Is Spying on Terrorists a Crime?

I saw Professor Johnathan Turley from my alma mater, GW Law School, on TV last night talking about the NSA spying program. He stated his view that the program was a federal crime and was much more serious than a technicality such as neglecting to give Miranda warnings. Indeed, the FISA act does provide for criminal penalities when an American is put under surveillance without authorization. I hadn't know this before reading about the FISA act on the web recently. There does seem to be a case that Bush committed a serious crime. Some scholars accept the idea that the authorization of the use of force gave Bush the power to authorize the surveillance since keeping an eye on your enemies is traditionally part of military operations. Others reject this notion as too much of a stretch. Charles Krauthammer in his column describes the program as a political mistake, not an impeachable crime and says, "This tug of war is a bipartisan and constant feature of the American system of separation of powers." Other presidents ignored congressional mandates such as Reagan giving support to the Contras despite the Boland Amendment. I have to say that if you accept the notion we are at war it's a little hard to take the impeachment talk seriously. Would anyone have balked at FDR authorizing surveillance of conversations between Americans and known Nazi agents during World War II. Despite the lack of an official declaration, can anyone doubt we are at war with Al Quaida?

12 Years too Late

Vox Day responds to the idea we should have attacked Germany preemptively in the late 1930's. It seems to me that this analogy is the wrong one to make with regard to Iraq. What we did in Iraq was wait 12 years after the appropriate time to take out Saddam Hussein thereby causing ourselves a lot trouble. It's almost as if the Allies in 1945 had stopped at the borders of Germany and signed a cease fire with Hitler. Then 12 years later in 1957, the American president decides that he's had enough of Hitler even though he's been contained for twelves years and then invades Germany and deposes of him. This obviously would have been ridiculous, but that's what we did with Iraq. In 1991, we had a far larger armer then in 2002. We had the authority of the UN and the support of the world. Although some members of the coalition would have dropped out when we went beyond the mandate of liberating Kuwait, we could have done it so swiftly that it would have been a fait accompli. Sure, we would have some of the same problems we are facing now but we would have been in better shape to deal with them. Many in Iraq would have supported us because they hated Saddam. A large number of those people aren't there now because we let Saddam massacre them in 1991. Furthermore the timing would have been right. Timing is critical in military strategy. In 1991 Saddam was clearly the aggressor who started the war by invading Kuwait. In addition, Saddam was not prepared in 1991. Because his army was no match for the US military, his army was quickly routed. In 2002, he knew he couldn't beat the Americans in a head-on conflict so he made plans for his forces to disappear into the countryside and launch a guerrilla war. In 2002 we made ourselves look like the aggressor and had to come up with a lot of unconvincing justifications. I still think getting rid of Saddam was a good thing but it would have been a lot better if we had done this when the time was right.

Bush's Leadership

Although I don't think much of Pat Buchanan's isolationism, he has been the most intelligent critic of the war in Iraq. His column today shows he still has good sense and is a patriot. Unlike other pundits who twist Bush's words to undermine him and who don't recognize Bush's efforts to defend the nation, Buchanan recognizes that Bush is showing strong leadership and is sincere in his belief that he is doing the right thing. He may make mistakes but he is not acting out of any corrupt or evil motive. He is not trying to undermine the constitution or establish a fascist dictatorship. Despite the hysterical shrieks of "Impeachment!", there is a good case to be made that the President does have authority to authorize the type of eavesdropping. Even if it is illegal, it hardly constitutes an impeachable offense. When a law officer violates someone's fourth amendment rights, it may make the evidence he collects inadmissible and he may be liable in a civil Bivens actions but it's not a criminal offense. So, it's ridiculous to assert that the eavesdropping program is a "high crime or misdemeanor." Mark Levin makes some good arguments in favor of the President in the corner. Legal analysis of the program is here.
When the Democrats talk about impeachment, I think "Bring it on!" The Dems would be playing the role of a defense attorney trying to get a killer off the hook by some technicality. Does the public want Bush or some ACLU lawyer defending the country?

A forked and evasive Blog

Vox Day accuses the president of speaking with a forked and evasive tongue, but I think Vox is the one being disingenuous. First he says "The war is undeclared - unlike most other wars in our history - but whatever", giving the impression that Bush is starting a new tradition of fighting undeclared wars. In fact, most military actions in U.S. history have been in undeclared wars. The first Gulf War, the Vietnam War, the Korean War and the Civil War were all undeclared. We invaded Panama, Grenada, Haiti, and the Dominican Republic without declarations of war. We fought France in the 1790s and the Barbary Pirates without declaring war. So, President Bush is well within the traditions of American history by fighting an undeclared war. Furthermore, the power of declaring war is given to Congress which has not chosen to exercise that power. By passing resolutions giving the president authority to use military force in Iraq as it had in Afghanistan and in the first gulf war, Congress is in effect waiving its authority and delegating it to the executive branch. This may be unseemly but the fault should properly lie with the legislature, not the executive.

In answer to Bush's refusal to "retreat", Vox asks rhetorically "retreat from what? Having our troops stationed in every corner of the globe in a misguided, quasi-imperial Pax Americana? " It's obvious that Bush doesn't want to keep our army tied down in Iraq. What he's trying to accomplish is the creation of a stable and democratic Iraqi government that can defend itself and maintain internal order. When Vox says that "the Islamic empire has stretched across the Middle East since the 700s", he gives the impression of a monolithic Islamic empire that has been in existence for some 1300 years. Of course, nothing could be futher than the truth. The Islamic Empire that conquered much of the Middle East and Northern Africa from the Byzantines and the Persians quickly fell apart. Since then the region has seen invasions from the Crusaders, the Mongrels and the Ottomans, among others. After several centuries of Ottoman domination, European powers moved in. Bin Laden wants to revive the Caliphate and make the Arab world even more backward than it already is. What Bush is trying to do is to bring the region into the modern age. It may be a futile, Wilsonian pipe dream but considering our dependence on oil and the inevitability of the spread of nuclear weapons in the region, it is definitely worth a shot. But anyway, that's the debate - whether we can successfully export something resembling a democratic, modern government to the region. Based on the election last week, I'm starting to get optimistic.

In response to the President repeating his often made argument that it's better to fight them in Iraq than America, Vox says "This is a weird argument which assumes that because America is attacking Iraqis, non-Iraqis can't attack America. It makes no sense." Nobody said that the terrorists can't attack America because we are in Iraq. The point is that the main front of the war is in Iraq because we went there. Al Quaida is convinced that if we succeed in establishing a decent democratic government in Iraq, we will have dealt them a critical blow from which they won't recover. We know this from intercepted letters. Thus, they are choosing to fight us in Iraq, which is the battleground of our choice. It is perfectly legitimate for Bush to say that our offensive strategy is probably deterring attacks on our home soil. The terrorists have attacked outside of Iraq in places such as Spain, the UK, and Indonesia. There hasn't been a major attack in the US most likely because they know we will hit back.

Vox's then accuses Bush of being "wildly dishonest" and issuing "spin worthy of Clinton" for making the obvious point that we should fight back against the terrorists. Not responding to vicious, murderous attacks does invite further attacks. That's what happened under Clinton when we didn't have a credible response to the first World Trade Center attack, the Khobar Tower attacks, the attacks on our embassies in Africa or the bombing of the USS Cole. Whether or not the terrorists liked us being in Saudi Arabia is irrelevant. Are we supposed to refrain from stationing troops in an allied nation out of fear of what some nutcase terrorist thinks? Is the strongest country in the world supposed to cower in fear of these lunatics and not be engaged in the rest of the world? When we were a lot smaller and weaker, President Jefferson refused to give into fear and pay tribute to the Barbary Pirates. Instead we fought back and defeated them. That's the tradition that President Bush is upholding, not the isolationist tradition that Vox seems to support.

It's true that Bush's reasons for going to Iraq seemed confused and have been weakened by the failure to find weapons of mass destruction. Our legal justification for invading Iraq is that the Hussein government failed to abide by the cease fire agreement of 1991. The real reason is that we needed to assert ourselves after the 9/11 attacks. There hasn't been a new attack on American soil and we have been making progressing in establish democracy in the region. I think that's pretty good progress.

Tookie Williams

Reading the arguments in favor and <a against clemency for convicted murderer and gang leader Tookie Williams, I am not persuaded that his life should be spared. He brutally murdered four unarmed, helpless people and showed no conscience or remorse for it. Then, he planned an escape from prison which involved killing guards and murdering his own accomplice. He founded the crips, one of the most deadly and notorious gangs in the world, in 1971. While in prison, he was involved in a number of fights and attacks on guards. Although in the last decade or so his behavior has improved and he has written books to encourage kids to stay away from the gang lifestyle, the key fact is that he has refused to cooperate with law enforcement and have a debriefing with the police on gang activity. He says that to do so would make him a snitch, which is the lowest form of life among gang members. The fact that he still has this belief shows that he has not in fact abandoned the gang mentality. His refusal to cooperate should be the determining factor in denying his appeal for clemency. I would even offer him the opportunity for clemency in exchange for a debriefing. To do so would force him to become a snitch in exchange for his life. It would deglamorize him among any gang member wanna-bes and would show that criminals who agree to help the police can save their lives.