…we have never—at least until Hamdan—had a one-sided treaty with an international terrorist organization, whereby jihadists get to keep killing Americans and we guarantee them American rights.
Former New York federal prosecutor Andrew C. McCarthy examines the Hamdan decision.
From the Founding right up until the still-quaking bombshell of Hamdan v. Rumsfeld, issued at the end of the Supreme Court’s term in late June, the primary imperative of national government was to protect the security of the governed from hostile outsiders. The Framers, however, had an ingenious gloss on this venerable first principle. In the great American experiment in republican democracy, this power of self-preservation—what Justice Felix Frankfurter, in another era of grave peril, called “the most pervasive aspect of sovereignty”—would repose only in those political actors directly accountable to the people whose lives hung in the balance.
The arrangement made exquisite sense. On the one hand, if the public’s representatives were insufficiently attentive to national security, those with the most at stake could vote them out of office. On the other hand, if public officials failed to give due deference to the civil rights that guarantee our freedom, Americans, lovers of liberty, could show them the door. The epicenter of this dynamic would be the President of the United States, the only public official (besides the Vice President) elected by, and accountable to, all of the people.
Judges? They would have no role in national security. They, after all, are politically unaccountable. This is neither to disparage them nor suggest they are irresponsible, much less unpatriotic. They are unaccountable to the people because they are accountable only to the law. And not some universal law. They are custodians of the people’s laws, those governing the domestic body politic.
Those laws quite intentionally handcuff government for the sake of promoting freedom. They thus have no place in the international arena, a state of nature in which nations, insurgent militias, and, now, transnational terrorist networks all claim the right to use force. “The circumstances that endanger the safety of nations are infinite,” Hamilton observed in The Federalist (No. 23). “[F]or this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.”
In stark contrast, within the domestic realm, government would have a comparative monopoly on the legitimate use of force. Security would not be as pressing a concern. Within this fortress, judicial courts could guarantee Americans freedom from oppressive action by their government. They could preserve the rule of law indispensable for the American body politic to flourish. It was for those reasons—in abeyance of mortal danger—that the nation could afford to insulate them from popular passions, whims, and safety concerns.
However patently central it is to a good society, the judicial function remains largely irrelevant to the international order. For all the blather about our “international community,” it is an ersatz community, lying beyond our laws and democratic choices. Unlike dreamy modern internationalists, the Framers well understood that broad swaths of this “community”—enemies of the United States—would always pose threats, some existential, to the body politic.
Such threats are not legal problems. They do not principally involve Americans being deprived of their legal entitlements by their government—the cases and controversies judicial power was designed to resolve. They are clashes between the American national community and the outside world. They are the stuff of political power—diplomacy, force, and all the intermediate measures wielded by the political branches. The judicial power has no place because American courts are part and parcel of the American national community; they do not exist outside or above it.
In our system, rising to external threats from alien forces with no claim on the protections of American law would be the domain of the political branches. In times of crisis and war, it would be uniquely the province of an energetic executive. All the immense might the United States could muster for its self-preservation would be concentrated in one set of hands, able to act swiftly and decisively to quell enemies endlessly variant in size, strength, and method of attack.
I’ve read several analyses of the constitutional issues — McCarthy’s is the clearest. Comments welcome from constitutional scholars.
Technorati Tags: Hamdan
I can’t think of anything printable to say about this disgrace:
Scott Savage, who serves as a reference librarian for the university, suggested four best-selling conservative books for freshman reading in his role as a member of OSU Mansfield’s First Year Reading Experience Committee. The four books he suggested were The Marketing of Evil by David Kupelian, The Professors by David Horowitz, Eurabia: The Euro-Arab Axis by Bat Ye’or, and It Takes a Family by Senator Rick Santorum. Savage made the recommendations after other committee members had suggested a series of books with a left-wing perspective, by authors such as Jimmy Carter and Maria Shriver.
Savage was put under “investigation” by OSU’s Office of Human Resources after three professors filed a complaint of discrimination and harassment against him, saying that the book suggestions made them feel “unsafe.” The complaint came after the OSU Mansfield faculty voted without dissent to file charges against Savage. The faculty later voted to allow the individual professors to file charges.
TigerHawk:
A state agency is investigating a librarian for having expressed an opinion. It is hard to imagine a more four-square violation of the First Amendment. It will be very interesting to see whether the American Library Association, which purports to care a lot about “intellectual freedom” (”the right of every individual to both seek and receive information from all points of view without restriction”), will have anything to say about this outrage. Or is it that the First Amendment ceases to exist if some person in the vicinity of the speech can claim to be offended?
John Hinderaker at Powerline details the practical problems.
. . .We need both the rule of law and the power to escape it–and that twofold need is just what the Constitution provides for. . .
. . .Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply. . .
Question: from what source comes the idea that only Congress should determine what is OK? I’ve concluded that the New York Times et al must hold that view - the view that the U.S. Constitution is wrong and needs to be amended to make the Executive subordinate to the Congress. It is a “comforting” idea - just like a democracy should be, right? None of that king-like stuff.
Harvard prof. Harvey Mansfield (Political philosophy; American constitutionalism) wrote this illuminating piece for The Weekly Standard. The essay is an easy to follow constitutional brief on the logic of a strong, independent executive.
EMERGENCY POWER FOR SUCH UNDERHANDED activities as spying makes Americans uncomfortable and upset. Even those who do not suffer from squeamish distaste for self-defense, and do not mind getting tough when necessary, feel uneasy. A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force.
This home truth gets little recognition from critics of the Bush administration’s surveillance activities in the war on terror. Some of its defenders, too, seem unaware of the full extent to which the Constitution addresses the problems we face today and how useful and relevant its principles prove to be.
One can begin from the fact that the American Constitution made the first republic with a strong executive. A strong executive is one that is not confined to executing the laws but has extra-legal powers such as commanding the military, making treaties (and carrying on foreign policy), and pardoning the convicted, not to mention a veto of legislation. To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger.
Thus it is wrong to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters. This is simplistic, small-r republican thinking of the kind that our Constitution surpassed when it constructed a strong executive. The Constitution took seriously a difficulty in the rule of law that the republican tradition before 1787 had slighted. The difficulty is obvious enough, but republicans tend to overlook it or minimize it because they believe, as republicans, that power is safer in the hands of many than in those of one or a few. Power is more surely in the hands of many when exercised in the form of law–”standing rules,” as opposed to arbitrary decree. Republics tend to believe in the rule of law and hence to favor legislative power over executive.
Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli’s terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. “Necessity knows no law” is a maxim everyone admits, and takes advantage of, when in need. Small-r republicans especially are reluctant to accept it because they see that wise discretion opens the door to unwise discretion. But there is no way to draw a line between the wise and the unwise without making a law (or something like it) and thus returning to the inflexibility of the rule of law. We need both the rule of law and the power to escape it–and that twofold need is just what the Constitution provides for.
Yet the legislature and the judiciary will of course be partial to the rule of law, and the executive partial to the need for discretion. The Constitution maintains both opposite principles by arranging for an interested party or parties to support that principle in exercising its power. It does not try to teach the overall truth to all parties, as if it were possible to have the legislature and judiciary demurely defer to the executive when discretion is needed, and the reverse when the rule of law rightly asserts itself. No, there will be conflict between discretion and the rule of law, each party aware of the other principle but more convinced by its own.
That is why the two principles do not coincide with the differences between liberals and conservatives, or Democrats and Republicans. Democrats uphold the rule of law now, because as things stand that is all they can hope for. When they held the presidency with Bill Clinton, it was they, during the impeachment trial, who called for pardon and the Republicans holding Congress who tried manfully to vindicate the rule of law by punishing a president who admitted he had violated the law.
. . .
Technorati Tags: Constitution
John Hinderaker, with able help from informed readers, explains -
The administration, of course, has not complained that the New York Times damaged our security by revealing that the NSA is carrying out warrantless interception of communications between al Qaeda members overseas and people in the U.S.; the complaint is that the Times disclosed that the NSA is carrying out such interceptions at all. And, as many emailers have noted, the fact that the terrorists were unaware of the program is demonstrated by the fact that such calls were being made and intercepted.
One Powerline reader emailed some perspective that I was not aware of (the media coverage had revealed NSA code breaking via backdoors, etc.). If he is correct the damage is even more serious:
The damage caused by the NSA intercept case can be better understood by describing the technology involved.
As an introduction, my company produces software for securing high value electronic assets for major banks. Our clients include some of the largest financial institutions in the world. In short, we thoroughly understand electronic security. The NSA program that captures electronic communication appears from all descriptions to have some very significant features previously not disclosed to the public.
First, the communications involved (email and phone) very likely used encrypted channels. Digital cell phones encrypt communications before transmission. Many email programs offer simple encryption options as do PDF files and the like. For many years, the security community has suspected the NSA had “backdoors” into commonly used encryption protocols. These standards include familiar technical terms, such as “SSL” browser security. The recent disclosures publicly (and loudly) confirm the NSA’s highly effective code-breaking technology. An article from 2003 describes the possibility as “theoretical”. http://www.newscientist.com/article.ns?id=dn4130. By disclosing the insecure protocols, the Times simply tipped the enemy to switch protocols.
Second, the intercepts appear to have been supported by US infrastructure and telecommunications firms. Telephone companies (and Internet firms) use digital switching equipment (e.g. routers) to move bits across various networks. Were the NSA to have access to the underlying data stream from multiple Internet and long distance firms, it would have access to every piece of data streaming across the fiber optic cable and could “narrow” the search by filtering based on IP address or phone number. From now on the enemy will consider US telephone and Internet channels insecure under all conditions.
As we have seen in the past, the enemy adapts to sophisticated information gathering techniques. From a purely technical standpoint, this disclosure represents a significant disclosure of the tools, capabilities and methods of the NSA’s information gathering programs. If the breaking of the Japanese and German codes during WWII were published in the New York Times during the war, it would have devastated the American ability to intercept enemy communications. It would also have been treason.
Wall Street Journal editorial 1/7/2006:
. . . But the more we learn about the practice, the clearer it is that the White House has been right to employ and defend it.
The issue is not about circumventing normal civilian Constitutional protections, after all. The debate concerns surveillance for military purposes during wartime. No one would suggest the President must get a warrant to listen to terrorist communications on the battlefield in Iraq or Afghanistan. But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That’s a loophole only a terrorist could love.
“The Wall” and “Probable Cause”:
In 1994, Deputy Attorney General Jamie Gorelick also asserted an “inherent authority” not just to warrantless electronic surveillance but to “warrantless physical searches,” too. The close associate of Hillary Rodham Clinton told Congress that much intelligence gathering couldn’t be conducted within the limits placed on normal criminal investigations–even if you wanted to for the sake of appearances. For example, she added, “it is usually impossible to describe the object of the search in advance with sufficient detail to satisfy the requirements of the criminal law.”
Some critics have argued that the surveillance now at issue could have been conducted within the confines of FISA. But that doesn’t appear to be true. FISA warrants are similar to criminal warrants in that they require a showing of “probable cause”–cause, that is, to believe the subject is an “agent of a foreign power.” But if the desired object of surveillance is a phone number found on 9/11 mastermind Khalid Sheikh Mohammed’s computer, you may not even know the identity of its owner and you can’t show probable cause.
. . .
The upside of the coming Congressional hearings, we guess, is that Americans will get a lesson in the Constitution’s separation of powers. We’re confident they’ll come away believing the Founders were right to the give the President broad war-fighting–including surveillance–powers.
Scott Johnson of Powerline continues with his research into the law relevant to the leaking (and publishing) of the NSA security program. This is a good post to save for further reference. Scott concludes that the leakers are clearly felons:
. . .Subsection (b) defines the critical terms of the statute; suffice it to say that I believe they are clearly applicable to the conduct of the “nearly a dozen current and former govenment officials” who spoke to the Times. Their violation of the statute is a felony. Because their disclosures to the Times were illegal, these current and former government officials sought the promise of confidentiality from the Times to protect their identity. . .
To what extent are the New York Times execs at risk of prison time?
. . . Assuming that the terms of the statute apply to the leaks involved in the NSA story, has the Times itself violated the statute and committed a crime? The answer is clearly affirmative. The statute makes knowing and willful “publication” of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute — 18 U.S.C. § 2 — in willfully helping the leakers publish their disclosures, the Times is as culpable as they are and punishable as a principal.
Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? . . .
The analysis of that last question is complex. Scott thinks probably not:
. . .Accordingly, I think it is fair to conclude that the Times is not immune from criminal liability for violation of section 798 under the Pentagon Papers case. . .
. . .
Is the New York Times a law unto itself? In gambling that constitutional immunity protects it from criminal liability for its misconduct, the New York Times appears to me to be bluffing. Those of us who are disinclined to remit the defense of the United States to the judgment of the New York Times must urge the Bush administration to call the Times’s bluff. (Thanks to University of Minnesota Law School Professor Michael Paulsen for responding to my inquiries while I was researching this post.)
JOHN adds: My guess is that the Times’ decision to commit a crime by publishing the leaked information was based on a political calculation, not a legal one. They probably think the administration lacks the will to prosecute them, and that if the administration makes the effort, the Times will have a winning hand politically, and the Democrats will benefit. They’re probably right on the first point, if not the second. Still, with Pinch Sulzberger, Bill Keller, and the reporters and editors involved in the story potentially facing time in a federal penitentiary, the paper is taking a terrible risk.
In any event, it is deeply revolting to see the Times denouncing President Bush for failing to “respect the boundaries of the law.”
Eugene Volokh comments today on his initial reading of Risen’s book. One especially disturbing observation (speculation really) is that a key national security concern may be that Risen and the risible NYT have informed terrorists and foreign countries to avoid communications that are routed through the U.S. If Volokh is correct, the disclosure of this program is going to be extremely damaging to the security of the entire world - not just to U.S. security:
. . . the details of the program from Risen’s book arguably explains the national security interest in keeping the domestic surveillance program a secret. It’s not that terrorists may suddenly realize that they may be monitored; that argument never made much sense, as every member of Al-Qaeda must know that they may be monitored. Rather, I suspect the security issue is twofold. In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don’t happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States. The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S. Cf. Bruce Hayden’s comment. No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen’s book more or less says this. The disclosure of the program presumably helps frustrate that objective.
The damage is done - but, following the appropriate judicial proceedings, I look forward to seeing all of the leakers of the NSA program spending the remainder of their lives behind bars.
This online question/answer forum is well worth a review. Most of the MSM coverage of the Patriot Act is very poorly informed (as you can judge from the questions posed). Wainstein does a pretty good job of explaining, in common-sense terms, why it is important to make key provisions permanent, and why privacy and civil liberties concerns are unjustified.
Following is a summary of just the Question side of each Q&A exchange:
Jeremy, from Copperas Cove, TX writes:
The biggest issue with the Patriot Act seems to be whether it should be temporary or permanent–why? No abuses were reported, and no one used the grievance claim section, so what’s the problem?
Michael, from Powell, TN writes:
I can understand the need for wiretapping of suspected terrorists to help avoid more attacks. Does all of the Patriot Act need to be renewed?
Joel, from Superior, WI writes:
Mr. Wainstein, What will the effect on the War on Terror be if the US Patriot Act is not renewed?
Jinesh, from Princeton, NJ writes:
Mr. Wainstein, several provisions of the Patriot Act violate America’a basic Constitutional Rights, the Bill of Rights protects all Americans from unreasonable searches and seizures, yet the Patriot Act authorizes sneak-and-peek searches without probable cause, along with other violations of Civil Rights, how does the Supreme Court justify this as Constitutional?
Kate, from South Carolina writes:
Could you please explain how the Patriot Act protects our civil liberties? I think a lot of people misunderstand what is actually in the Patriot Act. Thanks.
Daniel, from Great Barrington, MA writes:
Why do you think some members of Congress oppose the current reauthorization of the Patriot Act and want to add more civil liberties protections?
Jeff, from New Jersey writes:
While I would agree that aspects of The Patriot Act do help law enforcement, many people, myself included, worry that provisions in this act could be used to invade the privacy of law-abiding citizens. Specifically, what checks and balances are in place to prevent this from happening?
The website is silent on whether these questions were selected from a larger number of submissions. I suspect they were - but that doesn’t negate the value of Wainstein’s exposition. And the questions cover the main points of disinformation propogated by the MSM.
An excellent piece by Jeff Jarvis on the NYT national security leaks (with resource links):
Times public editor Byran Calame writes his first almost-tough column taking The Times to task, properly, for not revealing why they did not reveal what they know about warrantless NSA spying — and why they did reveal it when they did. He called the paper’s explanation “woefully inadequate” and said he had “unusual difficulty getting a better explanation for readers, despite the paper’s repeated pledges of greater transparency.” He accused the editor and publisher of The times of “stonewalling,” a word that carries all too much irony in those halls.
Latest Comments
RSS