Beryllium Sphere(tm)'s Journal: High points of "How Would a Patriot Act"

A constitutional lawyer named Glenn Greenwald wrote a book which explains the legal and constitutional issues behind some Bush Administration policies.

He used to be apolitical, I mean really apolitical, to the point of not even voting. Then, over the last five years, he's been jolted into action by "theories of unlimited Presidential power which are wholly alien, and antithetical, to the core political values that have governed this country since its founding" (from the preface).

He was living and working in Manhattan on September 11 and eagerly backed the first initiatives against the terrorists. But then, "What first began to shake my faith in the administration was its conduct in the case of Jose Padilla ... The administration claimed that they could hold him indefinitely without charging him with a crime and while denying him access to counsel". He still didn't lose faith until many more abuses piled up.

HISTORY

Congress has cooperated with open requests for surveillance powers. The Combatting Terrorism Act passed without hearings or debate, allowing the FBI to tap Internet communications for 48 hours without a warrant. Congess amended the 1978 Foreign Intelligence Surveillance Act to give the executive branch more flexibility. That was part of USAPATRIOT, which many Congressmen voted for without reading it, trusting the administration to do the right thing in a national emergency. Bush said it was adequate: "This new law I sign today will allow surveillance of all communication used by terrorists". In the same month he ordered the NSA to begin violating the law by spying without even the minimal judicial oversight of the secret and pliable court that oversees FISA taps.

FISA, the 1978 act triggered by scandal after scandal, passed with Republican support including senators like Orrin Hatch. It worked throughout the Cold War, the first Gulf War, and many smaller conflicts. It has specific provisions for use in wartime which still require eventual judicial review.

THE ISSUE ABOUT WIRETAPPING

So why break the law? Greenwald points to the answer: "The only difference between obeying and violating FISA is that compliance with the law ensures that a court is aware of who is being eavesdropped on and how the eavesdropping is being conducted". In a March 2006 reply to Congressional questions the administration admitted that their purpose was to change who made the decisions about probable cause and to eliminate "layers" of review. Certainly the judges weren't getting in the way of normal or even questional eavesdropping: court intern Jonathan Turley said "I was shocked ... I was convinced that the judge would have signed anything that we put in front of him".

IS IT ABOUT MAKING US SAFER?

Yaser Esam Hamdi was a US citizen when he was thrown into solitary confinement for two years without being told what he was accused of. It could have been for life, given the likely duration of the "war on terror". The Supreme Court eventually gave the administration a put-up-or-shut-up order, with even Scalia chiming in with "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite detention at the will of the Executive". So what was done with this man who was allegedly too dangerous to be allowed to see a lawyer? He was released without charge and sent to Saudi Arabia.

Torture isn't making us safer either. Former CIA officer Bob Baer told reporters it's "bad interrogation, I mean you can get anyone to confess to anything if the torture's bad enough". Torture is where the "evidence" against Jose Padilla came from.

PRESIDENTIAL AUTHORITY

Is the President above the law? His legal adviser John Yoo says so. He told New Yorker report Jane Mayer that Congress "can't prevent the President from ordering torture".

The legal theorists who are defining what a Commander in Chief can do have set forth theories that recognize no limits at all. That's correct, unlimited power. That even includes using awesome war powers against US citizens on US soil.

IS THIS A LIBERAL THING?

It was Reagan's deputy Attorney General, Bruce Fein, who wrote for the Washington Times (December 28 2005) "Congress should insist the President cease the spying unless or until a proper statute is enacted or face impeachment".

Republicans on the Senate Intelligence Committee wanted to hold an investigation until pressured into changing their votes.

Republican James Sensenbrenner said "I think that ... is stonewalling".

BUT AREN'T WE IN DANGER NOW? ISN'T THIS PRE-9/11 THINKING?

We were in danger in 1789 when the mightiest nation on earth was our enemy. The Founders still put together a constitution in which the President doesn't get to interpret, or worse yet violate, the law.

Imprisoning people without charge, counsel, or opportunity to defend themselves is pre-Magna Carta thinking.

Greenwald puts into perspective the fear that the administration promotes by saying "one can protect against the threat of terrorism with courage, calm, and resolve".