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December 10, 2006

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golddog

It is sad that in this day and age we need to still be reminded of the need for an open society that fosters deliberation.

Frederick Hamilton

Professors Stone and Marshall,

What office are you two running for? If your concern were secrecy and openess in government you compromised your concerns by the epithets and vitriol thrown the Bush administrations way, "incompetent decisionmaking",
"deliberately masked its motives, its policies, and its failures from We the People."

So you two would like to know what the NSA is up to? Possibly the moves being made by the CIA?

It appears to me that with the Dems in power in the Senate and House and with their oversight powers you and I will undoubtedly learn more regarding Bush decision making.

I suspect Clinton's decision making was more to your liking as your post would intimate, but as we learned over the past few days, President Clinton was listening in on Princess Diana. But then as a Dem he wouldn't do such a thing would he?

No, as for me I want the NSA and CIA right up the derrier of every Muslim Jihadist in the world.

I guess also with time we'll see if Judge Taylor's decision will hold regarding NSA and war time spying on the jihadists and the enemy.

What about the financial data mining? Was that legal? Oh and parenthetically, to satisfy Eras, are the wars in Afghanistan and Iraq legal? Does the President have legal war powers?

Your political post is hyperbole against Bush, et al. Let's see if the Dems can make hay over it. They have the power now.

Somehow I think when the rhetorical, political and hyperbolic dust settles, Bush, et al won't be the secrecy neanderthals the professors above argue; hell bent on taking yours and my rights away. Just trying to catch the bad guys (those that hate jew dogs, christian infidels, et al) and keep us safe.

I am trying to think how personally GW Bush is benefiting by all these secret nefarius activites (other than of course what you posit to be incompetence exposed). Highly doubtful that is the real case.

I am looking forward to Jan 07 as the Dems take over so I can learn more about Bush et al, possibly about Diana/Clinton also. Should be fun.

Take heart, Professors Stone and Marshall, democracy works. We the People works. We'll learn more in a few months.

Erasmussimo

Mr. Hamilton, you seem upset over this essay; your comment teems with attack language but has precious little in the way of a case. Let me address what little there is:

First, you engage in straw man reasoning when you cast the argument in terms of the CIA and the NSA. Messrs Stone and Marshall provided a long list of specific acts that they found objectionable. You did not raise a single objection to any of the items on that list. If you have an objection, please make it. Objecting to a claim they did not make is divagatory.

You write, "Somehow I think when the rhetorical, political and hyperbolic dust settles, Bush, et al won't be the secrecy neanderthals the professors above argue" OK, fine, but WHY do you think so? On what basis do you make that claim? Do you have any arguments specific to the case they make?

You wonder how Mr. Bush benefits from secrecy. The answer is simple: power. Secrecy permits him to act without objections from the body politic. That's power.

You conclude with a sarcastic comment suggesting that the Democratic Congress will bring the truth to light. This is so; yet I would prefer to have a government that operates openly and doesn't require Congressional investigations to uncover the truth. Over and over through history we have learned this simple lesson: when government officials act in secrecy, they abuse their power; when they are held to account, they clean up their act.

Finally, I will ask you the simple question: do you advocate government secrecy in any or all of the cases mentioned by Messrs. Stone and Marshall?

Frederick Hamilton

OK, Eras, lets go down the list:

It refused to disclose the names of those it detained after September 11. Yep agree with that secrecy. Know need for me to know that the man (Sheik Kahlid) who plotted the deaths of 9/11 was in the slammer.

It has adopted a crabbed interpretation of the Freedom of Information Act, rendering millions of pages of government documents unavailable to the American people. Don't know what to make of that assertion by the professors. "Crabbed interpretation" sounds pretty mushy to me on the professors part. Me thinks they are the ones who should get specific.

It has redacted vast quantities of “sensitive” information from thousands of government websites. Again the professors aren't specific and I think they are into their hyperbolic mode. I do remember the feds redacting how to construct a nuclear explosive device from one of their web sites. But the "thousands" of government websites? Oh dear professors doubt the "thousands" and could since you know these "thousands" of websites let the rest of us know what these "thousands" are? Not to hard to do since you knnow them or know the source of your claim. Please clue the rest of us in.

Secretly authorized the National Security Agency to engage in electronic surveillance of American citizens. Yep, agree with the NSA program to intercept international calls from suspected jihadists all the way. Hope they were successful. Calls into or out of the U.S. Right on. If the NSA professionals have reason to believe the international call could save American lives, they would be derelect in not listening in. Lets see how the Taylor decision plays out. I support the NSA program.

It secretly established prisons in Eastern Europe and secretly authorized rendition and torture. Don't quarell with secret prisons anywhere in the world (I am sure we had them in World War II). Don't quarell with rendition of captured enemy jihadists to those prisons. Don't favor torture and the Dems are going to have to prove Bush, Gonzales, Rumsfeld, et al approved and condoned torture with specifics. Most of the torture talk is hyperbole.

It secretly authorized the indefinite detention of American citizens. Again, the professors are engaging in hyperbole. Hamdan, Padilla, Taliban Johnny Walker, et al were quite public. Despicable players all. What American citizens were kept "secretely"? Be specific with this please. But to answer your question, yes, I object to any American citizen being held by our government secretely and without counsel.

It has concealed the cost of its policies in “special appropriations” bills, threatened public employees and newspapers with criminal prosecution for revealing its secrets, and deliberately masked its motives, its policies, and its failures from We the People. Wow, now that really gives the professors away. Concealed "special appropriations" bills. Like what? All defense appropriations and supplemental appropriations for the war are quite public indeed. Are they saying the NSA and CIA budgets are state secrets? I approve. The budgets of the NSA, CIA, are not available to me and I am comfortable with that. Threatened public employees with criminal prosecution? Wonderful. If you work for the NSA and leak, on to the slammer. There are avenues to take your case if you think the administration is breaking the law and the front page of the NY Times is not the place. Yep I approve. And if the NY Times knowingly broke the law, they are not above the law either. Neither was Judith Miller sitting in the slammer after telling Fitzgerald to take a hike in the Plame affair. Which by the way, the NY Times wanted a special prosecutor appointed for. I'll go out on a limb and say for the sake of all these horrible secrecy violations by Bush, Gonzales, Rumsfeld, Cheney, Libby, et al, that the only person to have gone to jail when it is all said and done was a member of the press who wouldn't cooperate with a criminal investigation.

"and deliberately masked its motives, its policies, and its failures from We the People". That may be the biggest laugher of all. Boy were the Bush folks great at masking its motives, policies and failures from We the People. Wake up the professors and tell them the Dems took the House and Senate. Totally based on the "unknown" motives, policies and failures of the Bush administration. Can't believe the public voted the way they did in such ignorance of the motives, policies and failures of the Bush administration. You can't win that secrecy argument professors. Unless your talking to people who don't read, don't own computers and don't know what the word internet means.

Nice political post with no import at this juncture. Now, will the Dems if they take the White House in 2008 have a secret NSA? Secret CIA? Secret plans for the jihadists and al Qaeda and want to keep it secret as hell? Yes, yes and yes and appropriately so.

I think I touched all the points of the Stone/Marshall post.

I want our country vigorously looking for, finding and eliminating/incarcerating/renditioning the insane jihadists. Not torturing them unless a known nuclear device will go off in hours and they have the man/woman who can tell them where and when.


Erasmussimo

Thank you, Mr. Hamilton. In response:

You approve the secret detention of several thousand American citizens without even releasing their names. Not one of the Muslims detained in the post 9/11 hysteria was ever charged with anything related to terrorism, although a number were deported on immigration violations. You refer to Sheik Khalid, but he was not part of that detention sweep. You are dodging the issue here. When the government detains thousands of people, many of whom are American citizens, does not the public have a right to know the extent and nature of the sweep?

Your next two points are little more than a complaint that the professors have failed to specify their charges. Yet you seem to use this complaint to deny that the government has made many documents unavailable, and redacted material from its websites. Are you actually claiming that the Bush Administration is just as open as its predecessor?

Your comments on the NSA warrantless surveillance also dodge the point. They accuse the government of engaging in a secret program; you defend the existence of the program. The difference is that the government could have revealed that it was engaging in warrantless wiretapping without in any way jeopardizing its mission. (Do you really think that terrorists were unaware of this?) The only people deceived by the government secrecy were the voters. Keeping the program secret served no useful intelligence function, but it did serve a political function. So I ask you to address the point made by the professors: do you believe that the warrantless wiretapping program was justifiably kept secret? If so, what justification do you offer?

You have no quarrel with secret prisons anywhere in the world. If the prisons are secret, then surely the prisoners are secret. Thus, you are asserting that the US government has the right to kidnap any person anywhere in the world, and detain them in secrecy indefinitely. I find this attitude profoundly antithetical to the concept of the rule of law.

You attempt to cover yourself with the suggestion that you approve only of the kidnapping of enemy jihadists. OK, fine, how do you know that they really are enemy jihadists and not innocent bystanders? You don't, because their cases are kept secret. You say, "trust the government, they never make mistakes." Right.

You're right that the government did not keep the detention of American citizens a secret -- at least, none that we know of! There could be some out there -- but you're right that we have no evidence of such.

On the matter of the special appropriations bills, I do recall a few cases of fiscal shenanigans that the Democrats objected to but were unable to force into the open. There was one well-documented case, however, involving the prescriptions act. The government had deliberately cooked the numbers to make it come out to a total cost of under $400 billion. A government accountant discovered the ploy and went to his boss. His boss, a political appointee, threatened him with termination should he reveal what he knew. The deception held together until just after the bill was passed, and then the truth came tumbling out. They had documentation on the boss's threat to fire the accountant, and this turns out to be against the law. He resigned his position but the Bush Administration refused to enforce the law against him by docking his back pay, even though the law in question requires that administrative penalty.

While I agree that the NSA and CIA budgets are properly kept secret, I believe that the professors failed to specify that the budget details were hidden even from the Congressional committees charged with oversight of these agencies. It's one thing to deceive the voters, and it's an entirely different thing to subvert legislative oversight.

You contemptuously dismiss the notion that the Bush Administration masked its motives, policies, and failures from the American people. Perhaps you forget the first five years of this Administration, when the public believed everything that the Administration gave them, and they got away with it. The falsehoods presented as evidence of WMD? The refusal to permit public inspection of the Vice President's consultation with energy company executives? These are but two examples of the Administration's secretive methods.

I agree with you that the USA should pursue insane jihadists -- so long as it pursues only insane jihadists and doesn't pursue innocent people. How you gonna tell the difference?

LAK

I think in many ways the health of one's nation and perhaps the world can be measured as a function of secrecy necessary in government. Same is probably true for human relationships.

"I met another man who was wounded with hatred"

Frederick Hamilton

LAK makes a cogent point. In a perfect world secrecy of gov't activities would make no sense and would indeed be indicative of a nation's / world's health.

Today we have Muslim jihadists for whom 9/11 was simply a continuing attack on the west, Iran wants nukes and is holding talks on the denial of the holocaust, North Korea, Syria, et al. No nation desiring to maintain freedom and liberty can deal with the realities of today's world without some secrecy in logistical details. Overall, the entire policy and goals should be totally open to public debate. How the NSA and the CIA are able to infiltrate jihadists and al Qaeda should not be part of the public dialog.

Eras, you are regurgitating hyperbolic situations that have no basis in fact. "You approve the secret detention of several thousand American citizens without even releasing their names." There were never secret detention of "several thousand American citizens". Sorry. Never happened.

My approving of "secret" prisons has to do with detaining jihadists secretly so as not to compromise the war against them. I acknowledge the evilness, barbarity and hate of the jihadists toward jew dogs and christian infidels and to their death and destruction. I acknowledge the jihadists goal of billions of Muslims required to live under Sharia law worldwide. Those realities are driving the jihadists and need to drive us to fight them at every turn until they desist in their desire to destroy democracies and freedom loving people.

Yes, the NSA intercepts are appropriate and legal. Lets wait on Taylor and see.

Please, were talking war and jihadists not prescription drugs. Congress sets the monies spent. The Dems are now in contol, relax and lets see if they uncover horrible cooked books on the war.

You tell the difference between terrorist jihadists and innocent people by investigative techniques and secret programs that you don't like, otherwise you can't differentiate between jihadists and peaceful Muslims. By and large, Americans are not out to destroy our nation. Muslims yes, all Muslims no. Surriptitously differentiate the two. Yes sir.

Roach

Someday you all should go over to globalsecurity.org and ask yourselves if it's a good idea that any terrorist with an internet connection can get military manuals on things like urban combat, US Counterinsurgency Tactics, the use of M40A1 sniper rifle, etc.

Similarly, should it be so easy for terrorists to get a handle on where sensitive explosives are stored in an urban area through a simple search of the EPA website. These are the kinds of information removed from the web in the wake of 9/11.

As for this, "everal thousand American citizens without even releasing their names. Not one of the Muslims detained in the post 9/11 hysteria was ever charged with anything related to terrorism, although a number were deported on immigration violations." Here's a simple lesson in definitions: nonresident aliens and resident aliens are not "citizens." The massive numbers of Pakistanis and Muslims deported post-9/11 were overstaying visas, had taken suspicious trips to Afghanistan, or were otherwise not supposed to be here. There's no reason that the government had some duty to collate that data for the benefit of the media.

Stone's description of hidden and secret information is entirely unspecific. Here's some questions for him and his supporters:

What military manuals should be available to the general public, at home and abroad?

Should the public be able to get through FOIA requests information on the number, training, shifts, and the like for perimeter security at sensitive facilities?

When the member of a terrorist cell is apprehended, how quickly should that information be made public if others in the cell are not yet apprehended? Immediately?!?

Should corrupt officials that reveal secrets not be discovered when they do so through members of the media?

One last question. Stone writes, " We make better decisions when we consider more rather than fewer perspectives. We make better decisions when we openly debate the alternatives. We make better decisions when we know we have to justify our judgments and know we will be held accountable for our mistakes. Secrecy undermines all these values."

Let's consider this in the context of the law school and the university, both of which are incredibly secretive. Why not have an annual report showing every professors' salary? Why not have an annual report showing the massive gulf in qualifications between white and minority students? Why not have an annual report that discloses each professors grading practices, number of sexual harassment claims lodged against him, the real number of crimes in Hyde Park (and the racial makeup of the perpetrators)?

Liberals like Stone love secrecy when it serves their purposes, particularly to keep alive various liberal myths about race, about affirmative action, about the incredibly proligacy of the university, and the like. And the stakes are so much lower. In the anti-terrorism context we're trying to prevent the mass murder of Americans. In the university context, they're trying to preserve respect for various demonstrably false noble lies on which so much modern liberalism rests.

Stone has revealed himself as a petty, partisan hack with mediocre rhetorical skills. He should stick to abstruse legal issues and quit embarassing himself.

golddog

Are we talking about the same things here? I do not think that anyone wants to reveal logistical details. I may be wrong, but please point to a specific section in Professor Stone's post where he said that the American people should have access to “US Counterinsurgency Tactics.”

Professor Stone was arguing that in a democracy the people should have information on fundamental policy decisions. That means that when the executive decides that he will wiretap American citizens without warrants despite a law passed by Congress that specifically forbids him to do so, that the citizenry is aware of it. That means when the executive wants to torture those suspected, not proven guilty, of terrorism, the public should know about it. That when the executive wants to set up secret prisons in other countries to carry out torture, the American public should know. Policy decisions are different than knowing troop movements.

The basic issue is that of trust. Frederick Hamilton and Roach trust the government under the Bush administration. Others, such as Professor Stone and the founders, are always wary of trusting the government too much, and realize that only through total transparency can the government be kept honest.

Roach, you seem not to understand the difference between the government and a private institution. The law school does not have to provide the information that you want, because it would unnecessarily intrude on the privacy of individuals. That is fine because the University of Chicago does not have a monopoly on the legitimate use of force, its workings do not have to be completely transparent. The workings of privately owned companies are not completely transparent. The federal government does have a monopoly on the use of force. Thus it is imperative that it is always monitored to prevent abuse of that power.

Roach

I don't know what information Stone thinks should be accessible and what should not. He speaks in a vague manner (as always) and rather imperiously refuses to engage his critics (as always).

I know some of the info yanked off government websites in the wake of 9/11 included some of the information I described, and this has been called a harbinger of increased secrecy.

We should not supposedly intercept international phone calls to al Qaeda without a warrant. If that's true, my question is what signals intelligence work would you allow and how much of what we're capable of intercepting would you have disclosed to the general public?

As for the private institution thing, I agree it's different. But if secrecy is so bad, and tends to corrupt, and disallows transparency, why shouldn't there be more financial transparency for students who pay upwards of $30,000 per year on a product where they don't even know where and how the money is spent? Private institutions can be corrupted to, whether it's Enron or a university. If secrecy is so bad, it's interesting that there is so much of it in an institution Stone was once the provost of.

Frederick Hamilton

As per golddog: "Professor Stone was arguing that in a democracy the people should have information on fundamental policy decisions. That means that when the executive decides that he will wiretap American citizens without warrants despite a law passed by Congress that specifically forbids him to do so, that the citizenry is aware of it. That means when the executive wants to torture those suspected, not proven guilty, of terrorism, the public should know about it. That when the executive wants to set up secret prisons in other countries to carry out torture, the American public should know."

For starters, most citizens and I want the executive (NSA) listening in on international calls of jihadists in a time of war. The 6th Circuit Court of Appeals took the unprecedented approach of telling the executive to keep on listening until they could ajudicate the ACLU / Judge Taylor lawsuit decision. The NSA program has been given a green light by the 6th Circuit Court of Appeals as of now and intercepting jihadist calls will in my opinion be judged quite legal as incident to war. If anything, FISA may be unconstitutional if it means an executive in time of war cannot listen in on the enemy. Lets all take a deep breath and wait for the deciision of the 6th Circuit Court of Appeals and ultimately the Supremes.

The argument that the public needs to know about "decisions to torture" or about "secret prisons" is of no merit. Again, when at war, unlawful enemy combatants (read terrorists, jihadists) can be kept any darn place the commander in chief wants to keep them (secret or public). I am still waiting for the issue of Bush, Gonzales, Rumsfeld, et al ordering torture to be proven. Maybe the Dems in control of congress next year can unearth the orders to do so.

Those of you that want transparency in the conduct of the war on terror, or the Iraq War or the Afghan war are interesting folks. I haven't seen any of you writing that bin Laden, al Qaeda, Hamas, Hezbollah, should be giving us their transparent plans. In the abscence of the jihadists giving us their transparent plans how do you expect the gov't to stop them? By simply asking where they are going to strike next? And while were are asking we'll simply let them know transparently how we are going about listening in, watching, decoding, and interfering with their plans. Kinda naive, silly and dangerous don't you think?

LAK

Frederick, these guys wouldn't be around if it wasn't for our military industrial complex and its presence around the world. Years of cold war exploitation left a bunch of angry resentful muslims around the world. Their cultures are dominated by religion, their economies primative, and they are still pissed about having been a few hundred years behind when modernism hit. And this cultural resentment manifests itself in a few militant idiots that pose much less of a threat to you and yours than you give them credit for. (But I know, fear makes a man not think well).

If we spent our resources getting the majority of their people (and the large portion of our population) out of the clutches of poverty and religion, if we finally woke up and stopped spending $500 billion a year on a war machine that is all over the globe, then maybe the handful of angry religious idiots would stop having something to fight for and take responsibility for their own backward ass cultures. Ya ever consider that?

Military Industrial Complex = BAD

Guys like Donald Rumsfeld, Guys liek Cheney, the veste interests in the war machine, they are the problem with the world. Without them Osama has nothing to fight for. Without Osama, they have no basis to have people make them rich for supplying the world with F-14s and rocket launchers and cluster bombs.

Erasmussimo

Mr. Hamilton, I'd like to respond to a number of points you make, but first I'd like to comment on your hysterical claims about the dangers of Islamic fanatics. It seems to me that you are every bit as fanatic as they are -- you approach the problem in frantic terms as a war between good and evil. Yes, Islamic fanatics can be dangerous. So can guns, cars, electric wires, ladders, lawn mowers, drunks, and teenagers. Do you propose a war against all these things? Do you wish to incarcerate anyone who owns a gun, drives a car, etc? Of course not! The world is full of dangers and we approach each one in a measured and reasonable fashion, assessing the risk imposed against the costs of reducing the risk. You are piling a lot of different risks into one big pile and then urging radical action be taken against any and all persons associated with those risks. You are truly and utterly terrorized, a complete victory for the terrorists.

We are in agreement on one key point: "Overall, the entire policy and goals should be totally open to public debate. How the NSA and the CIA are able to infiltrate jihadists and al Qaeda should not be part of the public dialog." I agree exactly with this point. However, there is some overlap between "policy" in the first sentence and "How" in the second sentence. Although I am not interested in specifics of any case, I do think that the public has a right to know if the policy implementations violate our standards of fairness and decency. For example, the policy of rendition is a definite violation of American standards of decency. Would you maintain that this policy should have been kept secret?

You write, "Eras, you are regurgitating hyperbolic situations that have no basis in fact. "You approve the secret detention of several thousand American citizens without even releasing their names." There were never secret detention of "several thousand American citizens". Sorry. Never happened."

You should not be so certain of your facts when you have not checked them. Here are some sources for you:

http://soundvision.com/info/muslims/internment.asp

This one states that the government has now admitted to 6,483 arrests and detentions. At the time, they were secret.

Here's another source that states that "more than 1,200" such people were detained and denied due process for months:

http://www.csmonitor.com/2006/1127/p01s03-ussc.html

This link refers to 1,200 original detainees:

http://www.vawnet.org/HelpAndSafety/trauma2.php

This source refers to "thousands" of detentions:

http://www.alternet.org/story/13979/

"Until that reversal," wrote civil liberties law authority David Cole, in The Nation magazine, "the Detroit case had marked the only terrorist conviction obtained from the Justice Department's detention of more than 5,000 foreign nationals in anti-terrorism sweeps since 9/11."

The above from:

http://www.antiwar.com/ips/fisher.php?articleid=3707

I could go on, but I believe that I have made my point. The government did detain thousands of people after 9/11. Your denial of this fact is utterly wrong.

You write, "Yes, the NSA intercepts are appropriate and legal. Lets wait on Taylor and see."

Technically, the intercepts are illegal. That's the current finding. It is being appealed. As you say, we should wait until the final resolution; declaring them legal at this point is not correct.

You object to my reference of the deceptions involved in the prescription drugs act with the assertion, "Please, were talking war and jihadists not prescription drugs."

Since when? The original essay is not about war and jihadists, it is about secrecy in government. You change the subject and then object when I stick to it?

Your final paragraph is truly something out of Joseph Heller. I asked how one differentiates between evil Muslim fanatics (whom you would secretly deprive of legal rights) and innocent people. You answer, "You tell the difference between terrorist jihadists and innocent people by investigative techniques and secret programs that you don't like, otherwise you can't differentiate between jihadists and peaceful Muslims."

So your claim is that secret, unaccountable programs produce reliable results and open, transparent processes do not. This statement is breathtakingly wrong and is directly contradicted by many recent cases, the history of governments, and human psychology.

Erasmussimo

Mr. Hamilton, I am surprised that you so breezily dismiss the Constitution with your assertion that "when at war, unlawful enemy combatants (read terrorists, jihadists) can be kept any darn place the commander in chief wants to keep them (secret or public)." If the Commander in Chief gets a document with a typo on a Social Security Number and mistakenly labels me an unlawful enemy combatant and secretly ships me off to Guantanamo Bay, just how am I supposed to correct the mistake? Remember, I'm being held in secret without access to an attorney.

Next, you offer us an argument of symmetry. You ask, since our opponents don't play by the rules, why should we play by the rules? The answer is, because we're not going to abandon the Constitution. Your argument can be recast as follows: "Since they're bad guys, we should be bad guys, too." I hope that you can see how depraved your argument is.

LAK

Eras,

Someone who can't look at the last 5 years and see a manufactured war, hyped fear, an unconstitutional power grab based on that fear and fake war, probably isn't worth arguing with.

Leave Frederick to soak in his piss filled pants, eventually the rash will get to him. Screwface knows who feels frightened.

freddy

frederick hamilton is not a lawyer. He does not understand that the issue is how to determine if one is in fact a terrorist or enemy combatant or jihadist. Who makes that decision? The Executive unilaterally, with no oversight? Once someone is deemed an enemy combatant through a procedure that is constitutional, then maybe it's reasonable to permit the Executive to keep that person in a secret prison.

golddog

Frederick Hamilton writes, “most citizens and I want the executive (NSA) listening in on international calls of jihadists in a time of war.” I agree. Roach, to answer your question I have no problems with the surveillance of terrorists as long it is within the confines of the law.

What I do oppose is listening in on domestic phone calls, involving American citizens, on at least one end, without a warrant. I am at a loss as to why you are conflating listening in with a warrant to listening in without a warrant; to me the distinction is clear. Of course there are instances where there is not enough time to procure a warrant. It is my understanding that under current law, it is possible to listen in and then receive the warrant in the next 72 hours. The FISA court almost always grants the warrants. According to Wikipedia, “[t]hrough the end of 2004, 18,761 warrants were granted, while just five were rejected [from the FISA court].” There is no reason not to do surveillance within the limits of the law.

As for whether the law is unconstitutional, I do not know whether it is, but until it is decided, I am operating on the assumption that it is legal.

“The argument that the public needs to know about 'decisions to torture' or about 'secret prisons' is of no merit. Again, when at war, unlawful enemy combatants (read terrorists, jihadists) can be kept any darn place the commander in chief wants to keep them (secret or public).”

You equivocate in your use of the word war. Are you talking about the Iraq war? I do not see the need for domestic surveillance being essential to the Iraq war. It is likelier that you are talking about the war on terror. This is a silly argument because the war on terror is a metaphor, no different than the war on crime or the war on poverty. Are you willing to give up freedoms for other metaphorical wars? The war on terror has no end, unlike most other real wars, and so any liberty taken away by the government is taken away permanently. Whether we decide to give up these freedoms or not, we at the very least deserve to be informed so that we can have a discussion about whether the costs are worth the benefits.

So I challenge either Roach or Frederick Hamilton to explain to me the merits of wiretapping without warrants. I see no advantages in it helping to catch terrorists, but perhaps I missed something. All I see is the executive branch unilaterally removing a check placed on it by Congress. I thought both of you tended to give deference to legislative bodies? Why not in this scenario?

Roach

If the liberal pacifists on this board had their way, the Japanese Government could have stopped the atomic bombing of Hiroshima and Nagasaki with a TRO hearing.

Sometimes the executive gets to decide something entrusted to its discretion, just like Congress can unseat a member or impeach an official without review to any court and just like the Supreme Court gets to make all kinds of crazy rulings without executive or legislative oversight (other than yanking jurisdiction).

Sorry about your luck, but very little in wartime should involve the courts. The Congress should yank funding if it doesn't like what's happening, but it doesn't get to get involved at the level of how unlawful combatant prisoners are treated when captured on foreign battlfields *after the President was uathorized to use force against that enemy.* It can no more do that than pass a law sawing such and such a tank batallion must go around the enemy's left flank. I mean, seriously, as far as process goes how much process do you really think there ever is on the battlefield. Talk to guys over there; a guys looks shifty, takes photos of the base, uses a cell phone supiciously, or carries a gun without a good explanation and he gets wasted, sometimes from hundreds of yards away. Not much process or pre-event discovery going on there.

Frederick Hamilton

Admittedly not a lawyer. Helps to be able to see the obfuscation only a lawyer can dig up. Such as this argument: "Yes, Islamic fanatics can be dangerous. So can guns, cars, electric wires, ladders, lawn mowers, drunks, and teenagers. Do you propose a war against all these things? Do you wish to incarcerate anyone who owns a gun, drives a car, etc?" Oh I forgot, it was an electrical fire that brought down the three buildings at the WTC.

Eras, on a technicality, the NSA intercepts are currently legal. 6th Circuit Court of Appeals allows them to continue. If ongoing, told to keep doing it by a federal appeals court then I suspect at this point they aren't quite technically legal nor illegal. But then I am not a lawyer. Just an ordinary citizen who is glad the NSA is up the jihadists arse.

Eras, you were claiming the gov't arrested thousands of US CITIZENS and held them in secret. Glad you realized your error and the thousands were NOT US CITIZENS. I realize you SS# hasn't been transposed putting you in the slammer secretly. Could you tell me someone who has?

golddog, simple. The legal merits of wiretapping without warrants of internatinal calls of jihadists in a time of war is that as commander in chief you don't need a warrant to spy on the enemy. The practical merits are that in real time the time to get the warrant negates the effictiveness of the enterprise. The "check" placed on the executive by Congress may not apply in this instance. Again, lets let the legal process advance. For now the program continues. The NSA listens in on international calls of suspected terrorists. No member of Congress has introduced a bill to strip NSA of funding to do this. The 6th Circuit Court of Appeals said continue. The executive says it is part of war powers. I think those arguing against the NSA program will get the result they got when they argued law schools could keep the military recruiters off campus because of "free speech". Just my opinion and as noted above I am not a lawyer.

Here is another great argument: "This is a silly argument because the war on terror is a metaphor, no different than the war on crime or the war on poverty." No golddog, the war on terror is a real war. Guns firing. Bombs killing innocents all over the world. Clearly you don't want it to be a real war. Unfortunately, Danny Pearl's family and hundreds of thousands of other killed innocents families know the difference. Would it take the killing of one of your family members to tell the difference between the war on terror and the war on poverty?

Again, goldog, disagree. The war on terror will have an end just as the Cold War had an end. The war against Muslim jihadists determined to kill Jew pigs and Christian infidels wherever and whenever they can will probably last another 10 to 20 years. You don't have the stomach for it and that's fine. The jihadists have a real stomach for it and that is bad. In time their jihad against the west will end.

When I read all the posts here that think the Muslim jihadists hate and death that swirls the globe is a fantasy, that is when I realize the truth to the saying, If good people do nothing. I guess all of you missed your invitation to Iran for the conference on the Holocaust fakery. Reassuring to know that all Iran wants is a nuclear bomb and to wipe Israel off the world's map.

An as to the NSA, I give deference to the law. Not settled yet. If ruled illegal by the Supremes I'll be the first to defer. But I am a lay person. I believe in the law. Lawyers at brilliant law schools didn't defer to the Supremes in FAIR v Rumsfeld and are looking now for ways to circumvent the law and their defeat. But lawyers get to do that because well,uhm, they know the law and know the law doesn't mean shit to them. My final eventual deference is to We the People.

Cynic

Roach, as to your theory about how the "gap in qualifications" would pan out if it were made public, I agree that the reveal would likely be quite interesting indeed:

"Candidates named Emily O'Brien or Neil McCarthy were much more likely to get calls back from potential employers than applicants named Tamika Williams and Jamal Jackson, even though they had the same credentials, according to a study by the University of Chicago."

From cnn.com (http://www.cnn.com/2006/US/12/12/racism.poll/index.html) (aggravatingly, tags don't seem to work)

I guess even the venerable old University of Chicago acknowledges that racism still hurts -- guess who? -- MINORITIES.

Erasmussimo

Mr. Hamilton, you dismiss the dangers imposed by non-terrorist sources with the blithe statement, "Oh I forgot, it was an electrical fire that brought down the three buildings at the WTC." All you have done is affirm that 3,000 people were killed by terrorists. What you overlook is that many many more people are killed every year by guns, cars, electricity, and so forth. In terms of killing American citizens, terrorists are pretty far down on the list. My point is that you are advocating extreme measures in response to a threat that is by every objective measure less serious than other risks that you don't give a second glance to.

You continue to insist on the falsehood that the government did not incarcerate thousands of citizens in the post 9/11 mass detentions -- but now you are hanging your case on the claim that the detainees were not citizens. This is not true. We know that many of the detainees were in fact US citizens. We don't know exactly how many were citizens, but your blanket dismissal of the point is again based on a falsehood.

You dodge my point about the arbitrariness of skipping due process by asking if I know anybody who has been incarcerated because of a mistyped SSN. No, I do not -- and that's the point I was making! We don't know if there's somebody being held for some stupid mistake because the government refuses to carry out any kind of due process. We do know that a number of people have been released after the government figured out that it was all an unfortunate mistake -- but the arbitrariness of the government's process and the secrecy with which it is implemented makes it impossible for us to know how many more innocent people are still being incarcerated. You can't prove that the system works and I can't prove that it doesn't work -- because it's all held secret. That's the problem with secrecy.

Again you propagate the falsehood that the war on terror is "real". Again you conflate killing with war. Again you extend metaphor into reality. We don't need to quibble about our definition of war; the Constitution provides a clear and precise definition of war for us. War is a state declared by Congress. Congress has not made any such declaration. Therefore, in Constitutional terms, there is no war. You quibble that Congress authorized the use of military force, attempting to equate this authorization with war. But the language of the Constitution is absolutely clear and Congress explicitly chose NOT to declare war.

You could claim that the current situation is operationally tantamount to war. Perhaps it is. However, we are not talking about operational equivalents; we're talking about the law. The whole point and purpose of law is to precisely define conditions and consequences. The law hates sloppy language. And you are using sloppy language when you call our current situation a war. If you want to make a movie about it, you can call it war; if you want to write a book about it, you can call it war. If you want to give a rousing oration about it, you can call it war. But if you want to discuss it in legal terms, you must abide by the strict legal definitions of the terms.

And, by the way, you say that the war on terror will have a definite end. I ask you, then when did it begin? With the first WTC bombing in 1993? With the Achille Lauro hijacking? The Munich Olympics? The coup in Iran? The unrest in Iraq in the 30s? Gallipoli? The Crusades? Manzikert?

You confidently predict that the war on terror will end in 10 or 20 years. OK, why not define the victory conditions? Under what conditions will the President be able to prance on a flattop declaring "Mission Accomplished"? Will that come when every last terrorist is dead? How will you know that every last terrorist is dead? Will it come when Osama bin Laden is dead? When Iran promises never to support terrorism again -- and means it? Please explain what you mean by victory in the war on terrorism.

Roach

I would bet Frank Zappa's kids would have a hard time finding a gig too. People with class don't name their kids Moon Unit, Tupac, or anything else weird.

Cynic

"I would bet Frank Zappa's kids would have a hard time finding a gig too. People with class don't name their kids Moon Unit, Tupac, or anything else weird."

I love that any name without Anglo-Saxxon roots is "weird." That's a cool rhetorical trick you've got there.

Too bad my 12-year-old cousin thought it up first.

Leif

Cynic, Levitt has a pretty thorough debunking of this in Freakonomics, summarized here:

http://www.slate.com/id/2116449

Cynic

Leif, I don't understand how the article you linked to at all meaningfully debunks the finding that REGARDLESS OF QUALIFICATIONS, persons with more "ethnic" sounding names are less likely to be hired. The only argument you might plausibly be trying to make here is that the reaction is both classist AND racist. To which I respond: now we've got twice as many problems to fix. Better get to work, then.

Unless you are attempting to argue that, statistically speaking, a person from a single-parent, poor background is less likely to make a good employee than someone from an upper class background, even where their qualifications are otherwise equivalent. Which seems to me to be quite a stretch. I'm unfamiliar with any studies that have been done to show this; do you know of any?

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