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Lawyers said Bush couldn’t spy on Americans. He did it anyway. (washingtonpost.com)
146 points by Libertatea on June 28, 2013 | hide | past | web | favorite | 61 comments

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.

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.

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.

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.

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.

I don't think the issue is he doesn't see the problem but that he has learned is powerless to stop it. People need to realize our democratic system is broken. It's our military and intelligence industrial complexes with the government contacted corporations who benefit from them that really run things.

POTUS is far from powerless when it comes to stopping this spying. It's his wheelhouse.

The powers of the executive branch are broader than most realize.

Given the industrial spying on, well, the world, I cant see any reason why the likes of the NSA do not have possession of information that would compromise almost every elected politician the US has. Even if its small stuff, anything can be used by an opposition or media to ruin a career. In fact, dunno about the US, but here in the UK even a dodgy association can be enough.

Nothing direct, of course. All that is needed is that politicians know that the likes of the NSA comprehensively spy. These for its is sensible to assume that they could have something, even if one has forgotten it. So that uneasy feeling alone is more than enough for politicians not to rattle cages.

Given my impression that both here in the UK and in the US it seems the response to this entire issue by almost every one in the government, media, and even the comedians and satirists (who, in the UK at least, are often more in tune with reality than any one else), is really muted. It's like every one is trying to make it go away, quickly and quietly. No one wants yo get on the wrong side of the spies.

When it comes to politics, sometimes I think the US is a lot more like France than the UK. For example, we have a former Representive who tweeted a sexual picture[1] and then lied about doing so and was forced to resign but will now probably become the next mayor or New York. Then we have a state Governor who disappeared for 6 days and said he was hiking the Appalachian Trail - but he lied and was was really in Argentina having an affair with his mistress[2]. He was forced to resign but just a couple months ago ran for a house seat and won. So, scandal doesn't really mean much in the US either.

[1] https://en.wikipedia.org/wiki/Anthony_Weiner_sexting_scandal

[2] http://en.wikipedia.org/wiki/Mark_Sanford_disappearance_and_...

If you like to live under that illusion so be it...

Now that you've brought up the subject of illusions, let's discuss some of the bigger illusions we currently agree to en masse:

1) the 30+ year war on drugs, still in effect because the masses believe the illusion that being excessively tough on crime makes for a better society.

2) 12 USC being modified by the Trading With the Enemies Act of 1917 to include "United States Citizen" [1].

3) House Joint Resolution 192 of June 5th 1933 banning gold and silver as currency, ushering in a bankruptcy with the trimmings of Keynesian Economics [2].

4) "9/11 changed everything".

5) Most relevant, NSPD-51 pulling all branches of government under the Executive during Bush II [3], and none of us caring.

Every one of the above is an illusion; handwaving by bureaucrats, that were integral for bringing us to where we are today. Why do you choose to accept/live by the above illusions? because everyone else is?

(Additionally, you may be making an Appeal to Incredulity [4], if you weren't already aware.)

[1] http://www.law.cornell.edu/uscode/text/12/95a

[2] http://www.focusoncommerce.net/index_htm_files/LAW%20-%20Hou...

[3] https://www.fas.org/irp/offdocs/nspd/nspd-51.htm

[4] http://www.rationalresponders.com/logical_fallacy_lesson_11_...

I had a similar thought with Bush. While did and still do despise the man's very existence, something I cant remember now, which is really annoying, made me think that actually the US president doesn't have half the power one would think he does. I ended up thinking that a US president is really caged in. Its like the most powerful position on earth is also like a life prison sentence.

That's right, it's still Bush's fault.

We're in Obama's 2nd term, this is getting old.

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

This article doesn't make any claims about anything being Bush's fault.

As far as I can tell, this article is reporting new information about Bush's actions during his presidency. It's being reported now because this information wasn't previously available. And it's only available now because Snowden leaked it.

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..

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.

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.

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.

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.

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.

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.

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/TransparencyandOp...


If it gives Obama a scape-goat and lets him turn himself into the restorer, so be it.

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.

I don't mind if he does say he didn't know, as long as he puts it right

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.

In my opinion the political spin is the article's failure to mention Obama at all. I was attempting to draw attention to it.

There have been like 5,000 articles pointing at spying under Obama in the past week, and a remarkable lack of liberals defending him for it.

I'd suggest that you're the one bringing political spin into the equation.

I don't know what your point is. I am neither liberal or conservative, but I'd prefer to have both presidents held accountable for a program that both strongly support.

There is no reason to mention Obama because the scope of the article is an historical document that dates from the Bush Administration.

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."

hence the whistleblowers

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...

1) I'm pretty sure that never happened, it's just a hypothetical.

2) The hypothetical is needlessly dramatic. John Woo's point is that the U.S. courts cannot supervise the President's execution of a war on foreign soil, because the Constitution invests the President with sole power, as commander in chief, of how war is conducted. Crushing a child's testicles is a graphic example designed to invoke an emotional response, but it's logically indistinguishable from any other activity, no matter how minor or how egregious, if the premise is that the courts have no authority to second-guess how the President executes a war. And after all, is it really such a controversial concept? Very few people would argue that the President didn't have the authority to vaporize Hiroshima and Nagasaki with nuclear weapons, without consulting Congress and without being second-guessed by the courts. If he can do that, what's left?

1) It's a needlessly dramatic hypothetical, but it was chosen by the author of the paper not read into it (or, so far as I've found, prompted) by others.

2) There's a distinction between what the President can do when Congress and the courts have not spoken on a topic, and what the President can do when they have. Is it obvious that Congress could not, in principle, forbid the use of nuclear weapons? The government needs to be able to place checks on itself and especially on any individual within it. I would argue for similar reasons that constitutional protections continue to apply in wartime - the last clause in the Third Amendment is pretty toothless otherwise.

There is a distinction between how Congress and the courts can check the President's power domestically, and how it can do so internationally. John Woo's point is that the courts cannot tell the President how to treat foreigners on foreign soil during war time. The Constitution continues to apply in war time, of course, but the Constitution is silent on the subject of interrogation methods for foreign soldiers. Moreover, while torture may be in contravention of a treaty, it is not necessarily the case that the courts may supervise every executive or Congressional action for conformance with treaty obligations.

People like John Woo argue that the courts were not designed to be the preeminent branch. That is to say, they were not designed so they could second-guess every single action of the Congress or the Executive, even in domains like foreign policy where the Constitution conspicuously gives the President and Congress certain powers but none to the judiciary.

John Woo thinks it's legal for the President to torture children (non-Americans on non-U.S. soil mind you) not because he thinks torturing children is morally justified in some way, but because he thinks that the voting public is the body that is empowered to impose consequences for such actions, not the un-elected judiciary.

Right, and I wholeheartedly reject that notion. A person who orders the crushing of the testicles of a child - on any soil - should be facing criminal charges, and criminal charges cannot happen without the courts. If our reading of our founding documents (and interpretations since then) don't permit that, our reading needs to change or the documents do. To hold that this is the case, and not be loudly advocating for amendment, is fundamentally an attack on basic human dignity and anything resembling rights of those abroad.

On a lighter aside:

People like John Woo argue that audiences like movies with slow-motion doves flying in front of explosions. People like John Yoo are the people we were talking about.

Impeachment could be a swift and direct remedy also.

I don't know that I object to the notion that impeachment is required as well (absent it, a president could just pardon themselves anyway) but I don't think punishment should be restricted to impeachment in the face of serious abuses.

Congress can prevent the use of nuclear weapons by refusing to fund their production.

They might very well be able to prevent torture by making it a military crime. There's obviously a spectrum here, as Congress almost certainly couldn't make it a crime to take a particular village as an end run around the President's authority as Commander in Chief. This is not a logic puzzle, it's checks and balances.

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.

The main difference is that in WWII, Congress gave the president the power to go to war through a declaration of war. In the war on whatever it is that might allow the president to spy on US citizens, Congress has practically abdicated its responsibility. Presidential power has grown significantly since Bush and continues to do so throughout the Obama terms. While that certainly proves your final point is true, I wish Congress would take back some of that power and just maybe, we'd be a little more free.

Don't congress need to actually declare war before the President gets to execute war powers?

Congress hasn't declared war in ages.

The only thing the Constitution says about the subject is that "Congress shall have the power to... declare war." It doesn't give a specific format for an "official declaration of war" or anything like that. Congress hasn't declared an official war since World War II, but the actions in Iraq and Afghanistan were backed up by Congressional resolutions authorizing force against those regimes. Congress never declared war against Tripoli during the Barbary Wars (just 12 years after the signing of the Constitution) so at least historically it doesn't seem like the founding generation believed it necessary to pass some "official declaration of war" in order to signal Congress's approval for the President to execute war.

But previously, war meant some clear and present enemy like "Japan" or "Germany". Now the president has been given almost carte blanche access to fight a war on "Terror", a term so nebulous as to allow the president the right to do whatever he wants including spy on American citizens. While it's true Congress gave the president the ability to fight a War on Terror (or drugs or unicorns or whatever), it's the Congress who should be reining in that power when it gets out of hand. Instead they sit around and collect their checks.

I'm not as worried about an "official declaration of war" since the Constitution isn't clear on that need. I do wish Congress would grow a set of balls and do what's necessary to rein in presidential power regarding a ridiculous war on something we can't even see, much less defeat.

During the Iraq and Afghanistan wars, Congress authorized the use of force against the Iraqi government, and Al Qaeda and agents of Al Qaeda. I don't see how the latter is any more nebulous than Congress's authorization of force against the Barbary pirates in 1801.

I'm not talking about those wars. I'm talking about the War On Terror which was the genesis for spying on Americans. We don't have a war on Al Qaeda, we have a war on Terror. It doesn't get anymore nebulous than that. Neither Bush nor Obama would stand before the American People and say that the authorization of force in Iraq justified a sweeping surveillance program that includes American citizens. But the War on Terror enables them to do exactly that because of its murkiness. I don't blame either Bush or Obama for taking advantage of the power vacuum left by Congress in the War on Terror. I just wish Congress would take some of that power back.

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.

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.

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.

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.

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.

the case the parent refers to is Marbury V. Madison, where SCOTUS assumes the ability to interpret matters of constitutionality.

Yes, and it appears that America is in need of such a court.

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.

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.

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"

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.

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.

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