The big cover-up

The NY Times editorial board.

For more than two years now, Congress, the news media, current and former national security officials, think tanks and academic institutions have been engaged in a profound debate over how to modernize the law governing electronic spying to keep pace with technology. We keep hoping President Bush will join in.

Instead, the president offers propaganda intended to scare Americans, expand his powers, and erode civil liberties — and to ensure that no one is held to account for the illegal wiretapping he ordered after 9/11.

Consider last Thursday’s performance, as the House debated a sound bill that closes some technology gaps in the 1978 Foreign Intelligence Surveillance Act and gives government agencies new flexibility to eavesdrop, but preserves constitutional protections against unreasonable searches. Mr. Bush distorted the contents of the bill and threatened to veto it.

He accused House leaders of “putting in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists.” Actually, the bill merely ensures that special judges continue to supervise surveillance of American citizens. The “cumbersome process” is really a court that acts swiftly and has refused only a half-dozen of more than 21,000 wiretap requests in its nearly 30 years of existence.

What Mr. Bush wants is to be able to listen to your international telephone calls and read your international e-mail whenever he wants, without a court being able to prevent it or judge the legality of his actions.

Mr. Bush said the House bill would “cause us to lose vital intelligence on terrorist threats.” But he has never offered credible evidence of any operation that was hobbled because officials had to request a warrant. The law already allows the government to eavesdrop first and then seek a warrant. As for that technology gap, Congress fixed it last year. The authority has expired, but wiretapping operations started under it can continue.

Finally, Mr. Bush said it was vital to national security to give amnesty to any company that turned over data on Americans without a court order. The purpose of this amnesty is not to protect national secrets — that could be done during a trial — but to make sure that the full damage to Americans’ civil liberties is never revealed. Mr. Bush also objects to a provision that would create a committee to examine his warrantless spying program.

Mr. Bush wanted the House to approve the Senate’s version of the bill, which includes Mr. Bush’s amnesty and does not do nearly as good a job of preserving Americans’ rights. We were glad the House ignored his bluster. If the Senate cannot summon the courage and good sense to follow suit, there is no rush to pass a law.

The president will continue to claim the country is in grave danger over this issue, but it is not. The real danger is for Mr. Bush. A good law — like the House bill — would allow Americans to finally see the breathtaking extent of his lawless behavior.

Pakistan's "lawfare"

Via TPM, the Informed Comment blog is featuring posts from Dr. Barnett Rubin who is live-blogging events from Islamabad. Watching Musharaf's speech he noted something familiar:

Judging by the General's actions, judicial activism is a much more sinister and immediate threat than terrorism, as all of his actions since yesterday have targeted the former rather than the latter. Indeed Musharraf's agents managed to pirate the codes to prevent Geo TV from uploading its programs to satellite, while Maulana Fazlullah's FM station in Swat continues to broadcast calls for jihad without impediment.

Judicial activism? Where'd he get that one. Oh, yeah. But Rubin learns that Musharraf's resemblance to the religious right in this country isn't the only thing he's learned from his political enablers in this country.

Opposing "judicial activism" is one of the rallying cries of American right. Initially this was simply a cover for racism, as the most salient examples of "judicial activism" were Brown vs. Board of Education and other decisions by the Warren Supreme Court overturning American apartheid. Over time, however, the term began to cover a larger protest against attempts to extend the rule of law to the disadvantage of the powerful.

Not until the Bush administration, however, was this political code word integrated into the National Security Doctrine of the United States. Scott Horton of Harper's, writing on "Bush's War on the Rule of Law" describes how the attack on judicial activism entered national security doctrine through the concept of "lawfare":

According to Major General Charles J. Dunlap Jr., now the Air Force’s deputy judge advocate general, lawfare is the “strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective.” As the neoconservative lawyers David Rivkin and Lee Casey have put it, lawfare aims to “gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.” The concept, which has been discussed in the Federalist Society and at National Review Online, became doctrine in the March 2005 National Defense Strategy of the United States of America: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” Note the equation of “international fora, judicial processes, and terrorism.” In other words, turning to courts for the enforcement of legal rights, appeals to international tribunals, and terrorism are seen as the elements of a single consistent enemy strategy. In the strange reasoning of the lawfare theorists, lawyers who defend their clients, or who present their claims to domestic or international courts, might as well be terrorists themselves.

This could serve as a cogent summary of the doctrine presented by President Musharraf. Unlike Bush, Musharraf at least had the decency to announce to the whole world that he was placing the constitution "in abeyance" and arrogating all power to his sole person. The Bush administration prefers to promulgate shadowy memoranda, signing statements, and Humpty-Dumpty like amendments to the meaning of common words. Since the courts are instruments of terrorists (and can even be used to demoralize the security forces!) counter-terrorism logically requires the abolition of the rule of law.

Comparing England and India in the 19th century, Karl Marx wrote, "The country that is more developed industrially only shows, to the less developed, the image of its own future.” But the 20th century refuted Marxism through praxis, giving birth to new laws of history. In the 21st century, the country that is less developed institutionally only shows to the more developed the image of its own future.