The Preemptive Blame Game

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According to Newsweek, the so-called “Terrorist Surveillance Program” initiated by the Bush administration sometime in 2001 was ruled illegal by the top-secret FISA court some 4 or 5 months ago. This is a big deal.

The “TSP” is the program under which the National Security Agency monitored the international phone calls of Americans, without first obtaining a warrant; the program that was first reported to the public in 2005 by the New York Times, much to the outrage of the administration and numerous conservative commentators, some of whom called it treason; the program that was ruled illegal by a federal court about this time last year. This past January, Attorney General Alberto Gonzales announced that the program would, finally, be submitted to the FISA court for review. (FISA stands for Foreign Intelligence Surveillance Act. It is a law that, despite its name, governs domestic spying in the US.)

This was not exactly a magnanimous gesture by the administration, give that federal law requires FISA court approval be obtained before domestic spying is done, not after. By failing to obtain a valid FISA warrant (or warrants) for the program, the president ran the program completely outside the law from 2001 until earlier this year. Conducting domestic spying without FISA approval is a felony.

So now the program has been submitted to FISA, and FISA has said, “No, Mr. President, what you want to do (what you have been doing) is illegal.”

The failure of the “TSP” to meet FISA standards is why, if you follow the news, you’ve been hearing so much lately about the “need” for an update to FISA. The president and other members of his administration, together with conservatives in Congress, have been putting the squeeze on congressional Democrats to rush through the FISA changes the president has proposed; changes that would bring the “TSP” within the law for the first time in its 6 year history.

Among the changes the president wants is the following: domestic spying programs would no longer need approval from the FISA court, but only from the attorney general.

Let’s think about that one for just a minute.

The FISA court provides precious little separation of powers or protection of civil liberties, as it is. Its proceedings are completely secret. Nonetheless, it does at least require approval of someone outside the Executive Branch. A president can’t just launch any domestic spying program s/he wants (which, since the attorney general is appointed by the president, would effectively be the case under President Bush’s proposed FISA changes).

One could reasonably ask how big a deal this is. I mean, maybe we should trust presidents not to abuse (or foolishly misuse) their spying powers. There’s certainly a case to be made there, having to do with defending the country — especially now, in the era of what William Langewiesche has called “the nuclear poor.”

The problem is history.

The history of America’s spy agencies is a history of misuse and abuse. (I’ll have more to say about this in a future book-related post.) As the Church Committee found in its extensive study in the early 1970s, pretty much every time an administration of either party has had the opportunity to misuse or abuse espionage programs, they’ve seized on it. Basically, every time.

In response to the Bush administration’s FISA proposals, congressional Democrats have proposed changes that also would bring the “TSP” within the law, but without moving the reviewing authority from the FISA court to the attorney general’s office.

The administration and the congressional GOP are having a fit. Here’s where the “preemptive blame game” comes in. Basically, Republicans are saying that if the president doesn’t get exactly the changes he wants, America will suffer another terrorist attack and, you guessed it, it will be the Democrats’ fault.

First of all, America is going to suffer another terrorist attack sooner or later, regardless of what anybody in either party does. That’s just the nature of the world we now live in. It’s going to happen. We might as well get used to that idea now, so we don’t panic when it happens. (Like much of the country did after 9/11.)

Second, no matter what the Democrats do — even if they approve every GOP security and defense proposal from now till the second coming — the GOP is going to blame them when that attack happens.

That is what the GOP does. “Democrats are soft on ________.” Fill in the blank with whatever the current boogeyman is: Communism, drugs, crime, terrorism, etc. It’s the #1 song on their campaign hit parade, so they aren’t going to give it up. Not under any circumstances. Not until voters stop buying it.

So that’s where our national security/civil liberties debate is at, these days. No matter what happens, it’ll be the Democrats’ fault, so screw civil liberties and separation of powers and let the president do whatever s/he wants. Just shut up and salute.

Does this strike anybody as particularly American?

Update: Well, as noted in my comment, below, the Dems looked the preemptive blame game square in the eyes, and caved in. Here are some reactions from would-be Dem supporters around the web:

Democrats’ Responsibility for Bush Radicalism

Senate Gives In On Wiretapping

Senate Passes Administration Bill

Pavlovian Reaction

Methinks the ’08 congressional elections just got more interesting.

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8 Responses to “The Preemptive Blame Game”

  1. alsturgeon Says:

    I still haven’t figured out how to make the author’s name appear with the post. For the record, this is Juvenal’s post (anyone who reads regularly will know that w/o having to depend on my identification).

    So, the Bush administration is guilty of a felony. Is this correct? If so, what happens to administrations that are guilty of felonies?

    Seems rather odd to be demanding anything when one’s clearly broken a law, and most presumptuous to complain about not getting the law you’ve broken changed the way you’d like it.

  2. urbino Says:

    So, the Bush administration is guilty of a felony. Is this correct?

    I’m no expert, but it sure looks that way.

    If so, what happens to administrations that are guilty of felonies?

    Nothing, evidently.

    Seems rather odd to be demanding anything when one’s clearly broken a law, and most presumptuous to complain about not getting the law you’ve broken changed the way you’d like it.

    Joe and I had a discussion about this, way back in the day. See, in 2005, when the Times first reported this program, Congress offered to change the FISA law to cover it (and whatever else the president wanted). But back then, the administration was adamant that they did not want Congress involved. At all.

    So there never was any need for them to go outside the law to run this program. Congress would’ve fallen all over itself in 2001 to give the president everything he asked for. He just didn’t want to ask. He’s The Decider, by gum. He doesn’t need any darned laws.

    His presumptuousness goes beyond even what you noted. First the administration told Congress it was none of their d*** business. Now he’s saying it is their d*** business, but they have to do it exactly the way he wants. And for muscle in this little extortion racket, he’s preemptively blaming them for any future terrorist attack.

    It’s good to be the king . . . er . . . decider.

  3. urbino Says:

    It looks like you need to adjust your time zone, Al.

  4. alsturgeon Says:

    I think I have that fixed. Keep finding more things to fix, however.

  5. unicorntx Says:

    I guess the only real solution is impechment proceedings, which I’ve always been a little reluctant to support. It seems like such an overly-dramatic response. We’ve been a nation that has prided itself on peaceful transfers of power and on the integrity of our leadership. (So much for that latter source of pride.)

    However, this administration’s impunity leads me to believe that impeachment (or the threat of it) may be the only way to rein him/them in. They certainly seem to be immune to falling approval ratings. While I can’t believe we will elect another Republican president in 2008 – one must wonder about the wisdom of the electorate.

  6. urbino Says:

    I agree that impeachment seems over-the-top. When we think of causes for impeachment, we generally think of crimes related to corruption. The notion of “crimes against the Constitution” leaves us crinkling our nose and asking, “Do we have those?” And even though violation of FISA is a crime in exactly the same sense that tax evasion is a crime, we still have doubts about impeaching for it; it’s a national defense sort of a thing, after all, and we tend to cut presidents a lot of slack on that score.

    But I also agree that the current administration has really taken the bit between its teeth and run away with itself, and the country. It seems there ought to be something we can do to rein it in.

    In that regard, I think the Bush presidency has shone a glaring light on what has heretofore been a small flaw in our system of government. Unlike a parliamentary system, we have no way of recalling a president. We have no vote of no-confidence to force a chief executive to step down, and therefore no threat of it to force him/her to change a policy when the nation is overwhelmingly against it (as every poll shows the country is, on the subject of Iraq). The lack of a no-confidence mechanism combined with presidential term-limits and, in the Bush administration’s case, the lack of future political ambitions for the vice president and a congressional caucus that wants nothing more than to agree with the president, leaves a second-term president utterly unaccountable (short of those “high crimes and misdemeanors”).

    This is why — the only reason why — President Bush can cling to a lawless and feckless attorney general, protect his underlings from criminal prosecutions, plow ahead with a war — a war — that the country and the Congress do not support, allow his vice president to run amok, make constitutionally outrageous claims for power, and just generally give the electorate the finger. Because of the circumstances I mentioned, he’s completely beyond the electoral process, and therefore completely unaccountable to the electorate. There is no more dangerous thing in a democracy; even a republican one.

    The “glaring light” of the Bush second term points out the need in our system for a way to rein in a president who has no future political ambitions (either because of term limits, or simple lack of a desire for a second term) and no sense of shame; a way to hold him or her accountable. In other words, a way to remove him/her from office not for “high crimes and misdemeanors,” but for willfully and perniciously flouting the will of the people. For negating democracy.

    With such a tool in place, the country could prevent runaway presidencies without resort to a national debate about the reasonability of impeachment — a word that, because it implies criminal corruption at the top of our government, will always make a substantial number of us voters flinch.

    A no-confidence vote would reflect lack of support for an otherwise unaccountable president’s policies, not [necessarily] criminality. It would be, I think, a good deal more palatable to most voters.

  7. unicorntx Says:

    I agree, but will the Congress be willing to press for that, given the fear that “one day it will be used against us” (meaning OUR Party).

    What I don’t understand is how so many of the GOP (who will be up for re-election before Iraq is forgotten) can still support the President when the electorate is so overwhelmingly against the war. But, he wields the “patriotism” club pretty well. Any critics are UNPATRIOTIC!!!

  8. urbino Says:

    Say what one will about the Preemptive Blame Game, it works like a charm. The terrorists won.

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