and executive branch staff in order to know how to pitch them on various issues. I firmly believe the NSA did not do this, but with all of the revelations lately, it's not beyond the realm of possibility. Can you imagine how persuasive and argument you could make to a Senator, or even a President, if you had all their emails, chat logs, cell phone records, and so forth? Like I said, I don't think it happened. But it could happen, and that's freaking scary.

gnosis 13y ago

The legalistic bickering in this thread is like a debate among frogs as to the constitutionality of their being placed in to a pot of boiling water.