tabling at the farmers market, exposed!

Scott McLemee’s latest essay is a good one. He writes the “intellectual affairs” column for Inside Higher Ed and often ruminates on books, trends in theory, or ideas that crop up in the news but have an iceberg-like past that’s invisible to most of us. This time he ties together the “red squad” surveillance of C.L.R. James in the 1950s, the Cointelpro shenanigans of the 1970s, and the recent release of documents describing the careful surveillance of people who were plotting against capital punishment. Planning leaflets. Tabling at a farmer’s market. Seditious stuff. And – as he always does – McLemee hearkens back to a classic article in a scholarly journal on the nature of agents provacateur and informants.

The redacted report of the police agent describes the surveilled as “socialists,” “anarchists,” and “terrorists” as if these are interchangeable categories. Nothing documented by the undercover officer was even faintly illegal or reason to take precautions to protect public safety. McLemee is right to call this “Patriot Act sensibilities at their most deranged.” But though it seems laughable, it’s important to recognize the fundamental illegality of those portions of the Patriot Act that enable this bizarre and dangerous waste of time. The Constitution has a way of cutting through the bullshit. And on this subject it’s quite clear:

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.

The report from the surveillance is here, all 46 trivial pages of it.

constitutional yoyo

Thank you, thank you, thank you Senators Dodd, Bingaman, and Feingold! You make me proud in a week when I have had to wonder what we value in this country.

image courtesy of kjd

I’m thinking.

I am very happy about this Supreme Court decision. Ashamed that four justices would dissent, with the Chief Justice as the author of the dissenting opinion. Irritated that Scalia would claim “It will almost certainly cause more Americans to be killed.” Bullshit.

And I’m worried about what Siva Viadhyanathan points out: “Three of the five justices who voted in favor of the Constitution and rule of law are likely to retire in the next four years. Think about it.”

(I just learned about this cool wordle gadget thanks to Anne-Marie)

read all about it – now that it’s declassified

The infamous John Yoo legal  memorandum justifying  treatment of prisoners at Guantanamo Bay has finally been declassified. You can read the whole, sorry thing now, though not too long ago it was just too sensitive. Turns out it’s just too damn stupid, so poorly reasoned the feds abandoned it. Thanks to the ACLU it’s finally seeing the light of day.

Today the Pentagon has also decided to rethink its intelligence unit. Remember when “military intelligence” was the classic example of an oxymoron? And remember when we thought having the military spy on dissidents was unconstitutional?

Looks as if “constitutional” may be coming back in fashion.

we had to destroy the constitution…

Mark Fiore has a fun animation on the current warrantless wiretapping debate – featuring Snuggly, the Security Bear, who explains spying is all about love, and that, in order to preserve democracy, we have to destroy it. Giggle.

I just wrote to thank my House member to thank him for not caving on the immunity issue. We’ll see if the House keeps its backbone. (The Senate obviously has none.)

controversy and consequences

This is a very disappointing turn of events. Gene Nichol, the president of the College of William and Mary was not only turned out by the (quaintly named) Board of Visitors, but they offered him a bribe to keep quiet about the ideological underpinnings of the Board’s decision. Being a man of principle (which is what got him in trouble in the first place), he turned them down, and declined to serve the remainder of his term as president.

What was so wrong about his leadership? The board explains:

Many policies championed by President Nichol are fully embraced by the Board. We agree unflinchingly with the President’s efforts to make William and Mary a more diverse educational environment. His achievements in this area will be the most enduring part of his legacy. We will continue the pursuit with vigor and will insist that all future presidents of the College do as well. We strongly support the Gateway program and will work to put it on sound financial footing by building an endowment that will allow it to blossom. Equally, we continue to see the enormous value that attends to the efforts of internationalization and civic engagement.

Hmm. That sounds like a pretty good record. But nevertheless the board determined there were “a number of problems that were keeping the College from reaching its full potential.” They deny that those unarticulated problems have anything to do with ideology, such as a controversial art show or the removal of a cross from a chapel to make it hospitable to all faiths. (The College of William and Mary is a public institution, and the former president believes in the constitutional separation of church and state.)

Maybe the key factor, despite strong support from current students, is this line from the WaPo coverage:

His decisions prompted many alumni to stop donating money.

Addendum: Inside Higher Ed covers the story here; the comments illustrate the extreme polarization. I can see where it would be tricky to have a president (whose job is largely to raise money) be a controversial lightning rod, but nothing good can come of this. Maybe the moral of the story is to avoid hiring constitutional law professors as college presidents – which is a very sad state of affairs.

Kafka on the Potomac

Whitehouse issued a statement earlier this week…

Wait, that’s confusing. Senator Whitehouse, who seems to have a lot more on the ball than the Whitehouse these days, made a terrific speech in which he clearly points out the Kafkaesque legal strategy that basically boils down to “the president can do whatever the hell he wants and it’s perfectly legal because the president can do whatever the hell he wants.” Here’s a snip from his excellent speech that examines documents that we’re not allowed to see because it’s dangerous for the electorate to know what the president’s legal strategy is.

In a nutshell, these three Bush administration legal propositions boil down to this:

1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”

2. “I get to determine what my own powers are.”

3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories. I understand political loyalty, trust me, I do. But let us also be loyal to this great institution we serve in the legislative branch of our government. Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic. And let us be loyal to the American people who live each day under our Constitution’s principles and protections.

We simply cannot put the authority to wiretap Americans, whenever they step outside America’s boundaries, under the exclusive control and supervision of the executive branch. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection wherever on God’s green earth they may travel.

Senator Whitehouse not only has a JD, he served as a US Attorney and was elected to serve as Rhode Island’s attorney general before joining the US Senate. I think he knows a bit more about the law than King George. And I have a feeling he’s read Kafka.

more secrets and lies

Threat Level posts some astonishing and disturbing news – if it turns out to be true. According to documents in the case of Quest’s former CEO – a man recently sentenced to prison for insider trading, and the only phone company official to refuse to assist the NSA in their massive surveillance efforts – the NSA approached phone companies to set up their unprecedented and unconstitutional data sweep of electronic communications several months before 9/11. This much-redacted document filed in his appeal may be covered in black ink, but it still has traces of a smoking gun. We can’t tell why the NSA approached him . . . but we can fill in the blanks. According to Threat Level, the appeal is partly based on the CEO claiming he expected higher earnings because of an NSA contract that fell apart when, in February 2001, he refused to provide calling records without a warrant. That was six months before the attacks that supposedly justify this surveillance.

Update: Threat Level has additional angles on this story. The former Quest CEO isn’t the only one saying this predated 9/11.

The other news this week, the Supreme disgrace. For the first time the Supreme Court has declined to hear a case because the US government has invoked a claim of state secrets. In effect, the court has given the government immunity for its rendition program, because any evidence that they may have broken the law is a state secret.

The moral of the story? Break the law and call what you did a state secret, and you’ll never get caught or be stopped. Kafka couldn’t come up with a better twist.

producing monsters

The New York Times tells us when the administration said “read my lips, no new torture” they were just kidding. In fact, behind the scenes they were writing additional memos explaining how to torture and get away with it. (Naturally they’re classified, so by definition exempt from oversight.) One of the weird things that struck me reading this story is to realize the extent to which the questions raised by interrogators were not “should I do this?” or “is this going to work?” Just “how far can I go without putting myself in legal jeopardy?” The banality of it all.

Though is anything surprising anymore? My outrage-o-meter broke due to overuse several years ago, and they don’t make them anymore. But it still makes me sad and angry to see such total contempt for court, for congress, and for the constitution. This is an administration that seems to think crossing your fingers behind your back makes it okay. Isn’t that what those signing statements are? “This is now the law of the land; I give myself full authority to ignore it.” I guess when Bush took his oath of office, he had his fingers crossed. Protect and defend the constitution? Sure, why not. Hehe.

It’s not just that this behavior mocks the constitution (of which, silly me, I’m fond); it’s contemptuous of reason, of the enlightenment, of language, of meaning itself.

More fallout today.

hot off the bench

This just in – another ruling that the PATRIOT Act (specifically, amendments to FISA, the law that the Department of Justice thinks it too darned fussy about warrants and such) is unconstitutional.

After an Oregon man was implicated through faulty fingerprint analysis in the Madrid bombings, the FBI planted bugs, conducted sneak and peek searches, did the same to his home and law office – then, when Spanish authorities pointed out the fingerprints didn’t match and they couldn’t see any connection between this guy and their supsects, the FBI did it again. And arrested him. And now the courts are saying – nope, can’t do that.

For over 200 years, this Nation has adhered to the rule of law – with unparalleled success. A shift to a Nation based on
extra-constitutional authority is prohibited, as well as illadvised. In this regard, the Supreme Court has cautioned:

The price of lawful public dissent must not be a
dread of subjection to an unchecked surveillance
power. Nor must the fear of unauthorized official
eavesdropping deter vigorous citizen dissent and
discussion of Government action in private conversation.
For private dissent, no less than open public
discourse, is essential to our free society.
Keith, 407 U.S. at 314.

Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution. Plaintiffs’ Amended Complaint for declaratory relief is granted.