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I've been mentioning, of late, the Gonzales and Yoo memos, about presidential power in time of war.

Bruce Schneier sums it up pretty damned well here (it was also an op-ed in the Minneapolis Star Tribune, but he goes into more detail on his blog, if I read it right).

My complaint with the Bush administration's views is that they argue the president has unlimited powers during wartime. This is the idea which led Bush to say his telling the NSA to spy on people was legal, and to allow torture, hold citizens as, "enemy combatants" and all the other things people (at this point on both sides of the aisle, from Bob Barr [of all people] to the ACLU).

But on to what Bruce had to say on it.

Here's the opening paragraph of the Yoo memo. Remember, think of this power in the hands of your least favorite politician when you read it:

You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

There's a similar reasoning in the Braybee memo, which was written in 2002 about torture:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, ‘because the circumstances which may affect the public safety’ are ‘not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.’ . . . [The Constitution’s] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.


The crucial point, is here, "Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton's 1998 strike against Sudan and Afghanistan.

Yoo then says: "The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. ... The President's power to respond militarily to the later attacks must be correspondingly broader."

This is novel reasoning. It's as if the police would have greater powers when investigating a murder than a burglary.

More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House's initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

Yoo's memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that "the Joint Resolution is somewhat narrower than the President's constitutional authority," but argued "the President's broad constitutional power to use military force ... would allow the President to ... [take] whatever actions he deems appropriate ... to pre-empt or respond to terrorist threats from new quarters."

Even if Congress specifically says no.


And that's what scares me. This president believes he is the final arbiter of what is legal.

When I look at the GAO saying the Ohio vote was suspect, and probably corrupt, the President's supporters arguing that it's more important to investigate those who leaked that spying of questionable legality was going on (never mind that those to whom they leaked sat on it for a year; that's another issue altogether, one which ties into whom the Press is serving, and how much it can be trusted in these days) rather than to ponder the idea that the president has been, for the past four years, engaging in wiretaps without warrants. When I see real harm to our intelligence efforts being done, and those same supporters saying that's just business as usual, "nothing to see here, move along." When I see the Courts being used to avoid review (for which the 4th Circuit just slapped the administration upside the head; with statements that the credibilty was in jeopardy, because questions of similar nature would come up again, and this makes it hard to think them acting in good faith), when I see the president saying he can declare anyone, anywhere, an enemy combatant; at which point they lose all civil rights, when I see him ignoring the findings of the tribunals he constitutes, and holding those deemed innocent by them...

When I see things like that, I begin to think him a threat to the republic, as great a threat as we have ever faced.

I begin to see an American Caesar.



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Today, in 1791 the Bill of Rights was ratified.


Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


Those ten amendments, probably more than any other aspect of the Constitution define who we are as a nation.

To quote Lincoln we are now engaged in a great struggle to see if any nation so conceived can endure.


For years, even decades (hell, practically since the inception of the country) the Gov't has been trying to chip away and file down the protections those ten amendments provide. I think this a bad idea. It isn't that I think them Holy Writ, graven in stone by some sacred set of Iconic Founding Fathers who knew all, and made no mistakes. Some things need to be adjusted to meet the needs of the present (who here thinks that 20 dollars at issue ought to be the threshold at which a jury trial is guaranteed? Next time you want some fun, ask that question of a, "Strict Constructionist), but rather those ten additions to the Constituion probably have more to do with what we are, and what we ought to be, than the rest of it put together. The actual text of the constitution is about mechanics. How we go about governing ourselves. How the social compact is administered.

The Bill of rights, on the other hand, (with some late additions, after the Civil War) define the social contract.

In my lifetime, however, major aspects of it have been compromised, in the name of law and order.

Warrants are no longer required to search any vehicle, within 50 miles of the border. If, however, the cops fail to find anything they aren't obligated to put your car back in order, nope, they acted, "in good faith," and so are protected, even if (as has happened) the motorist's vehicle has been completely disassembled at the side of the road, requiring, at the very least, a good set of tools and some hours to put back together.

RICO was brought out to stop the Mafia, by going after the ill-gotten gains. But in the War on Drugs (and on porn, at least once) it's been used as a bill of attainder; and one which would have made Elizabeth I blush (or, as I would like to think, blanch). No need to actually charge anyone, just make a RICO seizure and they lose everything. If you do charge them, well the stuff they own can be used to finance the prosecution, and if they are acquitted, so sorry, nothing left to return (this happened to a bookstore in Fla.. The DA decided Marvel Graphic Novels were pornographic. Sent a couple of 17 year-old boys in, about ten minutes apart, and used those two sales to show, "a pattern of criminal behaviour," and invoked RICO. They were acquitted, but all they had in the shop was gone, merchandise and furnishings.)

These days the bogeyman isn't the Mob, nor so much the Drug Cartels, it's terrorists. We are told this is something completely new, and the old ways of doing businsess are outmoded. The answer was, The PATRIOT Act. So important was this that we passed it, unread, some four years ago.

There is one part of the PATRIOT Act which might be useful, which is the part where the various agencies working on things are supposed to talk to each other more easily, when say the FBI finds links to terrorism while it's working on a plain-jane criminal matter. But it doesn't The CIA is also expected to give plain-jane criminal info to the FBI when it enounters it in a terorism investigation. That's a camel's nose. It puts the CIA in domestic affairs. Not good. That way lies the deuxieme beaureau of Napoleon, or Stalin's NKVD.

That seems a tad extreme, but since, without a warrant the FBI took down, into permanent files, a host of information on everyone who got a room in Vegas for an entire weekend (they had, "credible" information that a terrorist attack was going to take place. It didn't, but by gum, if it turns out later that one of the tens of thousands of people who stayed in Vegas that weekend becomes worth looking at, there will be a working file).

That, at least, was done legally (no matter how odius the law might be), and could be stopped. Then again maybe not. The WaPO, and the New York Times report, not denied, that the White House arranged for the NSA to spy on uncounted persons who made international phone calls, or sent e-mail overseas. They did this on the simple say so of the president. No warrant, no National Security Letter, no nothing, except the command of the man in the Oval Office. No oversight.

Today, however, the Senate decided enough was enough. Some senators have been declaring public qualms (not least among them Russ Feingold
the only one who stood up and opposed it at its inception. Others only lately.

Few of them seem willing to just let the thing die, and trust that the systems we had in place before this rancid piece of legislation was passed could do the job, but they are willing to question some of the most offensive aspects. They asked for three months, so they could investigate (four years, it seems, wasn't enough).

The White House said no. Pass it, or don't, but anything less than permanent extenstion would be vetoed (this seems an empty threat to me, this president hasn't vetoed anything. Just today he caved in on McCain's anti-torture amendment... the one he said he'd veto, even if it was on an appropriations bill for the war in Iraq. Why anyone believes he'd veto an extension to a law he likes, rather than let it die is beyond me).

So some senators did what they were hired to do, looked down the road to see where we were going, and they decided they didn't like it. The pulled a filibuster, despite the usual fear-mongering of those who want to railroad this sort of curtailment of rights. Take, for example, the words of Jon Kyl (R-Ariz) [The PATRIOT Act]he Patriot Act "will prevent future acts of terrorism unless we allow it to expire.". If a filibuster resulted in the act's ceasing to exist and an attack occurred, "everyone who votes to support a filibuster will have to answer for that.

Which is arrant nonsense.

Anyone who's studied the problem will tell you the question isn't if, but when. It may be some external threat, it may be another McVeigh, or Rudolph. We've stopped a number of attempts, and those through classic law enforcement. The Millenium Bomber, caught by an alert Customs Agent.

The folks in Texas, with the makings of a whole lot of chemical weapons (goodly folk too, God-fearing white people) they weren't snared up because the CIA was tapping their phones.

That's what's most offensive about things like RICO, and the PATRIOT Act. They ask us to sacrifice our freedom for percieved safety. As Franklin said, those who are willing to do that deserve neither.

He also said we have a Republic, if we can keep it.

These things, IMO, are grave threats to our keeping it, and I don't want to see it vanish from the face of the earth.

Call your senators (and your rep) and tell them this thing is bad, evil, a dog's breakfast and we don't need it. Tell them why (there's lots of reasons why), and just maybe we can get a little closer to those ten amendments again.



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I had a miserable trip home, once I left the hotel in D.C.

Weather delayed my flight, which meant I missed my connection, and opted for the train from L.A. to SLO.

While I was at Dulles I asked if I could deputize someone to pick up my luggage (which was waiting at the airport in SLO, since it was already on the plane). I was told this wasn't allowed, since I'd need to show ID.

But it got me thinking. If I took a bump, and had a bomb in my bag, the bag would go on the plane, and I wouldn't.

To make things more amusing, when I told Maia I wanted to go get my bag, she said we could drive to the airport, but the bag was home already, since the had called her, and told her she could come and get it. This is amusing, because they called her on the landline, which wasn't on the bag, so they used a reverse directory to get it from my address; esp. because the landline isn't in my name.

Phone rings

Maia: Hello

Agent: Does Terry Karney live at this address?

Maia: Yes

Agent: Would you like to come and pick up his luggage?

Maia: Ok, do you want to know who I am?

Agent: No, we trust you.


So, anyone willing to answer a phone and say I live there can come and get my luggage.

On a different note, I pay the $15 extra to get a business class seat on the train. I do this because I want a table to spread the computer on (the snack/coffee/free wine is nice, but not worth the extra money. If I wanted them I could pay less for them in the Cafe).

No more. Because of the Londong Bombings they no longer have double-decker cars on the line (I don't know for any line other than the Pacific Surfliner). This also means the luggage racks at the ends of the cars, and the checked luggage underneath no longer exist. Maia says she heard a woman (with a large bag) told she had to sit with it so that, "if it blows up, you go with it."

Mind you, blowing a large hole in the bottom of a train one happens to be sitting in is likely to cause enough damage to make one's survivial problematic.

More to the point, nothing, and I mean nothing, stops me from walking away from it. I have spent entire trips in the Cafe car, my bag left at my seat.

I could, if I wanted, climb off the train. With a small bit of planning I could even look as though I'd taken my luggage with me (just tuck one in an outside pouch, drop my knapsack, with books and computer into it, and add some inflated ziplocks for bulk).

So, for the appearance of making me more safe, they have reduced the amount of money I'm willing to pay to ride the train (and I like the train).

I can only hope this is a temporary idiocy.




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