Clear And Present Danger

by digby

The president.... Clear And Present Danger

by digby


The president says he is operating within the law because his appointed lawyers have interpreted the law to say that he has. He says that the US does not torture and he believes it. He believes it because his lawyers have told him that torture is defined as pain equal to that experienced by organ failure or death. Therefore, waterboarding, which only replicates the experience of drowning is not torture. Being shackled in unusual positions for long periods of time subject to extreme heat and cold likewise is not torture. One could argue that pulling someone's fingernails out as is shown in the film "Syriana" is not torture.

Spying on Americans is likewise legal because the president's lawyers have said that he has the authority under the constitution to spy on Americans during wartime. In fact, they have said the executive has the authority to do anything he feels is necessary during wartime, a war which he has sole authority to wage, a war which he alone defines and which has no set definition of victory.

You might think that this redefinition of what constitutes war applies only to the GWOT. But redefining war and victory also applies to the more conventional invasion and occupation of Iraq as well, which Bush also defines as a "different kind of war."

Here's how he put it in his interview with Jim Lehrer:

PRESIDENT BUSH: Well, I think that this is a different kind of a war. I mean, in World War II we think of the USS Missouri and Japan-- We surrender. However, if you think about World War II, there was still a mission to be accomplished, that Harry Truman saw through, which is to help an enemy become a democracy. We achieved a, by kicking Saddam Hussein out, you know, a milestone. But there's still work to help this country develop its own democracy and there's no question there's difficulties because of the past history and the fact that he starved an infrastructure and the reconstruction efforts have been uneven.

But victory is, against a guy like Zarqawi, is bringing him to justice. Victory is denying safe haven to al-Qaida, and victory is marginalizing those who would destroy democracy.

He compares Iraq to WWII and even discusses the surrender on the USS Missouri, which everyone in the world accepted as the end of the war. When Harry Truman went on to "accomplish the rest of the mission," he didn't do it under the auspices of the country still being at war because it wasn't. Bush has always liked this analogy, however, going back to his famous strut on another aircraft carrier when he declared "Mission Accomplished." Unfortunately, his advisors forgot to tell him that in Germany there was no insurgency, although for months Condi and Rummy were spreading lies about the Werewolf "dead-enders" in Germany, so maybe that's what they were telling him too.

In any case, the ridiculous WWII analogy should have been put on the shelf a long time ago. Yet Bush evidently continues to believes that he is saving the world from the existential threat of the Axis powers. And in his usual incoherent fashion, while seeing himself as Harry Truman he also says that "victory" in this war, which is a "different kinda war," will be won when we bring a guy like Zarqawi to justice. Or deny a safe haven to al-Qaeda. Or "marginalize those who would destroy democracy." Victory may even depend upon how the Iraqi people 'feel." In other words, we will have achieved victory when he says we have achieved victory.

Keep in mind that we are not talking about the Big Boogeyman, terrorism, here. We are talking about Iraq, a country in the middle east that we invaded and are occupying. We could just as easily be the Romans or the Turks or the British. There's nothing "different" about it. But even in Iraq we don't know what constitutes victory or defeat. Therefore, we could, theoretically, always be at war.

This is the most troubling aspect of the Yoo Doctrine. It is offensive enough that he contends that the president has completely unfettered powers during wartime. But the fact that he also believes that the president can "make war" at his discretion, define war in any way he chooses, consider "victory" to be any one or all of a thousand of unknown conditions that we may or may not be able to discern, is the truly unique factor here. And the fact that the administration is applying this vague definition of war and victory even to a conventional war like Iraq is very dangerous. It gives imperial powers forever to any president who simply says we are "at war."

It's probably important to draw some distinctions here between a legal theorist like John Yoo and Ted "Arkansas Project" Olsen, both of whom have promulgated this theory of unfettered executive power for years. In Yoo's case I have no reason to believe that this is a purely political view; he is certainly a Republican, but his belief is philosophical and academic. I would be surprised if he would come out against these powers in the hands of a Democrat. (I could be wrong.) Ted Olsen, on the other hand, is nothing more than a cheap GOP operative who will change his tune on a dime when the presidency changes parties.

Events of the last couple of days show that for most of the Republican party this is purely a political game that they will support as long as the president is a Republican. (See: Kosovo) Judging from John McCain's dodging of the question this morning, I assume that if he or any other Republican president will continue with this doctrine. He may not like torture, but he didn't seem too troubled by spying on Americans --- or the idea that the president has unfettered powers during wartime. (If anything, he looked a little bit excited by the prospect.)

There can be no doubt about where this is going. This administration has asserted a doctrine of unfettered executive power in "wartime" that will not confine itself to "suspected terrorists" as we understand them. Everything we know about human nature --- and particularly about the nature of this modern Republican party --- says that these powers will be used for domestic political purposes. That they felt they had to do this (even though they can monitor anyone they choose immediately as long as they make an application for a FISA review within 72 hours) can only raise suspicions that this is what they were doing. Coming on the heels of the pentagon spying story, you have to have overdosed on kool-aid not to wonder why they refuse to show the secret FISA court who they are monitoring. (Somebody needs to shake loose that list of NSA intercepts of American citizens John Bolton requested.)

The architect of the modern Republican Political Infrastructure, Justice Lewis Powell, said in an earlier case:

National security cases ... often reflect a convergence of First and Fourth Amendment values not present in cases of 'ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. 'Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. History abundantly documents the tendency of Governmentâo[per thou]however benevolent and benign its motivesâo[per thou]to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on § 2511(3):

"'As I read itâo[per thou]and this is my fearâo[per thou]we are saying that the President, on his motion, could declareâo[per thou]name your favorite poisonâo[per thou]draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."

Don't kid yourselves. The administration may even be fooling itself that it needs all this "wartime" power to "protect America." But the real purpose of a government spying on its own citizens is only really about one thing --- political power. If there's anything we know about the modern Republican party it's that everything that can be done to feed the machine will be done. They are the very definition of why the founders created this ridiculously byzantine system of checks and balances --- to keep people like Ted Olsen and Karl Rove from turning this country into the tyranny like the one from which we had just freed ourselves.



Has Christopher "I heart Orwell" Hitchens weighed in on this yet? I'll be anxious to hear him try to defend this new front in the fight against Oceania.



. By noemail@noemail.org (digby). [Hullabaloo]

A nice discussion of why the illegal activities of this Administration and many Republicans is so dangerous. Power begets power. These guys will do anything to gain and maintain power. They are human. Our country's Founders realized this very specific human frailty and tried to design a government that worked against this. The current Republicans are working against this, amassing dangerously high levels of political power and simply ignoring the aspects of democracy they do not like. I really hope that the American people wake up soon to these dangers. Otherwise, the America I have always loved will only be a fake, hollow shell around the corruption of power seen in today's politcal leaders.  11:55:06 PM    

Bushâo[dot accent]s Primetime Speech: The Big Unanswered Question.

Bush has repeatedly claimed that [base ']Äúas Iraqis stand up, we will stand down.[base ']Äù Tonight he said:

At this time last year, there were only a handful of Iraqi army and police battalions ready for combat. Now, there are more than 125 Iraqi combat battalions fighting the enemy [base ']Ķ more than 50 are taking the lead [base ']Ķ and we have transferred more than a dozen military bases to Iraqi control.

If that’s true, why are there still 153,000 American troops in Iraq, as many as there have ever been? Why can[base ']Äôt 125 battalions replace a single American soldier?

[Think Progress]

An interesting question. Just how many Iraqis are in those 125 battalions? If this Administration had any credibility, I might believe this. But the number of Iraqi battalions has changed up and down so much this last year that I can not simply believe the word of this President. Show me some facts. In November there was only 1 battalion capable of independent action and a dozen that could operate with US instruction. So, what do the other 110 or so actually do? In April, 2004, an Iraqi battalion refused to attack Fallujah.Are today's any better? What is the evidence?  11:46:10 PM    

[link]

HISTORY, for those who think it started in 2001.

[Instapundit.com]

Bullshit. There is a difference between gathering digital information broadcast via satellite and the Internet, and tapping the phones of specific individuals. I feel that Echelon is wrong but there was oversight and it is similar to listening for gossip in a crowded room. And besides, saying Clinton did it does not make it right. And, truthfully, this Administration has screwed up EVERYTHING it has done, so why should we assume this is any different? The Soviet Constitution stated that a person's home was inviolate and warrants were required. We know what happened here when the law is degraded like this. You know that it will not be terrorists that are targeted. They are too hard to find (Since they are criminals they take precautions.) The ones that will be targeted are the easy ones, innocent Americans who have a difference of opinion with the Administration. There are lots of those. And, of course, in this country, if you are arrested, you must be guilty of something, right? I bet that is the feeling of at least 40% of the people here. Bush is slowly degrading the law of the land, removing the powers of the Executive from the oversight of Congress. They have already abducted an innocent German citizen, tortured him and then, realizing their mistake, releasing him. How much further degradation of the law needs to occur before they realize that simply making him disappear would have been a better solution? Not too much further, I believe. We have criminals running our government.  9:19:53 PM