Spy or Die

The Philadelphia Inquirer published this rabid bit of freeper propaganda a few days ago (I guess the title of this post reflects the craven fear they’re trying to instill again just in time for another election).

COMMENTARY

Data-mining is the president's duty
By Andrew C. McCarthy

The latest outbreak of controversy over Bush administration efforts to protect our nation from terrorist attack starkly demonstrates that the left and civil liberties extremists are determined to alter the system the Framers bequeathed us in fundamental and dangerous ways.

Uh, no. The person who is altering the system in fundamental and dangerous ways is Dubya by acting with no oversight of our courts, not “the left,” “civil liberties extremists,” or other freeper boogeymen.

Justice Robert Jackson had been U.S. attorney general in the administration of FDR, the lion of the left who unapologetically eavesdropped on American citizens suspected of collusion with the enemy during World War II.

I realize we’re starting to get into a philosophical disagreement here, but the difference is that there was a real possibility of invasion onto our shores during World War II. You had German submarines patrolling off the Jersey coast near Atlantic City, for example. FDR had to be concerned about Japanese or German agents in this country trying to blow up factories or munitions typically used by nation-states in more conventional type of warfare (though I don’t mean to absolve him here of wrongful internment of Americans of Japanese ancestry). Dubya, however, is spying on about 100 million Americans, according to Richard Clarke, and as he has said, we can’t ALL be terrorists.

In 1948, writing for the court, Jackson asserted that the president, "both as commander in chief and as the nation's organ for foreign affairs," was obliged to gather secret intelligence, and that it "would be intolerable" for federal courts to "review and perhaps nullify actions of the executive taken on information properly held secret." Such actions, Jackson elaborated, "are wholly confided by our Constitution to the political departments of the government, executive and legislative." They involve political judgments "of a kind for which the judiciary has neither aptitude, facilities nor responsibility."

I would need more time to review McCarthy’s exact source material here because he’s doing some very selective transcribing of quoted material (gee, do you think he’s doing this to change the meaning of Jackson’s original opinion?).

Jackson was retracing a path stretching back to Washington, Jefferson, Hamilton, Madison and Lincoln, as well as such giants of the law as Justices John Marshall and Oliver Wendell Holmes Jr. Indeed, Holmes wrote for a unanimous Supreme Court in 1909, "When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."

Again, Holmes wrote this during a period when more conventional type of war (sorry if that sounds too sterile or antiseptic) was looming with Germany (the difference is that back then, there was a more finite definition of a beginning and an end...giving ANY president power indefinitely is tantamount to a dictatorship).

It has been less than five years since the barbarous murders of nearly 3,000 Americans on Sept. 11, 2001. We are at war. We have 150,000 of America's best and bravest in harm's way. And we confront enemies who tell us, repeatedly, that they are working feverishly toward new strikes against our homeland that could dwarf the carnage of 9/11.

”Step Right Up, Ladies And Gentlemen! It’s 'Fear And Smear 2006' Coming To Your Neighborhood, Whether You Want It Or Not!”

Under these circumstances, it is simply other-worldly that we find ourselves arguing over commonsense protective measures: the penetration of enemy communications and, as indicated by the most recent spate of sensational news stories (which, in fact, are a breathless rehash of five-month-old reporting), the mining of data that implicates no Fourth Amendment interests and invades no one's legitimate privacy rights.

Mr. McCarthy, how does it make you feel knowing that, if your phone service provider is Verizon, AT&T or Bell South, Dubya and the NSA can now tell you how many times your wife, mother, or girlfriend called their OB/GYN to discuss an upcoming appointment, as well as the results of lab work in their most personal of bodily areas? How does it make you feel knowing that Dubya and the NSA can give you details of phone conversations you may have had with your proctologist to discuss the results of your PSA screen for possible cancer? If your son or daughter ran into trouble with the law, how does it make you feel knowing that Dubya and the NSA know about your phone calls to the police or the lawyer representing your family in possible legal action (a scenario you should understand because of your background) as well as phone calls to any counselors discussing confidential information including possible treatment for alcohol or chemical dependency? I don’t know about you, but it makes me DAMN ANGRY!

Oh, and by the way, the reason why this story is a “rehash” is because THE PRESIDENT OF THE UNITED STATES CONTINUES TO IGNORE THE PRIVACY CONCERNS OF THE PEOPLE HE WAS MORE OR LESS ELECTED TO GOVERN AND PERSISTS IN BREAKING THE LAW, EVEN THOUGH THIS STORY INDEED ORIGINALLY BROKE SOME TIME AGO!

Both initiatives have evidently been carried out by the National Security Agency, as authorized by President Bush. For the last six months, the critics' preoccupation has been to excoriate the administration for eavesdropping on Americans without judicial warrants. The charge is ludicrous.

Interesting (and scary, actually) that a prosecutor would call breaking the FISA law (as well as the telecomm provider’s breaking of the law by providing the records) “ludicrous.” If I were looking for legal representation, I wouldn’t consider you if I were brought up on charges of jaywalking.

As Jackson and Holmes trenchantly observed, external threats to the body politic are not judicial matters.

An analysis based on your previous selective quoting in this column.

The primary duty of government is security of the governed, and, for that central purpose, the American people democratically elect political representatives. The only one elected by all of them is the president (and vice president), and his paramount duty is to protect the public.

I guess McCarthy can’t resist talking down to us in our stupidity for not “trusting our leaders” to quote that all-knowing font of judicial guidance and interpretation, Britney Spears.

Regardless of what is said in any statute - such as the much-discussed 1978 Foreign Intelligence Surveillance Act, which prescribes a procedure for conducting electronic surveillance under court supervision - our Constitution commits ultimate decision-making about which potential foreign agents warrant monitoring on the president. And that is the case whether those foreign agents are overseas or, like Mohammed Atta, embedded among us while plotting to kill.

He just invalidated his own argument by pointing out that FISA mandates court supervision.

The critics are repulsed by executive power, particularly when it is wielded by a Republican.

And of course, in the best freeper tradition, partisan politics trumps everything.

The attacks on data-mining, however, betray the hollowness of their purported dedication to our civil liberties. For here, the NSA has been faithful to a goal the privacy lobby has hectored us about for months: national security that respects privacy.

How the hell do you know? Have you SEEN the database? And I love working in the “privacy lobby” code phrase here.

The government apparently purchases phone records from service providers in order to amass a comprehensive data bank. Privacy, however, is rigorously protected: The data base does not include personal identifying information (names, addresses, etc.); just records of calling activity.

Let me explain something to McCarthy about how Internet search engines work (such as Google). You take someone’s phone number, do a search on it and (unless you have blocked the number through the service, something a lot of people don’t know about) presto! You have the person’s name, address, and even a link to a mapping service to find out where they live. So at the very least, the NSA or anyone else can use the database information as a starting point to fill in more details on all of us (and since this is a science to telemarketers, I’m somehow quite sure the NSA has figured this out as well as other tricks).

Besides, the point ultimately isn’t the type of data being collected by Dubya and the NSA (though that’s serious enough). The problem is that THEY CONTINUE TO DO IT IN FULL VIOLATION OF FISA LAW!

That calling activity can tell us what numbers al-Qaeda agents are contacting in our midst, and which numbers those contacts then call. The system is designed to target only those contacts, rather than the rest of us, for investigation.

Again, how the hell do YOU know?

If we had had it in 2001, embedded suicide hijackers might have been identified before 9/11.

Uh oh, someone else is channeling Curt Weldon and this “Able Danger” zaniness.

There was PLENTY of opportunity to identify the 9/11 hijackers in advance, sadly enough. The problem is that the Bush Administration failed to do so. And it wasn’t because they didn’t have the tools to do it. They didn’t have the will, and they also didn’t have the leadership.

The Supreme Court has held for more than a quarter-century that the data the NSA collects do not raise privacy concerns, even if identifying information is included.

True (I believe), when the data is collected legally.

To malign a program that ingeniously collects it without invading privacy is not just disingenuous. It's suicidal.

He leaves us with one final threat with all of the subtlety of a kick in the teeth – typical.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies in Washington.

By the way, this link takes you to more information on the Foundation for the Defense of Democracies. The writeup contains a list that represents a who’s who of right wing loony tunes, as far as yours truly is concerned (a bit surprising to see Frank Lautenberg on the list, though, but not really surprising to see Charlie Schumer, the person who, as DSCC head, is primarily responsible for saddling us with Bob Casey Jr. in the upcoming PA Senatorial election).