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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, September 29, 2007

Human Rights and Limited Powers

And Also: Someone cited a joke about the difference between a Shea Stadium and Yankee Stadium hot dog ... one can be eaten in October. Looked like it would be put in storage after last year. Well ... Yesterday's game took forever to finish, even after the scoring stopped (mid-game). Symbolized the extended collapse that will last at least until today. Again, if it happens, it took a lot of effort, even with the Phillies upswing. Losing seven straight vs Phillies and five of six vs the Nats, etc. Amazing Mets, indeed ... amazingly bad. Group effort, even if all the parts weren't bad at once in any one game.

[I link to Balkinization below. There are several interesting topics over there this week, including on such diverse topics as Blackwater, Justice Kennedy's jurisprudence and the McCulloch decision/connections to modern times. BTW, John Yoo in the 1990s thought McCulloch was a "tragedy" since it gave Congress too much power. He also thought Clinton had too much as well ... we later found out that the "war" was started during his presidency, so maybe Yoo thinks differently about him now.]

Spencer Ackerman's skill and clout is shown here via an official reply to his reporting on a intel gathering controversy. Since after awhile one loses track of what is going on here -- seriously, it is easier (in a way) sometimes when there are so many things wrong with what is going on when the specifics are pretty complicated -- I truly appreciate such things. I also appreciate the comments, since they tend to clarify and emphasize certain points. Take the reply by "Mary," who underlines a point that too many appear to elide over:
Absolutely there should be process that applies to what communications the Executive Branch is snarfing up and what is done or not done with that information. The Constitution never says the Executive Branch has unfettered ability to engage in foreign to foreign searches and seizures. Absolutely the Exec Branch should have legal constraints on what is being done with foreign intercepts.

They carve outs for foreign surveillance have been for national security types of surveillance. There has never been blanket authority in the Executive to engage in non-national security, slap and tickle surveillance of foreigners. And there is certainly no reason for the NSA apparatus to be used for foreign surveillance that isn't involving national security interests.

So yeah - before someone, for example, engages in intercepts of foreign corporate information and uses that to make profits or provide unfair competition, and before there is non-supervised, warrantless trawling for non-security purposes - yes, there should be process that applies.

So here is seems not so much that your source is arguing that technology has changed and FISA needs to be changed to address the changing technology - - but rather that the analysis of Executive Branch power should be expanded to include engaging in foreign surveillance of all foreigners, not agents of foreign powers (not al-Qaeda calling) and for all reasons or no reason, on any whim - all of which will be subject to any use anyone chooses to make of it with no constraints, checks or balances.

Duh. Yeah. There should be process preventing that.

Currently, there are various things that threaten the civil liberties of American citizens in the fight against (h/t BTC News) the War on Terra (TM). Baseline problem. But, the greatest problem -- in terms of numbers -- is the threat to the freedoms of non-citizens. Thus, David Cole has written a lot about a sort of "international" Constitution, one in which "persons" are protected -- see, the Due Process Clause.

I am reading Sen. Dodd's book* (mostly his father's letters from Nuremburg -- which he spells N├╝rnberg, the German way -- with some prefatory remarks) and there is a simple assumption made that Germans ... who murdered millions ... warrant some due process of law. Some, see Sen. Taft in Profiles in Courage ... even were quite upset that they did not get enough. [My rough belief is that international law at the time warranted at least some of the prosecutions as did pragmatic reasons ... given the alternative, reasonably speaking, I think the best shot of justice was furthered by the process.] Ditto, in some situations, did a few of the justices [dissent], including the one for whom John Paul Stevens (WWII vet) clerked.

WWII brought home the fact that we need a system of human rights, a basic acceptance that people everywhere deserve and in some fashion have basic rights of humanity. As with our own Declaration of Independence, such basics are only honored in a mixed fashion. My reading of accounts and comments respecting treatment of those held since 2001 in the War on Terra (TM) sadly suggests the fact. There appears to a basic confusion -- even among those who should know better -- that there is some class of people who simply do not have rights, except as a matter of executive and legislative discretion. The fact that some might not have the rights of POWs simply does not mean the others lack rights.

See, Hamdan. See, basic rights of humanity and "persons." And, per Mary, the basic dangers of unlimited discretion on governmental power. Should we allow the government -- or per some accounts, contractors funded by them -- enslave people outside U.S. territory? The question sadly appears not to be simply rhetorical. There are different levels of protections -- citizenship means something, etc., but there are also baseline protections, and baseline pragmatic reasons for them to boot. The focus on "spying on Americans" etc. should not erase the fact that there is more to it than that. The "us against the world" mentality (I am still seeing digs at the French ... some people don't grow up) is both dangerous and reprehensible. As is the idea that trust our government with total power ... yes, even when it is inflicted against non-citizens ... is a safe bet.

Or, apropos to a recent debate where Dems were asked their favorite biblical passage -- Art. VI be damned, apparently a suitable question -- one of mine would be Paul's line that we are all one in Christ, slave and free etc. The "in Christ" bit is limiting, but the principle holds -- on some level, we are connected, and a sacred community that warrants honor and respect. The Christian path, surely the Protestant one that guided many in this country through the years, is one of choosing one's faith. Well, we chose to be part of a nation that honors the rights of "persons" and the limitations of the government at all. So, we chose the responsibility.

One would not think so at times.


* Sen. Dodd is someone I might seriously think of supporting in other circumstances, especially given his theme of civil liberties and excesses of executive power. But, other than the fact he has no shot, we need someone more of an outsider and more outwardly passionately connecting to the voters. I reckon his insider status led him to make a few questionable moves in the Senate as well, but that is not really my ultimate concern here.

As to the book, it's an interesting insider account -- what a possibility -- but does get tedious after awhile. It's a series of letters to his wife ... constant refrain is that he really really loves and misses her, and he needs more letters from her (she had five young kids to care for at the time and some of the letters were delayed). Some complaints about how the others on the case are doing a shoddy job.

Not really a deep discussion of the case itself, but overall, recommended to at least skim. The various references to "Christopher" and "Chris" -- the senator was a toddler at the time -- does come off as pretty cute.