Among the things I've missed: this January 28 New York Times op-ed by historian Joseph J. Ellis. called "Finding a Place for 9/11 in American History."
Ellis writes that the debates unfolding today about foreign and domestic policy are taking place in the shadow of the 9/11 attacks, and therefore he wants to address some historical questions about that day.
My first question: where does Sept. 11 rank in the grand sweep of American history as a threat to national security? By my calculations it does not make the top tier of the list, which requires the threat to pose a serious challenge to the survival of the American republic.
Here is my version of the top tier: the War for Independence, where defeat meant no United States of America; the War of 1812, when the national capital was burned to the ground; the Civil War, which threatened the survival of the Union; World War II, which represented a totalitarian threat to democracy and capitalism; the cold war, most specifically the Cuban missile crisis of 1962, which made nuclear annihilation a distinct possibility.
Sept. 11 does not rise to that level of threat because, while it places lives and lifestyles at risk, it does not threaten the survival of the American republic, even though the terrorists would like us to believe so.
My second question is this: What does history tell us about our earlier responses to traumatic events?
My list of precedents for the Patriot Act and government wiretapping of American citizens would include the Alien and Sedition Acts in 1798, which allowed the federal government to close newspapers and deport foreigners during the "quasi-war" with France; the denial of habeas corpus during the Civil War, which permitted the pre-emptive arrest of suspected Southern sympathizers; the Red Scare of 1919, which emboldened the attorney general to round up leftist critics in the wake of the Russian Revolution; the internment of Japanese-Americans during World War II, which was justified on the grounds that their ancestry made them potential threats to national security; the McCarthy scare of the early 1950's, which used cold war anxieties to pursue a witch hunt against putative Communists in government, universities and the film industry.
In retrospect, none of these domestic responses to perceived national security threats looks justifiable. Every history textbook I know describes them as lamentable, excessive, even embarrassing.
Ellis concludes:
[I]t defies reason and experience to make Sept. 11 the defining influence on our foreign and domestic policy. History suggests that we have faced greater challenges and triumphed, and that overreaction is a greater danger than complacency.
I largely agree with the second tier of Ellis's argument. We should always stay vigilant about the danger of sacrificing our national values to national security panic. But the first tier, unfortunately, undercuts his position.
Three of the letters published in today's Times in response to Ellis make the point excellently.
To the Editor:
Our elected officials and the political process could benefit from a healthy discussion of the context and misjudgments in the Alien and Sedition Acts, Japanese-American internment and McCarthy scare tactics.
This is less likely to occur if we are asked to stake our nation and our lives on comparisons between the current terrorist threat and largely nonanalogous events that occurred 50 or more years ago — before the Internet, cellphones, plastic explosives, portable nuclear weapons and the rise of Islamic radicalism.
Nor is a balanced debate stimulated by Joseph J. Ellis's assertion that terrorism places our "lives and lifestyles at risk," but "does not threaten the survival of the American Republic."
This presumes on the future impact of terrorism, an area in which none of us should feel much confidence in our own clairvoyance.
Steven A. Grossman
•
Silver Spring, Md., Jan. 29, 2006
To the Editor:
Joseph J. Ellis contends that 9/11 did not "pose a serious challenge to the survival of the American Republic," though the burning of the capital in the War of 1812 qualifies.
The attack on 9/11 was a watershed event, one that also included plans to destroy our Capitol and its occupants. What would it take for Mr. Ellis to understand the significance of that attack: the detonation of a nuclear weapon?
I will take our response any day over his apparent preference for "complacency."
Ronald K. Sable
Tucson, Jan. 28, 2006The writer was a special assistant to President Ronald Reagan for national security affairs.
•To the Editor:
Joseph J. Ellis's ethnocentric view doesn't take into account that 9/11 is part of a broader string of deadly events in the international arena; unlike the War of Independence and the Civil War, 9/11 is part of a string of bombings around the world ranging from Bali, Northern Africa and Central Asia to London and Madrid.
Sept. 11 does not signify a national threat; it is a globalized one. It was the crowning achievement of Al Qaeda not only against America but also against the free world. Sept. 11's place in American history will be surpassed only in its place in international history.
Elise M. Stefanik
Washington, Jan. 29, 2006
The writer, a senior at Harvard, is an undergraduate fellow at the Foundation for the Defense of Democracies.
No, the 9/11 attacks per se did not endanger the Republic (though it is worth remembering that the terrorists may have been only a few brave people on United Flight 93 away from destroying the Capitol). But as a declaration of war on America, and a signal that international terror had come to our shores, it was surely a turning point. (Another Times letter-writer points to Pearl Harbor as an analogy: the Pearl Harbor attack per se did not imperil America, either.)
Have we on various occasions overreacted to security threats, in the process harming not only innocent people but our freedom as well? Yes. Should we stay complacent about the use of national security threat to justify government power grabs? Absolutely not. But calling for "complacency" about the significance of 9/11 can only play into the hands of those who would use 9/11 to justify infringements on freedom and abuses of power.
32 comments:
I'm not seeing what you see in the responses, which essentially say a) This time, it's different because we have all those technology thingies, and b) Is too!
The analogy to Pearl Harbor is excellent, because it points to the Japanese internments--another overreaction that did nothing for national security.
While terrorism may perhaps pose less of a threat than the five "important" wars did (although I think Germany was less of a threat to us than modern terrorism is), the measures proposed for opposing terrorism are also much weaker than the responses to those earlier wars, too. For all the grousing about the Patriot Act and NSA wiretaps, nothing the Bush Administration has done has even come *close* to the level of egregious human-rights violations inflicted by Adams, Roosevelt, and Lincoln.
Ellis seems to be trying to say that even though we face a smaller threat, we're facing equally-bad threats to our rights and liberties. But really we're facing both a smaller threat AND smaller restrictions of our liberties.
I don't understand why this Administration is so afraid of people who dissent from it. Absolutely nobody wants to be attacked by terrorists, I can fairly well assure you of that.
The whole point of having a free country is that lots of different voices are heard, and that the more differing viewpoints we have to choose from, the better informed we will be.
I don't want to see us attacked ever, ever again. But I do want American citizens to be given the chance to cooperate with the State whenever possible in fighting terror.
None of us wants to get blown up. Why is that so hard for the President (who would -- unlike the rest of us -- get to go hide in some bunker, with the Secret Security anyway) to understand?
This President presupposes that every American who doesn't sign on to his agenda is in league with Al Quaeda, and that the majority of Americans cannot be presumed to support measures that are best for the safety and security of their country.
Ellis seems to be trying to say that even though we face a smaller threat, we're facing equally-bad threats to our rights and liberties
What Ellis seems to be saying is that in the past, faced with greater threats, we've responded with measures that at the time seemed worth the price paid in civil liberties and expansion of governmental power--yet were not. That should be a caution to us when we consider whether anti-terrorist measures are justifiable.
What Ellis seems to be saying is that in the past, faced with greater threats, we've responded with measures that at the time seemed worth the price paid in civil liberties and expansion of governmental power--yet were not.
I think he's going a lot farther than that. He lists the Alien and Sedition Acts, the Japanese-American internment, et al, as "precedents" for the Patriot Act and NSA wiretapping. He isn't warning us about the hypothetical possibility of wrongly and excessively restricting rights in a moment of panic; he's claiming it has already happened, and drawing a direct parallel between the actions of the Bush Administration and those earlier abuses.
If his concern is only that, in previous wars, we've responded with enormous restrictions on US citizens' rights, then that's fine. But since that hasn't happened this time around and doesn't look likely to, I don't see what all the fuss is about.
mythago, I think those responses do point out specific reasons the threat may be as great. I don't think we can just discount the fact that today, one person with a pocket-sized weapon of one kind of another can do an untold amount of damage.
Rev, interesting point about the anti-terrorism measures being weaker/less restrictive.
What Ellis seems to be saying is that in the past, faced with greater threats, we've responded with measures that at the time seemed worth the price paid in civil liberties and expansion of governmental power--yet were not. That should be a caution to us when we consider whether anti-terrorist measures are justifiable.
And as I said, I agree with that part of his argument. I just think that Ellis does himself no favor by downplaying the threat.
I don't think we can just discount the fact that today, one person with a pocket-sized weapon of one kind of another can do an untold amount of damage.
I don't see it as "discounting" that threat to refuse to use it as a blanket justification for whatever restriction on civil liberties might catch terrorists.
Is this just because Ellis is a liberal? I'm just not seeing the Pollyanna attitude in his essay.
But I'm not disagreeing with Ellis's point about the danger of overreacting. As I said, I think he undercuts that point by appearing to dismiss the significance of 9/11 as a threat to U.S. security.
Ellis' list of what he terms "top tier" events is interesting. Looks almost like it fits a mythic pattern. First we have the separation, played out in two phases. Then we have the internal conflict. Then the conflicts with forces outside our borders.
As others have suggested, I think that the war on terror (for lack of a better term) ranks up there with WWII and the Cold War. Perhaps not on the same scale -- but it is the challenge our nation and the world face today.
We're very early into the WOT. Think about how the Cold War looked in 1958. That's about where we are with the WOT -- ten years in, just getting a sense of what we're up against.
The Cold War lasted a hell of a lot longer than WWII, and I'm betting that the war on terror lasts longer than the Cold War.
From my armchair, I think it was easier to measure progress in WWII than in the Cold War. And the end dates were easy to identify in WWII. The Cold War ended, but you can't point to a day that it ended. I have a feeling that we may never really know when the WOT is over. If ever we get to the point that we consider it over, well, I think we'll have trouble pointing to the decade it ended.
Identifying our enemies was pretty easy during WWII. Same could be said about the Cold War, but during the Cold War, identifying our allies became a bit more problematic. And in this current conflict, well, I'm having trouble keeping our allies and our enemies straight.
In one century, we saw an interesting shift in war -- from the clash of armies to Mutually Assured Destruction to asymetrical warfare. In many instances, the weapons that worked in one conflict were rendered obsolete in the next. (Okay, I'm stretching a bit, but I'm thinking about how aircraft carriers replaced battleships, how nuclear subs replaced invading armies, and how nuclear weapons are useless when fighting an asymetrical war.)
While I'm playing armchair historian, let me go further out on a limb. By the way, I'm counting on you folks to point out the errors in my thinking.
It goes without saying that WWII was won by the military. Sure, there were economic forces at work that helped the military, but it was a military conquest. The Cold War -- that was different. Certainly we would not have won it without the military successes (I'm thinking of the arms race more than the wars by proxy), but I don't think it can be termed a military conquest. It was, in the end, something of an economic victory. And I think that victory in the WOT will be even more complex.
The President had a choice right after he stood on the mountain of rubble that was the World Trade Center, do I rally the nation against terrorism by calling for sacrifice such as energy independence (2001 not 2006) or does he use the event as an excuse to win elections and impose a radical doctrine that insists on ending "tyranny" everywhere on american taxpayer expense. He chose the later. He continues to use this horrific day as a weapon to those who don't see things in black and white, knowing the wound is fresh enough for it to work.
9/11 can’t be factually described as "a signal that international terror had come to our shores." That signal
had already been sent nearly a decade earlier with the initial bombing of the twin towers. The foiling of the
milleneum bomb plot occured prior to 9/11 as well. Have these events dropped down the memory hole?
The significance of 9/11 isn't that we suddenly discovered the threat of international terrorism. Rather, its
significance lies in the revelation that our political leadership had grossly underestimated the imminence of that threat.
The comment on Pearl Harbor strikes me as way off the mark. Pearl Harbor was a not only a massive military strike by a National power against the territory of the United States, it was also an opening strategic
blow preparatory to the conquest of U.S. possessions throughout the Pacific. Further, the enemy power in
question was in close alliance with two other major military powers that were already engaged in wars of
conquest.
Whether or not the U.S. Republic could have survived in a world dominated by totalitarian despotisms is a question that remains, very much open. That such a global order would have constituted a threat to the survival of the republic is, I think, beyond dispute.
It is difficult to imagine a realistic scenario wherein international terrorism could directly threaten the existence of the U.S. Does the potential for catastrophic assaults exist? Yes. That potential has existed for decades and, short of a global police state or general collapse, will exist for decades to come. (The fear of a "suit case
nuke" dates back to at least 1949.)
The real issue here isn't one of "vigilance" vs complacency but of proportionality. Has our response been appropriate to the level of threat posed?
Clearly Ellis thinks not. More, he believes that a disproportionate response increases rather than decreases our level of jeopardy. To prove his point he contrasts the current threat to previous crisis from our history. His message being, I think, that we should judge whether 9/11 ranks below, even with, or above these earlier challenges and shape our policy accordingly.
What is missing from the letters is any affirmative counter argument. The writers disagree with the article but they don't illustrate why Ellis' suggestion is wrong. The closest that any of them come to this is the writer who lists the various technological advances that are currently in play. Of course, these technologies would exist even if 9/11 had never occured.
If this sounds to you as though I'm suggesting that international terrorism isn’t a serious threat, I'm not. Nothing so peurile. Any organization with the means, ability and demonstrated will to visit mass destruction on civilian populations is a clear and present danger that ought to be squelched. I am saying that the sort of dispassionate assessment that Ellis suggests was not made in the aftermath of 9/11 and has not been made to this day.
Instead, we’ve had hysterical doomsday scenarios, thinly veiled appeals to religious bigotry and vilification of all dissenting viewpoints coupled with a gross expansion the police powers and
militarism of the state under a doctrine of unlimited executive power.
As a result, we find ourselves mired in a foreign occupation with dim prospects for success in which we are hemorhaging blood and treasure we can ill afford. All based, as far as I can see, on an erstwhile Trotskyite fantasy of carrying “democratic” revolutions abroad on the points of bayonets. I’d say we are long overdue for the kind of serious rethink that Ellis proposes.
I do agree that Ellis’ construction vis a vis “complacency” is both unfortunate and clumsy.
Revenant,
the measures proposed for opposing terrorism are also much weaker than the responses to those earlier wars, too. For all the grousing about the Patriot Act and NSA wiretaps, nothing the Bush Administration has done has even come *close* to the level of egregious human-rights violations inflicted by Adams, Roosevelt, and Lincoln.
Don't be too sure. Did the aforementioned try to establish in law and/or precedent that they could ignore international conventions to which the U.S. was a partner? Or that torture was an acceptable and regular part of our intelligence practice? Or that explicit statutory commands could be secretly ignored, at will, under an all-encompassing plenary executive power? Or that U.S. citizens could be declared "enemy combatants" and held indefinitely, incommunicado, without legal representation, at the eternal whim of the executive?
I'll grant that not as many people, so far, have been directly affected by Bush's encroachments on civil liberties as were directly affected by FDR, and probably by Lincoln or Adams as well. But Bush has put in place policies with no obvious boundaries - policies which are just as invasive of civil liberties, and sometimes more so, that those advocated by past presidents, and which he claims the right to use for the foreseeable future, unlike Lincoln or FDR.
"...to which the U.S. was a party", that should be.
Did the aforementioned try to establish in law and/or precedent that they could ignore international conventions to which the U.S. was a partner?
Yes. For example, we repeatedly violated international agreements on the conduct of warfare during WW2 -- the nuking of Hiroshima, for example, was undeniably a war crime under international law. Truman didn't ask Congress for permission before violating those international agreements. Historically, Congress and the Executive have always been at odds over how the President's CiC and foreign policy powers interact with Congress' treaty power.
Or that torture was an acceptable and regular part of our intelligence practice?
Torture was regularly used by US law enforcement until the latter half of the 20th century. It was regularly used by the intelligence services until the latter part of the cold war. Our intelligence personnel were trained in torture techniques. And, of course, we famously ran torture training centers during the Cold War.
Or that explicit statutory commands could be secretly ignored, at will, under an all-encompassing plenary executive power?
Again, something that both Lincoln and Roosevelt were guilty of on a far larger scale. Plus, of course, every President from Truman to Reagan violated Congressional laws in the conduct of the Cold War.
Or that U.S. citizens could be declared "enemy combatants" and held indefinitely, incommunicado, without legal representation, at the eternal whim of the executive?
Yes, Lincoln's denial of the right of habeas corpus and Roosevelt's internment of the Japanese Americans are precedents in that area -- and were carried out on a vastly larger scale, of course.
Bush has put in place policies with no obvious boundaries
Bush has reasserted a level of executive power that is still far less than that which Roosevelt and the earlier Cold War presidents possessed, and in many ways less than that which Lincoln possessed as well.
During WW2, for example, it would have been considered entirely normal for the FBI to wiretap anyone it felt like without asking the courts for permission, amass files detailing every aspect of their personal lives, and then toss them into a cell and question them for 72 hours straight without allowing sleep or bathroom breaks, all the while slapping them around, until they broke and confessed. What we today consider egregious violations of prisoners' rights was the normal way of doing things until a half-century ago. Bush's actions are far from unprecedented.
and which he claims the right to use for the foreseeable future, unlike Lincoln or FDR.
Um, no, he claims the right to use those powers through 2008 or until the war is ended, whichever comes first. It is disingenuous to claim that Bush claims the powers "for the forseeable future" and they did not -- when they first claimed the powers it was indeed "for the forseeable future", because in the early days of the Civil War and WW2 there was no end in sight.
Um, no, he claims the right to use those powers through 2008 or until the war is ended, whichever comes first. It is disingenuous to claim that Bush claims the powers "for the forseeable future" and they did not -- when they first claimed the powers it was indeed "for the forseeable future", because in the early days of the Civil War and WW2 there was no end in sight.
Thoroughly disingenous, in as much as Bush is not claiming such powers for himself but for the office he holds. Since the WOT as defined has no discernable endpoint nor metrics for establishing such, as a practical matter he is establishing these powers for whomever occupies that office for the forseeable future.
I will truly never understand the conservative mindset: "Clinton/Lincoln/Roosevelt/Adams did horrible, illegal things, so it's okay if Bush does them, too." Is that supposed to be a serious argument, because I see it all over Blogistan.
I will truly never understand the conservative mindset: "Clinton/Lincoln/Roosevelt/Adams did horrible, illegal things, so it's okay if Bush does them, too."
Which conservatives have that mindset? The observation that Bush's predecessors did bad things isn't offered to justify Bush doing them, but as a refutation of the "OMFG BUSHITLER IS DOING STUFF THATS NEVER BEEN DONE BEFORE!!!" mindset so frequently displayed in this and other forums. The reality is that Bush's actions are neither shocking nor unprecedented.
Whether they are illegal and "horrible" is an entirely different question. Most conservatives and "hawks" don't feel that, at least where the war is concerned, Bush has done anything that horrible.
Bush is not claiming such powers for himself but for the office he holds.
He's claiming both -- some of the powers he claims, he claims are inherent to the office, such as the ability to order wiretaps without court authority for national security purposes. Of course, every one of his predecessors claimed that too. Other powers he claims where authorized by the AUMF of 9/2001; those powers will expire with the war.
If "claiming powers for the forseeable future" refers to claiming powers inherent in the office that aren't mentioned in the Constitution then Bush is only the latest of dozens of Presidents to be guilty of it. If it refers to claiming power due to a war whose end isn't at some indeterminate point in the future then Bush is doing nothing that every previous wartime President didn't do as well. In either case, the claim that Bush is claiming power "for the forseeable future" in a way that his predecssors didn't is simply false.
In either case, the claim that Bush is claiming power "for the forseeable future" in a way that his predecssors didn't is simply false.
Only if you can show an objective standard by which to determine when the WOT will end. The previous conflicts had such a metric, the formal surrender of the hostile power. The WOT is not a war on a single enemy. It is a war on a phenomenon. It cannot end until the phenomenon ends. Care to wager when that is likely to occur?
I don't think we can just discount the fact that today, one person with a pocket-sized weapon of one kind of another can do an untold amount of damage.
Indeed, but is it really a risk to the continued existance of our country? Not even close. There is no way those guys can put this country under, which I think was the Ellis's point. At least it was the point I argued early and often. We need a bit of perspective here. There is a difference between terrible and damage and a knock-out punch.
Karen
Only if you can show an objective standard by which to determine when the WOT will end.
When Congress repeals the AUMF or otherwise passes a law declaring an end to the the war.
The WOT is not a war on a single enemy. It is a war on a phenomenon.
The war that has actually been authorized by Congress is against Al Qaeda and people who shelter or support it, and is therefore a war against a specific enemy. The larger "war on terrorism" exists only as rhetoric at this point. Bush hasn't been authorized to stamp out the Irish Republican Army.
Indeed, but is it really a risk to the continued existance of our country? Not even close. There is no way those guys can put this country under, which I think was the Ellis's point
None of the Axis powers had the capacity to put the United States under either, though. And the Soviets only had the power to do it if they were willing to destroy themselves and the entire rest of the planet in the process, which of course they were not. The United States hasn't faced any real threat to our survival as a nation since the end of the Civil War.
My list of precedents for the Patriot Act and government wiretapping of American citizens would include the Alien and Sedition Acts in 1798, which allowed the federal government to close newspapers and deport foreigners during the "quasi-war" with France; the denial of habeas corpus during the Civil War, which permitted the pre-emptive arrest of suspected Southern sympathizers; the Red Scare of 1919, which emboldened the attorney general to round up leftist critics in the wake of the Russian Revolution; the internment of Japanese-Americans during World War II, which was justified on the grounds that their ancestry made them potential threats to national security; the McCarthy scare of the early 1950's, which used cold war anxieties to pursue a witch hunt against putative Communists in government, universities and the film industry.
This is a ludicrous set of comparisons.
After Watergate when presidential power was at one of its lowest ebbs, the Congress passed a series of statutes limiting and sometimes handcuffing previously exercised executive law enforcement and foreign intelligence collecting powers.
The Patriot Act reversed many of these restrictions.
In the case of FISA, the Bush Administration simply ignored what is most likely an unconstitutional infringement of the President's constitutional power to collect foreign intelligence.
The net effect of these changes is to simply return us to the status quo which existed prior to Watergate.
Revenant,
You make some fine points, but I think it's far worse, and more dangerous, to violate a principle after it has been firmly enshrined in law, than to have violated it decades before Congress or the Supreme Court said anything about it. Bush is declaring himself to be above the law in some ways that his predecessors did not, back when it wasn't clear what the law was in some of these areas.
also,
1. some of the powers he claims, he claims are inherent to the office, such as the ability to order wiretaps without court authority for national security purposes. Of course, every one of his predecessors claimed that too.
That's not true - after FISA was passed, presidents did not claim this authority. Clinton's Justice department may have suggested that he ought to have this authority, but they did not act upon it, openly claim it, or secretly claim it while publicly lying that they were not doing so ("every time we wiretap, it's been with a warrrant" Bush paraphrase)
2. The war that has actually been authorized by Congress is against Al Qaeda and people who shelter or support it, and is therefore a war against a specific enemy. The larger "war on terrorism" exists only as rhetoric at this point. Bush hasn't been authorized to stamp out the Irish Republican Army.
I'm confident Bush would claim that he has, indeed, been so authorized - his reading of the AUMF is that it authorizes him to do whatever he wants.
Bart,
In the case of FISA, the Bush Administration simply ignored what is most likely an unconstitutional infringement of the President's constitutional power to collect foreign intelligence.
That's not true - are you a constitutional lawyer? An argument, not a wholly laughable one, has been advanced along the lines you suggest, but it is not "most likely" - as most experts have concluded, it is highly unlikely. Just because Laurence Silberman is an autocrat who once authored a single opinion implying that this was the case, does not make it the case. Silberman is almost certainly wrong, and FISA is almost certainly constitutional. Again, there's an argument on the other side, but it's a strained and weak one.
Revenant,
What Clinton actually claimed was the authority to bodily seize and search terror suspects, something FISA does not explicitly address. Secret wiretapping without a warrant, by contrast, is explicitly addressed, and made illegal, and Clinton did not do it, or formally assert that he could do it.
I basically agree with Ellis regarding where 9/11 and the "War on Terror" rank in the grand sweep of American history. Just as one key example, Pearl Harbor was a much more devastating attack against our nation with far more wide ranging repercussions than the 9/11 attacks.
But as for bringing up the Alien and Sedition Acts of 1798... (*SMIRK*)
Dredging up the Civil War brings forth the same smirk - from me at least. To those who think THESE are the sort of arguments that will "drive the American people away from supporting President Bush," dream on.
The Red Scare of 1919? The internment of Japanese-Americans during World War II? McCarthyism? Sorry... Americans just don't relate the Patriot Act and Bush's firm beliefs concerning Executive Powers with a threat to our way of life. Just the opposite. "Toughness" against "terrorism" is a key Bush strength, not a political weakness.
Most American DON'T think Bush is "over-reacting." If anything, given a choice between trusting the "left" or the "right" on foreign policy and internal security, it's pretty well established where the American electorate places their faith. The chink in Bush's armor isn't "intend," it's the "competence" issue.
I don't know if there's any one "9/11 mentality." No... actually... take that back. There is no "one" 9/11 Mentality. We all draw different lessons from the event and place different emphasis on what came before and what followed. As for policy prescriptions... I tend to look upon them on a case by case basis. Therefore, while interesting, Ellis' op-ed doesn't really invite much "for" or "against" commentary.
The Navigator said...
Bart,
In the case of FISA, the Bush Administration simply ignored what is most likely an unconstitutional infringement of the President's constitutional power to collect foreign intelligence.
That's not true - are you a constitutional lawyer?
I am a lawyer and I have argued multiple constitutional law questions. I don't claim to be a scholar in the field. However, this is a very easy case...
An argument, not a wholly laughable one, has been advanced along the lines you suggest, but it is not "most likely" - as most experts have concluded, it is highly unlikely.
The only "experts" who count in this issue are the three federal circuit courts of appeal and the FISA review court who have unanimously held that the President has the constitutional authority to gather intelligence without a warrant on foreign groups and their agents in the United States. There is no contrary case law.
Here is the pertinent citations from Justice's latest white paper...
The courts uniformly have approved this longstanding Executive Branch practice.
Indeed, every federal appellate court to rule on the question has concluded that, even in
peacetime, the President has inherent constitutional authority, consistent with the Fourth
Amendment, to conduct searches for foreign intelligence purposes without securing a judicial
warrant. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) (“[A]ll
the other courts to have decided the issue [have] held that the President did have inherent
authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take
for granted that the President does have that authority and, assuming that is so, FISA could not
encroach on the President’s constitutional power.”) (emphasis added); accord, e.g., United
States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. Butenko, 494 F.2d
593 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
FISA is almost certainly constitutional. Again, there's an argument on the other side, but it's a strained and weak one.
To the extent that FISA applies to criminal evidence collection for civilian criminal trials, FISA is constitutional and very useful because it is private.
However, Congress cannot usurp the President's constitutional power to collect intelligence by passing FISA any more than the President can usurp Congress' power of the purse by enacting spending bills by executive order.
You make some fine points, but I think it's far worse, and more dangerous, to violate a principle after it has been firmly enshrined in law, than to have violated it decades before Congress or the Supreme Court said anything about it.
I'm not sure which principle you're referring to, there. Also, have you considered that the legal principle in question may have violated even older principle that preceeded it? Most of the rulings Bush stands accused of violating are younger than he is.
The way you phrased that statement also makes me suspect that you're falling victim to the modern mistake of believing that some branches of government are superior to others. Just because both Congress and the Courts say "no, you can't do that" doesn't mean that the Executive Branch is in the wrong if it does it anyway. For example, if Congress passed a law saying "the air force must destroy the nuclear plants in Iran" and the Supreme Court said "we agree", the President would nevertheless be entirely within his rights to completely ignore them -- he, not Congress or the Courts, is the Commander in Chief. So just because, between Roosevelt's time and Bush's time, Congress and the Courts have decided the Executive deserves less power, doesn't mean Bush is doing anything shocking by disagreeing with them.
But even if I were to accept that Bush is violating long-established legal principles, you're still wrong in saying that his predecessors didn't. Lincoln violated habeas corpus, which is about as long-standing a legal principle as we have. Roosevelt violated all manner of long-standing legal principles with the relocation and internment of the Japanese-Americans.
That's not true - after FISA was passed, presidents did not claim this authority.
You're mistaken. The Clinton Justice department asserted that the President had inherent authority to conduct warrantless searches for national security purposes. Clinton doesn't appear to have ever used this power, but, like Reagan and the Bushes, he did claim to have it.
I'm confident Bush would claim that he has, indeed, been so authorized - his reading of the AUMF is that it authorizes him to do whatever he wants.
The fact that he sought separate authorization for the war with Iraq demonstrates that you're wrong on that point. Bush has not acted as if he believed the AUMF gave him blanket authority to do anything he wants to do.
What Clinton actually claimed was the authority to bodily seize and search terror suspects, something FISA does not explicitly address.
Because it had been illegal under the 4th amendment for over two hundred years. :)
Fortunately, the leaders of any state know that it would be suicidal to send a bomb our way.
That is incorrect. The leaders of any state know that it would be suicidal to send a bomb our way in a manner traceable to them. That's precisely why terrorists are a likely vector for nuclear weapons. Once Iran gets the bomb there will be *two* nuclear powers with strong terrorists ties, plus of course North Korea (who will sell to anybody), plus Russia (which does a lousy job of keeping tabs on its WMDs). If a nuke goes off in New York City, who exactly are we supposed to retaliate against?
What might Iran, North Korea, Pakistan, seek to gain that would justify the risk that if they sent a bomb our way we'd trace it to them (and obliterate say Tehran, Mashhad, and Tabriz)?
In North Korea's case, money. In Pakistan and Iran's case, harm to an enemy of Islam. Also remember that Pakistan has multiple factions at work within it. If, say, a faction of the Pakistani military gave a nuke to terrorists against the wishes of the Pakistani government, would we really kill millions of Pakistani civilians in retaliation? Maybe, maybe not.
You're also assuming that the people in charge of these nations are rational. That wasn't true for Iraq, isn't true for North Korea, isn't true for some of the power blocs in Pakistan, and quite possibly isn't true for Iran either.
Finally, you're assuming that the person who makes the decision to transfer the nukes will be sitting in the area we retaliate against. A person with zero respect for human life -- and the rulers of Iran and North Korea obviously qualify as such -- might consider the death of hundreds of thousands of countrymen a small price to pay for the deaths of hundreds of thousands of Americans (and trillions of dollars of damage to our economy).
What manner of sending a bomb our way is not traceable?
Give it to terrorists without telling them what country you represent. Or claim to be from a country you don't like much -- if you're working for the Iranian government, for example, claim to be an agent of the relatively America-friendly Pakistan.
Anyway, so far as state-sponsored attacks go, what should we do about them that we're not already doing?
Since "what we're already doing" includes waging a war on Islamic terrorism I'd say "not much". I imagine we (or Israel) will be bombing Iran at some point in the near future, though.
Also keep in mind that the rest of the world (and much of the American public) won't want to accept "our experts are 95% sure the nuke originated in Iran" as sufficient evidence to justify incinerating millions of innocent Iranian civilians.
Finally, you're assuming the leaders of these nations are intelligent and rational. The ruler of North Korea is neither while the rulers of Iran are at best one of the two. Saddam Hussein provides a good case study of how the ruler of a nation can repeatedly choose the self-destructive option over the rational one.
So harming an enemy of Islam, or a sum of money, might, in the estimation of the rulers of Iran or North Korea, justify the destruction of their societies as ongoing enterprises.
Why does "sacrificing your nation to harm an enemy of Islam" sound so strange to you, given that that's exactly what the Taliban did? Besides, we're talking about accepting a *risk* of losing the nation in exchange for those things. North Korea could sell weapons and be reasonably certain we'd never be able to prove they did it.
(But, we're agreed, no policy implications flow from this possibility.)
Um, no, we agree that no *new* policy implications flow from this. Our current policy is to eradicate Islamic terrorism and to replace the governments of the aforementioned rogue states with friendly ones. These policies exist in part because of the threats we're discussing here.
It seems to me that any ruler or clique of rulers with sufficient savvy and prudence to stay in power for decades is highly unlikely to weigh gains and costs as is suggested.
With all due respect, both past history and the current world are filled with examples of dictators who caused their own and/or their nations' destruction through actions which, in hindsight, seem obviously insane and suicidal, with Hitler, Napoleon, and Hussein being good examples of this.
Now, perhaps you're willing to take it on faith that, all evidence to the contrary, North Korea and Iran are run by sane and rational people. I'm not. Even if *you* believe that they'd never get away with an attack on us, they probably don't share your pessimism. If Iran was run by people with good judgement they wouldn't be openly flaunting their plans to develop nukes -- because it is very, very obvious that we're going to come down on them like the wrath of God for trying it.
Saddam, I think, had pretty decent grip on reality, at least till the last years of career
Not even. He attacked a larger, richer, more powerful country (Iran) that he had little chance of beating and crippled both countries in the process. Then he invaded Kuwait, which no rational person could have thought we'd let him get away with -- and, even if one assumes that he had good reason to initially believe he could get away with it, he *stayed* there even once it was obvious that we were going to crush him. Then he proceeded to spend ten years pretending to have illegal WMDs he apparently didn't actually have. Then he decided to praise the 9/11 attacks. Then he decided that the UN would stop us from taking over Iraq. All of these were glaringly stupid miscalculations on his part.
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