While the Far Right’s rhetoric on FISA and spying is highly misleading and extremely inflammatory, and the Democrats’ capitulations in order to appear strong, are in fact weak, the real culprit may also be the media. In a democracy, all policy -- or its acceptance or lack thereof, ultimately flows from information and discussion. And the information on this issue, as on most of late, has been extremely poor.
Noted constitutional analyst Glenn Greenwald, for example, suggests that nationally leading "liberal" media figure Joe Klein’s, "support for a new law that he does not understand ... is instructive as to why the bill passed in August, and why there is such a danger now that it will be made permanent."
As Greenwald points out, "In two short paragraphs, Klein manages to say: "I am absolutely opposed to [eavesdropping without a FISA court ruling], and I vigorously support this bill which grants [eavesdropping without a FISA court ruling]." That is, Klein vigorously opposes almost the entire purpose of the bill that Klein vigorously purports to support.
But rather than an anamoly, some form or another of Klein’s approach has become more the norm.
No less an important "Democrat/Liberal" than David Ignatius, who served as editor of the world renowned International Herald Tribune, and who serves as an associate editor and editorial writer at the Washington Post, as another critical media example, recently wrote:
After the revelation that the Bush administration had been conducting warrantless wiretaps, there was a broad consensus that the NSA's surveillance efforts should be brought within the legal framework of the 1978 Foreign Intelligence Surveillance Act (FISA).
This statement has two potential meanings. Neither are forthright.
The first is the sugar coated suggestion that what was previously illegal behavior, not only ought to be legalized, but that there is a broad consensus that this needs to be done. Yet this is far from the truth, to state it mildly. And it does not even begin to address the ramifications of what it means.
The other meaning is an even more obsequious, and deceitfully sly way of implying that this is a country of laws: And that the illegal activity conducted in violation of both national law, and of the separation of powers clauses of the Constitution, needs to be conducted in accordance with the minimal oversight protections put into place under FISA -- as amended to keep abreast of current technological changes and heightened counterintelligence needs.
Given that in 2006, Ignatius labeled such a view an implicitly obstructionist "absolutist agenda," "rather than seeking a compromise that would anchor the program in law," this latter meaning seems unlikely. In other words, instead of abiding by the law, or amending the law to take into account that some foreign to foreign communications (which do not fall under FISA) can now be routed through the U.S; "absolutist" position that requiring some minimal degree of meaningful oversight on actual U.S. communications that it is, this view seeks to "hold up" a meaningful counterintelligence program designed to give us the intelligence we need. As if the idea of a means for legitimate oversight as to whether the program is actually being used in the manner intended, and valid counterintelligence, are now, for the first time in our history, mutually exclusive.
It seems far more likely that Ignatius means a compromise of the two, which is equally egregious, if not worse, in its deception. Here is what he also more recently writes:
Crafting a solid compromise that has long-term bipartisan support has so far proved impossible.
In other words, the idea of rectifying Article 1 and Article II, and potential 1st, 4th, and 5th Amendment lawbreaking, is not to cease the lawbreaking -- that is, not cease the necessary activity of counterintelligence, but bring it under some sort of meaningful system of independent oversight, as both the law and Constitution requires. But, instead, to "compromise" on it.
He also casually notes:
The White House -- wanted more concessions. The deal collapsed, and the White House, sensing it had the upper hand, pushed through a more accommodating Senate bill that would have to be renewed in six months.
That is, an eerily Orwellian bill (right down to its "Protect America Act" name), that gutted FISA and the oversight protection that FISA specifically mandated -- lest the "foreign aspect" of what were similarly, U.S. communications be used to circumvent the straightforward liberties and protections under the Bill of Rights -- by proclaiming that FISA "still applies" but "doesn’t apply to foreign communications as defined by FISA" (which is all FISA ever applied to in the first place), is now, in the doublespeak of the media, simply "more acommodating."
In the last paragraph of his piece, Ignatius wrote:
A healthy political system would reach a compromise to allow aggressive surveillance of our adversaries.
Thus, Ignatius strongly suggests, the idea that a system of oversight, so that there is some sort of record so that there is not an unchecked ability to spy on whomever, and whenever, the Executive Branch wants, based solely upon its constitutionally and legally meaningless assurances that it "believed" it was relevant, somehow prohibits aggressive surveillance of our adversaries; THE SAME FALISTY THAT THE FAR RIGHT HAS BEEN MISLEADING AMERICA ON NOW FOR SEVERAL YEARS, AND WHICH LEADING, SO CALLED "MODERATE" BELTWAY VOICES OF MEDIA PUNDITRY HAVE NOW APPARENTLY BECOME NATIONAL CHEERLEADERS ON.
Ignatius concludes with this astounding line:
The challenge is to put this necessary surveillance under solid legal rules. If the two sides can't get together on this one, the public should howl bloody murder.
The public should not howl bloody murder because the administration, with essentially no meaningful oversight and in violation of the most basic principle that our nation was founded upon, first took it upon itself in violation of the law, and now wants the recognized ability to spy on Americans with essentially no meaningful oversight. But rather should because there are instead, "two partisan sides" that in his words elsewhere in the piece, "won’t compromise." And Ignatius’ compromise? Not give the administration the authority to engage in all the surveillance of potential terrorist leads that it could ever want, but agree to grant that authority with, again, largely meaningless oversight of exactly who is being spied upon, and for what purposes, and make it legal. That is Ignatius’ "compromise."
And how does he justify this type of Orwellian Logic? "We face an adversary that would kill hundreds of thousands of Americans if it could." And according to this logic, or at least the logic that is being obsequiously presented to the public -- the only way to do this is to grant the Executive exactly what our Constitution was set up in the first place to prevent, and that is what in practical terms amounts to unchecked power.
The sad thing is that statements like that, to a seemingly half asleep mainstream media overly influenced by screams of "liberal" and (other things) which the far right for years has shrilly attached upon anything that does not accord with its own often autocratic views (including the media itself when it simply reports the simple facts), are now considered staunchly to the Left; and the rather extreme, if not radical views, that such beltway pundits are seemingly cheerleading for, as "reasonable" and "centrist."
Thus the approach of the radical right has worked. If they simply shift sharply to the right, they have moved the "center," and the media, like sheep, will follow along (even such leading noted laureates of Democratic punditry have inanely played right into this far right Republican framing, without even realizing they are doing it.) If through such ignorance as this propounded by the media, it is now the perceptual center, then in the last seven years our country has become something very different than it was founded upon. While some people like to overly zealously argue that 9/11 changed everything, it did not change who we are, and what we are, as a nation.
To the extent it did -- or the extent that this is what, apparently, a large bulk of Congress and the mainstream media cheerleaders is either arguing for, or is too scared to stand up against -- the terrorists have already "won:" and in fact have begun to destroy the principles that they supposedly hate so much. Principles which our President, ironically, back on September 20, 2001, stated our first responsibility was to live by. Apparently, living by those principles, even, in the words of staunch conservative Bruce Fein, the "most conservative principle of the Founding Fathers, distrust of unchecked power," has now in the new Orwellian world of Bush and Beltway media punditry double speak, become an obstructionist, partisan, "Lefty," act: designed, it is often outrageously asserted by the far right, to "protect terrorists -- thus constitutional liberties for All Americans are now synomymous with "terrorists," since that is actually what adherence to such basic American principles is designed to protect.
Perhaps there is a nicer, more courteous way to frame it. But the reality is that Ignatius’ framing and representations on this issue, as is much of the media coverage of it, is irresponsible. This increasing media mediocrity and accommodation of the right no matter what the facts, needs to be addressed. Yet it is not being effectively done. And it is perhaps making it both easier for the media to continue to mischaracterize these issues, as well as more difficult for the media to engage in the type of seemingly hard hitting journalism that the facts require, if enough Democratic and other leaders themselves are not publicly making the case.
But potential issues of poor Democratic focus and irresponsible media coverage symbiosis aside, where do such views as these arise? What is the "excuse," the "catch" -- outside of a healthy fear of terrorism and this decidedly cowardly, anti American notion that in order to effectively combat it, we need to grant our Government what were heretofore considered to be extremist grants of unchecked power over its citizenry, from whence this comes?
Perhaps a clue can be found here: In the earlier piece linked to above, Ignatius also wrote:
It pits the president's power as commander in chief under Article II of the Constitution against specific legislative rules mandated by Congress in the 1978 Foreign Intelligence Surveillance Act.
That Ignatius has (or is willing to admit) very little understanding of legal principles, or of the Constitution, is evidenced by his statement in the very same piece:
A stable, legal foundation for the NSA program can come by placing it under FISA jurisdiction, or by amending FISA, or perhaps by a judicial review that might support the administration's argument that Article II trumps FISA.
Or perhaps by a judicial review that might support the administration's argument that Article II trumps FISA. Or perhaps by little Angel fairies that will come down in the middle of the night and protect us all. Or perhaps by Santa Claus, who for Christmas will wipe out all ill will on earth. Or perhaps by a judicial review that declares that the administration’s other main argument, that the general AUMF of September 14, 2001 somehow trumped the expressly specific U.S.A. Patriot Act that came a month after, and Amended the very same FISA which preceded the AUMF. (Then again, if more radically right judges continue to get appointed, anything is theoretically possible, which once again begs the larger question. But here is how such leading Democratic pundits as Dionne, referenced above, managed to contribute on that issue.)
Let’s take a quick look at the second argument, before considering the first which Ignatius postulates as "reasonable," in order to falsely make his own arguments come off as reasonable to a typical newspaper readership; a readership which would otherwise really have no way of knowing what the real issues involved here are, unless so informed by this same media.
Staunch conservative and Federalist Society member, lifelong Republican and Constitutional Fellow Robert Levy, in the August setting of testifying before the Senate Judiciary Committee, somewhat nicely called this very same argument "bizarre." Long time leading conservative commentator George Will mocked it. The New Republic labeled it "absurd."
I summarized it this way, as someone caught and put into a comment on here, a while back:
Never in our history (and rarely has such a preposterous argument ever even seriously been put forth) has a statute that says "use all necessary means," meant "including by those methods which are expressly illegal" without otherwise so saying and specifically changing the law rendering the action illegal.
And that does not even take into account that the USA Patriot Act -- a month after this same Authorization to Use Military Force which allegedly "wiped out" FISA was passed -- amended and updated FISA.
Now let's examine the argument that Ignatius postulates as reasonable, which unfortunately, can not be neatly summarized in a one sentence sound bite, as easily as the first. (And which, as critical as this issue is to our Nation’s future direction, is probably part of the reason why it, lazily, has not been done). That is, the idea that a judicial review might support the idea that the "Article II" trumps FISA.
Let’s take a look at that argument.
The Constitution, under the same Article II that Ignatius cites as possible authority for the idea that FISA can somehow be "trumped" at the Executive’s unilateral discretion, anoints our Executive as commander in chief of the armed forces, "when called into the actual Service of the United States." Nothing more. Article II, Section 2.
The idea that the Executive, whose powers are expressly limited by the Constitution, can nevertheless do whatever it deems appropriate in the name of national security, other provisions of the Constitution or legislation notwithstanding, and propounded by such right wing radicals as John Yoo of Berkeley, and Christopher Yoo (no relation) of UPenn, and adhered to by an extremely small group of far right zealots yet adopted by the current administration, has nevertheless been promulgated by much of the rest of the media as if simply "one of two equal sides" of some seemingly reasonable debate.
But the idea is tautological, and is one that, in essence, simply does not support our Constitution’s most basic premise, but is too twisted to simply acknowledge this outright. There is no cohesive and logical rationale as to how this theory can apply to "some" types of Executive behavior or decision making, and not to others. It depends upon the assumption that the Executive‘s discretion is absolute -- since it is the Executive which under this theory has the sole authority to make that decision as to what is appropriate in the name of "national security." If it is not absolute (i.e, "well, the President ‘only‘ has this power when something ‘clearly’ relates to National Security, and is ‘clearly‘ reasonable), there is no way to fashion a "check" upon it, other than the check that, lo and behold, already, and specifically, exists in the Constitution itself, under Article I, Section 1; which is, namely, that "All legislative Powers herein granted shall be vested in a Congress of the United States." Article I, Section I. That is, if the Executive decides what is national security related, and can unilaterally circumvent the will of Congress, then Article I and Article II’s separation of powers -- the main reason for the Constitution’s creation in the first place -- is essentially rendered meaningless at the Executive’s discretion.
In fact, the President’s express duties, are laid out in that very same Article II, Section II, and include, far from breaking them, the "duty to see that the laws be faithfully executed."
[This might also be a good time to re-consider the very first of Article II’s four Sections. "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." How does an Executive branch defend the Constitution when it is under attack by that very same Executive branch?]
Similarly, the argument that this "legislative powers issue" does not apply because the President has "determined" that he is taking action as commander in chief of our armed forces, yields the same result. And the idea that this applies in war time is similarly flawed. As Republican Rep. Heather Wilson, in a press release, put it, "Our Constitution with divided powers operates in war and in peace." There is nothing in the Constitution to suggest that its most basic purpose is suspended in war time, let alone a "war time" -- unless one is taking a page right out of Orwell’s "1984" -- that, similar to the so called "war on terror," is likely to exist in perpetuity. The commander of our navy listens to his commander: who tells him when the battle is over, when the battle begins, and what the rules are. The commander in chief’s commander, are the people of the United States. They are actually the decider, in a democracy. As Rep. Wilson put it "When the Congress authorizes the President to used force against an enemy, we are not relinquishing our powers under the Constitution, we are exercising them."
(Yet not so ironically, this is the President who apparently only half jokingly stated, just before taking office, "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator.")
The current Executive’s radical argument, and trumpeted as "reasonable" by ignorant or head in the sand, media figures, turns this upside down on its head, even with respect to ideas that don’t even directly relate to specifically commandeering our actual armed forces when called into service. That there are a few radical right wing scholars who nevertheless make this argument, and who clearly do not have the same view of our Constitution as our founding fathers did, or even of the idea of a limited government of checks and balances upon which our system of democracy relies, does not change the logic.
This point is being missed because it seems obvious that counterintelligence is related to national security. But there is no reason for the President, rather than the people of the United States, to be making that determination as to what powers are ascribable to government in the name of national security thereof. Moreover, if the President decided that all citizens of Arabic origins were a threat, and put them all in jail, or even if all people who were born on Tuesdays and Thursdays were a threat, and put them in jail, this cockamamie theory being propounded as legitimate, put into practice by our current far right wing government, and danced around by a compliant and half asleep national media, would apply just as equally as it does to the seemingly more reasonable idea that "spying" is a legitimate intelligence pursuit and that it is the Executive, rather than the people‘s prerogative of what actions, and how to take them, be put into place; preexisting law, Congressional mandate, or the Bill of Rights be damned.
In keeping with the same theme expressed by Ignatius, that everything has to be "partisan," "obstructionist," "absolutist," and that the correct answer always lies in the "center" regardless of the competing positions actually involved, or the extremeness of one or the other, here was the first sentence of a Washington Post article on Yoo: "John Yoo knows the epithets of the libertarians, the liberals and the lefties."
Suddenly, according to the Post, believing in the separation of powers clauses of the Constitution, makes one a "libertarian," a "liberal" or a Lefty. It seems somewhat snide to say, but who would have thought that our Founder Fathers were such a group of "Lefties." In the new doublespeak of the radical right, or, increasingly, of a compliant media, I suppose, anybody who simply finds it convenient to do so.
My statement above is not partisan. It is not "Democratic." It is not "Republican." It is not "Left." It is not "Right." It is Constitutional. A view to the contrary, no matter how aggressively asserted by a small overly influential cabal of far right wing thinkers, and no matter how irresponsibly parroted by the media as one of two seemingly equally "reasonable" interpretations, alters the entire basic meaning of that document. Not an expansion of interpretation, as the Constitution is a living, breathing document to which our highest Courts have had to give meaning as our society has progressed and advanced, but as to its most basic, fundamental, underlying purpose. The reason for its creation, namely, to create a system of checks and balances and to ensure that there did not, and that there could not, exist unchecked powers. The same types of unchecked powers which figures like Ignatius, are now essence, calling obstructionist -- as we hear the cries that almost all weakening societies have heard throughout history, and whenever heeded, only to ultimately discover to their own detriment -- that we or they, need more power to protect you.
It goes against our Founding Father's vision. It goes against our Constitution. It goes against the Bill of Rights. Until gutted, the most visible enactment (but far from the only one) of this unconstitutional power grab, warrantless eavesdropping, also went squarely against FISA. It, frankly, is not American.
The next time a member of Congress is accused by a far right wing radical of not wanting to catch terrorists by sole virtue of standing up for the basic principles that this nation was founded upon, he should walk over and ........[edited] well, make quite an issue of it. A public issue. Many Indepedents and some Republicans will even publicly rally around the fact, if for once, the Democratic party gets someone's back and explains their side, instead of playing, once again, to the rhetoric of the far right. Either way, the mischaracterization simply has to stop; for in not addressing it - openly, honestly, and with vigor, in a way that communicates with the American people -- debate is being stifled. And Democrats are contributing to this as much as anybody else.