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The Politics of Surveillance and the Specter NSA Bill:
Senator Specter's NSA bill passed out of committee yesterday by a 10-8 vote. While the Specter bill remains controversial, and its future is uncertain, my understanding from press reports is that it has a somewhat decent chance of getting through Congress. This brings up a very interesting question: Why is it that Congress seems to be open to the Specter bill just a few months after it gave the Administration such a hard time with the Patriot Act renewal?

  Here's a little background. In 2005 and early 2006, Congress struggled over the renewal of a few parts the USA Patriot Act which were set to "sunset" by the end of 2005. On a scale of 1 to 10, in which 1 is the least important and least far-reaching and 10 is the most important and most far-reaching, the controversial parts of the Patriot Act renewal were about a 2. Nonetheless, the Bush Administration struggled for months to push through the legislation. Congress held hearings on almost every teeny tiny piece of text, and had to pass interim legislation because the bill couldn't get through. In the end, the legislation that resulted was more restrictive than the authorities permitted by the Patriot Act. Throughout the process, every comma and letter was pored over with extensive focus over the balance between Executive power and civil liberties.

  Compare that to the developing politics surrounding the Specter NSA bill, which was voted out of the Senate Judiciary Committee. On the same scale of 1 to 10, in which 1 is the least important and 10 is the most important, the Specter bill is somewhere around an 8. The Specter bill would reorient the basic role of the legislative branch in national security surveillance. In terms of importance, its provisions dwarf the provisions in the Patriot Act renewal by orders of magnitude. And yet Congress isn't holding lots of hearings on it, or debating it very much. Although the bill certainly has its critics — note that the Judiciary Committee vote was 10-8 — Congress at least seems open to enacting the bill's very significant changes.

  So back to my question: What explains Congress's apparent openness to the Specter NSA bill given the very rough ride that the Patriot Act renewal bills encountered just a few months ago?

  I'm not sure of the answer. But here are a few possibilities:

  1. The comparison is premature. The Senate Judiciary Committee isn't representative of Congress as a whole. The bill is out of Committee in the Senate, but it will encounter major roadblocks elsewhere that will kill the current version of the legislation.

  2. Most members of Congress and their staffers don't particularly understand this complex area of law. The intricacies of surveillance law can be just a big blurry mess to them, and they don't fully realize the scope of the NSA bill.

  3. Key figures in the Bush Administration really care about this one, whereas they didn't care about the Patriot Act renewal. Informed insiders in the Bush Administration surely knew that the controversy over the Patriot Act didn't matter much, and so they were happy to keep it a low priority. In contrast, this one is a biggie, and so they're pushing really hard for it.

  4. The public can pay only so much attention to surveillance law, and after years of discussion of the Patriot Act they're just not that interested anymore. The relative lack of focus makes it a lot easier to act on otherwise-controversial legislation.

  5. The basic facts of the NSA program are highly classified, so classified that even Senator Specter himself doesn't know how the program operates. It's relatively hard to drum up opposition to the regulation of a black box. In contrast, the Patriot Act debates were spearheaded by a few attention-grabbing scenarios, such as access to library records, which could be used by opponents to focus public attention.

  6. Press miscoverage of surveillance law has so warped the public understanding that one or both of the public reactions do not reflect actual public preferences. The press repeatedly overhyped the Patriot Act, so perhaps that led to excessive controversy over its provisions; perhaps the public reaction to the Specter bill accurately reflects majority preferences. On the other hand, the press initially reported the Specter bill as a compromise, so perhaps that led to an unnaturally low amount of public opposition to it.

  Any other thoughts? Maybe I'm just missing something, but I do find the comparison pretty interesting.
rarango (mail):
All good possibilities--also: perhaps the last chance to stake out a "national security" voting position before the mid term elections?
9.14.2006 6:00pm
Justin (mail):
This close to midterm elections, Democrats (whose opposition is somewhat pathetic and weak-kneed, given the horrors that this bill contains) are taking a wait and see approach, but will come to oppose this in full force once they have organized a strategy, says the optimist in me.
9.14.2006 6:03pm
Anderson (mail) (www):
but will come to oppose this in full force once they have organized a strategy

Don't scare me like that, Justin. I don't expect to live long enough to see "Democratic strategy" become anything but an oxymoron.
9.14.2006 6:05pm
BigBen (mail):
It seems to me that it's a combination of 3 and 5, and possibly 6.

Given the strong defense the administration has put behind this, it seems fairly obvious that they really want this to pass.

At the same time, because the program is largely classified (obviously excepting what was leaked) and the administrations defenses of the program. Many of the responses that I've seen or heard from people about this seem to be under the impression that the options are either US "eavesdropping" on the terrorsists without a warrant, or us not watching them at all.

Further, because most people dont know exactly what the program entails, there isnt that public shock that occured when opponents of the patriot act announced that the government could examine your library records or search your house without telling you about it.


I think the combination of these two makes it much easier for Legislators on the committee to bow to the presidents pressure without feeling that they're talking a very big risk. So it's a positive trade off for them, and they avoid the charge that "so and so doesnt want us to catch terrorists." Which sadly, often seems to be the focus of the debate.
9.14.2006 6:07pm
Just an Observer:
I think everything Orin enumerated is true. There are some additional factors:

* Vice President Cheney has made no secret of his opinion that he thought Congress was fundamentally wrong when it enacted FISA in 1978, and eviscerating or repealing FISA has been part of his agenda to restore power to the presidency. I doubt that George Bush knew or cared much about FISA before he became President, but Cheney and his staff obviously have led the White House toward this goal.

* Given the expected outcome of the next election, this is the last, best hope for the administration to achieve such a goal. The expansion of such executive power, not just the war(s), has become part of the Bush legacy.

* The Republican party has made this bill -- together with the bill to authorize its version of military tribunals and weaken enforcement of Geneva Convention's Common Article 3 -- the very centerpiece of this crucial mid-term election campaign. Thus, it becomes a huge wedge issue. The handwriting has been on the wall since the White House succeeded in making NSA domestic surveillance a party-line matter in the Senate last spring.

* Getting Specter to carry the water for the White House was hugely significant, since he had established the public persona of a tough critic of the program. Other leading "moderate" GOP critics in the Senate, primarily Graham, folded their tents fairly early and signed on to the DeWine bill that would authorize warrantless surveillance directly within an amended FISA. Specter's "compromise" with Bush and Cheney. which would repeal FISA's core provision binding the President and make what's left of its procedures optional, makes the DeWine bill seem modest.

* Democrats heretofore have been reluctant to fight, fearing the soft-on-terror label. Since they now are going to be pummeled with this whether they fight back or not, it may be that they now will fight back because they are left with no choice. It remains to be seen if they have the gumption for a filibuster.

* One interesting side story is the recent resistance of a handful of libertarian-leaning Republicans in the House, led by Rep. Jeff Flake of Arizona. They rather spoil the scripted campaign image of patriotic Republicans fighting soft-on-terror Democrats. This rebellion was part of the reason for Bush's personal appearance today before the House GOP caucus, a rather unusual step for a president to take.

* While the administration is weak legally, and now even faces a District Court decision holding the program illegal (and even unconstitutional), its core strategy always has been to play rope-a-dope in the courts while maneuevering for a fix in Congress. What is happening right now is the endgame of that strategy. It is not over yet.
9.14.2006 6:36pm
Grant Gould (mail):
Part of this may well be opportunistic. I suspect that the Republicans were quite surprised to find that they could get a party-line vote in the Senate out of surveillance issues last Spring, but couldn't get a party-line vote out of torture/aggressive interrogation/alternative techniques/whatever. I think it may just have taken them this long to realize that they misread the intraparty dynamics and to reorient their legislative strategy accordingly. If there's one serious weakness we've seen in this administration it's that time and time again, from social security reform to torture to Harriet Miers, they've misread their own Senators and miscounted the Senate votes; this may just be a case of the initial misreading being in the other direction.
9.14.2006 6:47pm
Westie (mail):
The question is narrower: why is the behavior of Congressional Republicans different? No democrat voted to move these bills out of committee and my sense from the newspapers and left-blogosphere is that democrats are highly motivated in opposition. Everyone should check out Jack Balkin's post today, which is, I think, a good representation of the progressive perspective on these bills. What is different is that Republicans are rolling over for the administration, or at least not engaging in atmospheric and symbolic opposition. And I think thats largely because of reason 3 which is driven by the Republican Party strategy for the midterm elections: label democrats as limp-wristed terrorist-coddlers who don't have the guts or the "seriousness" to win the war (i.e., democrats aren't willing to torture prisoners or disregard the constitution).
9.14.2006 7:11pm
A.S.:
None of the above.

It's all politics. The Patriot Act was completely demogogued by the Democrats and their allies (even including the benign-sounding American Library Association). It was made out to sound like the coming of fascism to America. The high amount of scrutiny resulted from the continuing efforts to wring more political points from that demogoguing.

The NSA program, on the other hand, hasn't been as demagogued. Many Democrats seem to approve of the program itself, even if they don't think it's been implemented in a legal manner. Hence, the demogoging of the program has been low. And if you can't get a lot of political points out of you scrutiny of the bill, and you basically support the program anyway, why spend political capital with loud opposition?

Anyway, that's my take.
9.14.2006 7:12pm
A.S.:
Let me try to explain it somewhat differently. While the Patriot Act may have actually been a 2 on your scale, it was made out by the opposition to be an 8. And while the NSA bill may actually be an 8, the opposition has only presented it as a 2.
9.14.2006 7:15pm
Westie (mail):
As evidence of democratic opposition to the Specter bill, check out the newest post at Glenn Greenwald's website: http://glenngreenwald.blogspot.com. Greenwald was on a conference call today with Harry Reid who flatly stated that the bill would not pass the Senate, although he was somewhat coy as to how it would be blocked.
9.14.2006 7:16pm
Anderson (mail) (www):
Greenwald was on a conference call today with Harry Reid who flatly stated that the bill would not pass the Senate

Hm. I've been impressed with Reid on occasion; let's hope he knows whereof he speaks.
9.14.2006 7:28pm
Steve:
Funny how A.S. posits that "it's all politics," yet somehow he only finds room to discuss the political motivations of the Democrats. The GOP, we can assume, is acting solely out of deeply held principle.

This no doubt explains why, as Westie notes, the Democrats are acting the same and the Republicans are acting different.
9.14.2006 7:35pm
A.S.:
Funny how A.S. posits that "it's all politics," yet somehow he only finds room to discuss the political motivations of the Democrats.

Steve, the point is that the difference in the Democrats' ability to score political points explains the difference in how the two pieces of legislation are being treated (which is the difference that Orin is trying to explain).

Presuambly the Republicans are treating both pieces of legislation similarly. You can characterize what the Republicans are doing any way you like, but if they treat both similarly, then that isn't likely to go far in explaining the difference that Orin would like to explain. No?
9.14.2006 7:43pm
Kazinski:
If Reid and the Democrats filibuster the NSA bill then they will finally and completely exposed themselves as Rovian plants. There would be no better campaign issue for the Republicans than an election when Democratic Senators are taking a principled stand on the sanctity of communications between Al-Qaida leaders and their US embedded moles and fellow travelers. You won't get any Democratic Senator in any race closer than 15 points sign on for that filibuster. I'd go so far to say that Nelson could make his race in Florida against Harris into a squeaker by voting against cloture. I'll bet the campaign commercials are already in the can.
9.14.2006 7:48pm
Steve:
Steve, the point is that the difference in the Democrats' ability to score political points explains the difference in how the two pieces of legislation are being treated (which is the difference that Orin is trying to explain).

Uh, the Democrats strongly oppose both pieces of legislation. Every Democrat on the Judiciary Committee voted against sending Specter's bill to the full Senate. Stronger opposition is not possible, unless they dredge up some dead Democrats to vote (hardly beyond the realm of possibility).

Presuambly the Republicans are treating both pieces of legislation similarly.

Orin very clearly explained the difference between the two bills, which is that CONGRESS - not "the Democrats" - treated the Patriot Act renewal as though it were radioactive, enacting it only after months of hearings and markups.

Congress is controlled, last I checked, by the Republican Party. The Republicans get to decide how much wrangling occurs before a bill gets sent to the floor; they can send it there in a heartbeat on a party-line vote, if they choose to, just as they have done with the Specter bill.

The only way you could possibly conclude that "the Republicans are treating both pieces of legislation similarly" is if you didn't even bother to read Orin's post.

The difference is fairly obvious in political terms. Some Republicans feared political consequences if they were perceived as rubberstamping the Patriot Act renewal - chalk this entirely up to Democratic demagoguery, if you like. The alternative explanation would be that the Republicans held all those hearings and markups not for political reasons because they were actually concerned about the substance of the bill, and if you want to make that case, I won't stop you.

Most Republicans do not appear similarly concerned about the Specter bill, which suggests two possibilities: either (1) they know the bill will not pass, and thus there's no point; or (2) they believe the bill has no political downside for them. Surely, there are plenty of people like Kazinski out there, who honestly believe the Democrats are opposed to surveillance of al-Qaeda, so they may be entirely correct. But I certainly wouldn't be proud of such a dishonest framing of the issue.
9.14.2006 8:06pm
Greedy Clerk (mail):
Orin -- Senator Reid says the bill is dead. We'll see if he's right, but it does not look like this is going to go through as easily as you first thought.
9.14.2006 8:14pm
A.S.:
The difference is fairly obvious in political terms. Some Republicans feared political consequences if they were perceived as rubberstamping the Patriot Act renewal - chalk this entirely up to Democratic demagoguery, if you like. The alternative explanation would be that the Republicans held all those hearings and markups not for political reasons because they were actually concerned about the substance of the bill, and if you want to make that case, I won't stop you.


Steve, I don't think we really disagree! My point is basically the same as your former explanation (not the latter, "alternative", explanation). The Democrats were able to demagogue the Patriot Act. Which made Republicans act much more carefully. Democrats are not able to demagogue the NSA bill. Which allows for smoother passage through Congress.

I understand you may not want to accept my characterization of the scoring of political points as "demagoguing". Call it what you will. But the reason that one bill may get through Congress with less difficulty than the other is that one bill was demagoguable (is that a word?) and the other largely hasn't been.

The relevant explanatory difference is the relative ability of the Democrats to score political points.
9.14.2006 8:16pm
A.S.:
In rereading the post, I guess my point is really covered by Orin's #5. So it's not "none of the above". My apologies.
9.14.2006 8:35pm
Shake-N-Bake (www):
Judging by Reid's statements, this is headed for filibuster, or there are at least 6 GOP senators who will vote against the bill.

I really hope there is actual debate on this that gets reported in the media as actual debate, but I'm sure it will just devolve into GOP partisans saying the Democrats support terrorists and the Democrats saying the GOP is wiping their arses with our Constitution.

Of course, it's hard for it to get much beyond that when most of the senators can't get any information on the mechanics of the program itself. I do find giving any administration, be it Republicans or Democrats, virtually unlimited power without oversight in this area to be a terribly bad idea (and I think our founders felt similarly) and so ripe for abuse that I can't believe the Republicans themselves don't see why it's a bad idea. Wouldn't the ability to wiretap without oversight essentially allow the executive branch to wiretap communications of the opposing party? Sure, that's not what they claim they'll do, but does anyone really trust any politician of either the right or the left anymore? They'll take every advantage they can get. I don't know about others, but that's not something I'm really interested in.

I still don't see why FISA can't be used, or at least tweaked to fit any changes in the situation that have occurred since it was originally passed. Can anyone explain this to me without resorting to "you support the terrorists" or "this is an unconventional war" or the other usual parrot points? Do we really need to punt oversight on this entirely?
9.14.2006 8:36pm
Just an Observer:
There has developed a myth that the polls strongly support the President on the domestic surveillance program. I think I have seen all the major polling reported on the subject, most of it several months old, and the numbers pivoted around the 50-50 split depending on how the question was framed. If the question mentioned that the surveillance is warrantless, more people opposed it; if instead the question emphasized surveillance of terrorists, more people favored it.

I think a centrist consensus clearly wants terror suspects surveilled, but wants it done legally. I have not seen any polls that explicitly address the question of the legality of the spying, and I have seen no polls taken after a federal judge ruled it unconstitutional.

However, I do think there is a big apathy factor. Even though this issue and collateral issues of executive power are a deal-breaker for me, I recognize that they are not at the top of most folks' lists.

What Bush has done in the past two weeks has been to position the issue at the top, and force voters to choose. It is a classic wedge issue, aimed primarily at "energizing the base," and it will do so. (See, for example, Kazinski above.) But the other side of the wedge will push centrists to the other side of that line. If this election becomes a referendum on warrantless domestic surveillance, a lot of people outside "the base" will vote against it.

The strategy of conflating the Terrorist Surveillance Program with the newly announced Terrorist Torture Program also may backfire. The "base" may be motivated, but I doubt that the rest of the public is comfortable with that, and some Senate Republicans and popular icons such as Colin Powell are resisting strongly. The McCain amendment passed 90-9 last time around.
9.14.2006 8:39pm
Westie (mail):
Shake and Bake,
The administration has never tried to reform FISA or fix the statute's limitations (which they could have done in Patriot I or II or at virtually anytime during the last five years). Currently there is a bill sponsored by Feinstein and Specter bill that attempts to resolve some of the problems. The administration, however, opposes this bill. My view, which I guess is the accepted liberal view on the matter, is that the administration is more interested in insulating itself from judicial scrutiny and defending its view of Article II it is in establishing a legal framework for conducting surveillance in a transparent manner. What do conservatives think? Is there a good reason for not reforming FISA?
9.14.2006 8:46pm
Steve:
I think a centrist consensus clearly wants terror suspects surveilled, but wants it done legally.

There's like a unanimous consensus for this, really.

In a different time, I could see liberals or libertarians arguing that it's wrong to have wiretaps approved by a secret, unaccountable court, that the FISA court is nothing but a rubberstamp that doesn't provide real oversight, and so forth. But virtually no one is making arguments along these lines, and certainly no one in the political sphere.

Everyone thinks al-Qaeda should be wiretapped. Everyone seems to agree that if al-Qaeda calls someone in the U.S., it's fair for the government to ask why. The Democratic position is simply that it's important to maintain a warrant procedure, so that we know the government isn't doing anything more than listening in on people who get calls from al-Qaeda.

Why this can't be easily resolved is sort of a mystery. It ought to be trivial, it seems to me, to show a FISA judge "here's an al-Qaeda member overseas, here's them making a 20-minute phone call to this person in the U.S., we want to eavesdrop on that person and find out what's going on." You'd get a warrant in a heartbeat.

But maybe that procedure is too cumbersome, for some reason that's not occurring to me. Maybe there are too many people in this category (hard to believe, since the program has always been described as "limited"). Maybe the eavesdropping is time-sensitive and this procedure would just be too much work, even with the emergency provisions already contained in FISA. But again, it would be relatively trivial to loosen FISA to provide for any of this. It could have been done in the Patriot Act (back when Congress was giving the administration literally everything it wanted), it could have been done in the renewal of the Patriot Act, it could have been done at any other time.

I honestly cannot think of any reason why this problem hasn't been solved through easy bipartisan legislation - unless it's that the administration is doing more than it says it's doing, and thus can't agree to any kind of warrant-type procedure where surveillance would have to be okayed by an outsider. That's seriously the only theory that I have left.
9.14.2006 8:53pm
Daniel San:
The Patriot Act became a symbol for everything the Left and the Press feared about the Bush administration. And with a name that that, it begged to have all sorts of baggage attached to it. The details didn't matter.

To oppose the Specter bill, you have to oppose the details, and first you have to understand the details. Even starting with a name like "the Specter Bill" the eyes begin to glaze over.
9.15.2006 12:16am
josh:
I thinks it's a modified 4, demogoguery or not. I think, yes, years of discussion of made Americans less interested, but also, the center of the debate has moved. As discussed in another post, the issues raised in the Patriot Act (relating to more "common" law enforcement practices) pale in comparison to those raised by the Specter bill (Article II, Separation of Powers, the Fourth Amendment).

The modification I would make to #4 is the moving of the center. For example, the tenor of a televised talking-head debate on one of the news channels is entirely different when the Right is represented by Ann Coulter or John Hinderaker, than when a more moderate voice on the Right is presented. In the former instance, the center of the debate gets pulled to the right, as normally center positions become Left, and normally left positions become fringe.

Here, the issues raised by the Specter bill and its subject matter make potentially troublesome provisions of the Patriot Act seem quaint. [I'd prefer this comment not devolve into a debate over the merits of the provisions.] I think Democrats have objected as forcefully to both bills, but the pull to the right has simply forced them to take on what they consider most damaging to civil liberties. That's not to say the concern for the Patriot Act has waned, or that they feel it was misplaced. That's only to say that one worries more about warrantless surveillance than warrantless searches of library records.
9.15.2006 12:28am
JunkYardLawDog (mail):
So Harry Reid and the democrats are deciding how to protect americans from terrorists who want to boil the skin off of our children by having conference calls with gay Brazilian ex-patriots.

Would make a pretty funny Saturday Night Live skit. Certainly explains the strong protect the homeland strategy of we have all come to know and love in the Democrats.

Bush's poll numbers are up to 47% on the Rasmussen poll. Rasmussen was the closest to actual results of any polling organization in 2004.

The gap in the generic congressional ballot poll has also been shrinking quite a bit of late. Due to errors in how most polling organizations count the mix of democrats v. republicans and to differences in turn-out of the respective bases, these polls usually show a 8 to 10 percent lead for the democrats. In order for these polls to mean the democrats are really going to be preferred by voters showing up at the polls they need a lead in these polls of greater than 12 percent. 8 to 10 percent lead in these polls equals equality of actual turnout in the real election.

FISA should just be repealed. It is unconstitutional and it should be sent to the scrap heap of bad democrat ideas. The Spectre Bill doesn't go far enough. I lived in 1977 and in the 1960's and 1950's all pre FISA, and all perfectly happy with a government that did not intrude into my liberty or the liberty of any person I have ever known or even seen in my life.

Common Article 3 only applies to these enemy combatants based upon the brain dead ramblings of 5 out of 9 Supreme Court justices. Congress should pass legislation that directly repeals the Hamdan and Hamdi pig headed power grabs by the 5 out 9 supreme court justices and returns the law to the natural respect for the constitution and stare decisis contained in the dissents in these cases and the history of all prior decisions prior to this blatant unconstitutional power grab by the 5 out of 9 supremes.

After the 2006 election Bush should tell the 5 out of 9 Supremes and the country that the Hamdan decision applies only to Hamdan and he will not follow it or any other court decision that interferes with his constitutional duty to protect the country from foreign enemies. If that doesn't give people the right message he should take the federal judge in Michigan for a nice plane ride to Guantanamo where she can issue all the hand written orders and injunctions she cares to so do.

McCain will never be the republican nominee for President, and the days of watching his air headed lap dog Lindsey Graham pop out of McCain's arse for the TV networks are numbered.

Says the "Dog"
9.15.2006 12:41am
Steve:
JYLD, as always, you make a good case that America is not really worth protecting.
9.15.2006 3:09am
Kate1999 (mail):
I can't remember: is JunkyardLawDog a parody of the extreme right-wing, or is he being serious? I assume the former, but who knows.
9.15.2006 3:46am
Just an Observer:
One important thing to remember is that besides the Specter bill, which really has several layers of provisions, there are several other bills on the table.

In the Senate, these range from Feinstein's bill (nominally sponsored by Specter, too), which would reaffirm FISA's authority but modestly expand the government's flexibility for warrants, to DeWine's bill that would directly authorize a program of warrantless surveillance within the FISA framework. There is a similar bill in the House, sponsored by Wilson and key committee chairmen, which also shares with the Specter bill some of its proposed changes to FISA definitions.

One possible outcome is a hybrid that would somehow authorize the de facto program that has been held to be illegal, while stopping short of the capitulation to the President embodied in the Specter bill.
9.15.2006 8:52am
JunkYardLawDog (mail):
Steve your response reflects the democrat hate america first approach to everything quite well. Those who pay attention to things have realized the liberal national democrats would rather destroy the country than allow it not to be forced to become the christian/european heritage hating, multi-culturalist (code for "its all whitey's fault"), the constitution is subservient to the whims of 5 out 9 judges reading undemocratic international laws written well after the words of the constitution they are "supposedly interpreting", socialist (code for dictatorship of the elite leftists), workers paradise they try so hard every day to create.

What exactly is it that I wrote that makes america not worth saving in your opinion?:

1. That I agree with the thinking of only 4 out of 9 of the Supreme Court jusices in Hamdan?

2. That I express support for stare decisis in the area of presidential war times powers?

3. That I advocate the horror that the law should returned to the state it was in in 1977 and for the 201 years of our history prior to that as regards FISA?

4. That congress should pass legislation that supports the view of 4 out of 9 Supreme Court justices and stare decisis in this area of presidential war time powers?

5. Or was it the political observations that Bush is gaining in the polls and the democrats might not take control of either house of congress in 2006?

I realize all of these points are such an awful abridgment of human rights and Kofi Annan's personal dignity that they would render the entire USA and all its people not worth saving from a bunch of bigoted racist muslim fanatics who worship the centuries old works created by a deposed Iranian prince and a petty criminal stooge as a means to gain political and material power in their own time, but which of the above horrors of horrors is it exactly that caused you to opine the USA isn't worth saving?

Kate1999, which of the above positions as expressed in my original message is so whacky and off beat that they must be parody in your close minded view of political and judicial thought? Get out of your echo chamber more and you might hear some opinions that differ from your own a bit more often.

Says the "Dog"
9.15.2006 11:30am
Kate1999 (mail):
JYLD,

Surely you must be a parody. I'm a loyal Republican, almost always vote republican, and give money to Republican candidates, but you always give the most moronic and over-the-top absurd answers that you can't actually be serious.

Consider how you begin your response above:

Steve your response reflects the democrat hate america first approach to everything quite well. Those who pay attention to things have realized the liberal national democrats would rather destroy the country than allow it not to be forced to become the christian/european heritage hating, multi-culturalist (code for "its all whitey's fault")

Democrats hate America? Rather destroy the country? I guess I'm assuming that you're not this dumb, so the parody explanation is much more likely. It's pretty good as parody, I just want to make sure we understand that it's a parody.
9.15.2006 12:23pm
Anderson (mail) (www):
JYLD's not a parody, just a card-carrying member of The Twenty-Seven Percent.

John: Hey, Bush is now at 37% approval. I feel much less like Kevin McCarthy screaming in traffic. But I wonder what his base is --

Tyrone: 27%.

John: ... you said that immmediately, and with some authority.

Tyrone: Obama vs. Alan Keyes. Keyes was from out of state, so you can eliminate any established political base; both candidates were black, so you can factor out racism; and Keyes was plainly, obviously, completely crazy. Batsh*t crazy. Head-trauma crazy. But 27% of the population of Illinois voted for him. They put party identification, personal prejudice, whatever ahead of rational judgement. Hell, even like 5% of Democrats voted for him. That's crazy behaviour. I think you have to assume a 27% Crazification Factor in any population.

* * * [technical discussion omitted]

John: You realize this leads to there being over 30 million crazy people in the US?

Tyrone: Does that seem wrong?

John: ... a bit low, actually.


Polls have borne this theory out rather well, thus far ....
9.15.2006 1:08pm
JunkYardLawDog (mail):
Kate1999


but you always give the most moronic and over-the-top absurd answers that you can't actually be serious.


Which of the numbered points in my response above is moronic and over-the-top? Please identify specifically which one. I'm interested in knowing since those positions agree, basically, with 4 out of 9 supreme court justices exactly which one you as a good republican consider to be moronic and over-the-top.


Consider how you begin your response above:

Steve your response reflects the democrat hate america first approach to everything quite well. Those who pay attention to things have realized the liberal national democrats would rather destroy the country than allow it not to be forced to become the christian/european heritage hating, multi-culturalist (code for "its all whitey's fault")

Democrats hate America?



A little hyperbolic perhaps, but far more truthful than anything that proceeds from the mouths of Harry Reid and Nancy Pelosi and their ilk.

Do democrats hate America you ask? The national democratic party through its leadership continually and constantly support policies that would weaken America, would destroy or seek to damage its culture and heritage, that prefer union power over children's educations, that would result in less defense, more crime, fewer jobs, etc etc etc. Do they hate America in their hearts and minds or are they just so completely stupid and insipid in their thinking? It doesn't matter, they are known for what they do, and these national democratic party leaders are corrupt tools of a dictatorial leftist mindset advocating policies solely for the preservation of their own power and do so with the full knowledge of the harm their policies will do to the country and its culture.

What's moronic Kate1999 is your inability to observe and understand that which is in front of you.

If taking the truth as parody helps you cope with the scarry truth, that's your decision. It won't make the burglar leave your home while you cower in the corner hoping for the mercy of the burglar, and it won't make the truth about the national democratic party leadership any less the truth.

Anderson


They put party identification, personal prejudice, whatever ahead of rational judgement.



When I read this statement I thought you were talking about such things as the blacks who line up to vote for the former grand wizard of the KKK Senator Byrd or line up to vote 90% for the "yellow dog" that has the democratic party position on the ballot, insert state, insert county, insert election here.

As for the rest of your little auto-masturbatory *discussion* its nothing new or particularly thoughtful or inciteful. Its just a retread of the old tried and true liberal line that "we are the smart elite and anyone who doesn't agree with us must be in need of a mental hospital or a re-education camp because only the stupid or insane could possibly fail to recognize the preeminence of our intellects and policy analyses". Stuff that is repeated ad infinitum on such hallmarks of intellectual discourse as the democratic underground.

As for me I don't vote straight party line. I would easily vote for a Zell Miller democrat, and I would have no problem voting for Rudy Giulliani, even though I disagree with his views on abortion and gay marriage (he would need to promise to appoint only conservative judges to the courts however), and I would never ever under any circumstances vote for John McCain or Linsey Graham, even if that meant president Hillary would result. Who was the last Republican that you voted for in a presidential election Anderson. You decry mindless party line voting so enlighten us with the name of the last Republican presidential candidate for whom you voted??

Says the "Dog"
9.15.2006 1:44pm
JunkYardLawDog (mail):
Kate1999,

Steve makes the comment "America isn't worth saving" and I respond this is the hate America first position, and the part of that exchange that *you* find offensive enough to be worthy or your time for a comment is that *I* said Steve espoused the "hate america first" position.

What is it that's hard to understand about hating America when a person opines "America isn't worth saving"??

Yeah, you vote Republican all the time. Right. Where, in Rhode Island or Maine? LOL

Says the "Dog"
9.15.2006 1:51pm
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx:
Reid looks to be trying to stay in the minority. His obstructionism on a this will not be popular and the GOP will tar the Dems with this as one more example of the Democrats refusing to get serious about national security.
9.15.2006 2:20pm
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx:
JYLD,

Great comments. You understand the issue and that national security is the only issue that really matters these days. Why the Democrats want to defend terrorist privacy over security shows where their loyalty lies. The extremists at the ACLU and CAIR.
9.15.2006 2:28pm
Steve:
I quite obviously didn't say that America is not worth saving. I said the "Dog" had made a good case for same, which he continues to do. I thought this was perhaps the most compelling component of his case:

After the 2006 election Bush should tell the 5 out of 9 Supremes and the country that the Hamdan decision applies only to Hamdan and he will not follow it or any other court decision that interferes with his constitutional duty to protect the country from foreign enemies. If that doesn't give people the right message he should take the federal judge in Michigan for a nice plane ride to Guantanamo where she can issue all the hand written orders and injunctions she cares to so do.

The part where he said we should return the law of electronic surveillance to the state it occupied for "201 years of our history" was also compelling, although in a different way. I'd also note that humanity got by for thousands of years without regulating the Internet and I don't see why we should suddenly start now.

Kate, I do feel your pain. It's not that there are ranting extremists out there - everybody's got 'em - but that we somehow exist in a political environment where the crazies think they might actually get what they want. As a Democrat, I've often said that I can't wait for the day when I can vote for a Republican again.
9.15.2006 2:39pm
Medis:
Picking up on a point raised by JaO, I've been struck at how the warrantless wiretapping issue has been folded into the abusive interrogation issue (for example, I was interested to see that while Matt Lauer was trying to pin down the President on matters such as waterboarding, the President tried to bring up the surveillance program). So, I think that is where a lot of the political energy in this area is going right now.
9.15.2006 2:40pm
Jimmy (mail):
What I don't understand is how the President keeps on insisting that these unfettered surveillance policies, with less and less oversight, are useful to prevent terrorism.

It has been confirmed now that our existing agencies had the info they needed, going through the existing channels on their existing budgets, to help prevent the attacks. What had hindered them was not sight-unseen surveillance approval but a simple lack of communication and agency infighting. I don't understand how this legislation will cure that ill.

We let Hoover's FBI do whatever the hell they wanted to back in the day, and J Angleton of CIA had full run of the agency, with no oversight to speak of, and they still missed the boat on most of the pressing issues of the day, while creating world-wide messes that we are still cleaning up.

Whether the party in charge be the incompetent left wing or the authoritarian right wing, accountability and oversight are the only things that keep them in check and might actually help prevent a disaster instead of merely recording it for history.

Dave Barry said it best - You have a flat tire. A Democrat driving by will stop to help you, but end up setting the car on fire. The Republican will know how to fix the tire but is too busy on the way to Ugly Pants Night to stop to help.

The "islamofacists" want a country where there is no accountability or oversight except by their clerics and militias. The "right wing extremists" want a country where there is no accountability or oversight except by their executive and secret police. The "liberal conspiracy" want a country where there is no accountability or oversight except by their intellectuals and judiciary.

I thought the bit where Bush said the military had to stop torture, but the CIA wouldn't be bound by those rules was funny. Did you want your beatings in a military prison or a secret military prison?

I feel that many people would be more accepting of extra surveillance if there was proper oversight, and if we felt that the arrests would lead to actual convictions. McCain got tortured, and he simply lied to his interrogators to get out of the beatings. I think most, if not all, tortured people would do the same.

Now, would I vote for McCain? Nope. Would I vote for Hilary? Nope. Just because I disagree with one or the other, it isn't an simple left/right answer. Neither side is offering a solution, my car's tire is still flat and the other tires are getting low on air.
9.15.2006 2:43pm
Medis:
Jimmy,

I absolutely agree, and I wouldn't want the Democrats entirely running the show either. Fortunately, I think good things can happen when Republicans and Democrats genuinely work together (metaphorically, I guess the Democrats can stop the car, and the Republicans can actually change the tire). The McCain Amendment is one example, and there are also bipartisan bills dealing with electronic surveillance (such as the Specter-Feinstein bill).
9.15.2006 3:21pm
JunkYardLawDog (mail):
Steve,

Having problems with separating the humorous color I provide from the substantive matters. I responded with a numbered outline of the substantive parts and asked you to tell which of those numbered items caused you to feel America wouldn't be worth saving.

In your response above you focus mostly on the color in the first message and not at all on the substance I numbered for you in the second message. However, you did, perhaps without realizing it, provide one numbered item as an example of what would make the USA not worth saving. You identified item 3 from my list about returning the USA to the law as it stood for 201 years from its founding through 1977 as an example of something that would make the USA not worth saving.

So again here we have Steve clearly demonstrating what he really thinks. He thinks that the USA from the date of its founding up and until the wholly incompetent anti-american democrats led by the entirely incompetent and overwhelmed Jimmy Carter passed FISA, that for this entire 201 year history prior to FISA that America Was Not Worth Saving. We know this because he has clearly and without equivocation stated that as a democrat a return of the law to the state it was in prior to FISA 1978 would render the country not worth saving.

And then the Democrats complain when conservatives rightly point out that they always respond to things with the answer that is based upon the world view that whatever is the problem its the USA's fault and in all likelihood the USA is at fault because some white males in the USA want it that way.

Hate America First Steve. If the shoe fits...

Says the "Dog"
9.15.2006 3:32pm
Steve:
He thinks that the USA from the date of its founding up and until the wholly incompetent anti-american democrats led by the entirely incompetent and overwhelmed Jimmy Carter passed FISA, that for this entire 201 year history prior to FISA that America Was Not Worth Saving.

Yeah, that's what I think.

We know this because he has clearly and without equivocation stated that as a democrat a return of the law to the state it was in prior to FISA 1978 would render the country not worth saving.

Yeah, that's what I said. Good call.

If I said you make a good case for forced sterilization, would it make my point clearer?

Incidentally, FISA was passed in the Senate by a vote of 95-1. Wow, that's a lot of anti-Americans! But extremists never let the facts get in the way of a good rant.
9.15.2006 3:39pm
Kate1999 (mail):
JYLD,

My primary interest is in figuring out if you are a parody, as is widely believed by VC readers.

Based on your most recent posts, you seem to be recognizing that your own prior statements are hyperbolic and nonsensical. For example, when you attempt to defend your earlier statement that Democrats in their heart really hate America, you now say "it doesn't matter," and you reformulate the question into whether in your personal view Democratic policies are bad for America. Surely you can see that the question of whether A "hates" B and whether A, in an effort to help B, ends up doing something that you think is harmful to B are two very different inquiries; I gather you have to conflate them to avoid just being honest and acknowlegding that your prior statement was a lie.

The important thing about your response, for my purposes, is that it seems like an honest effort to weasel out of your earlier lie. So that suggests that perhaps you are not a parody, as I think a person trying to write a parody would probably not try to weasel out in that way.
9.15.2006 3:41pm
Kate1999 (mail):
I should also add a special note to liberal readers of this comment thread: Please don't think we Republicans are like JYLD. Most of us are reasonable people just trying to do what's best for America.
9.15.2006 3:43pm
Just an Observer:
I think itis important to reiterate Orin's original point, which observed that big changes to the FISA statute are on the verge of adoption without serious consideration.

The majority's vehicles on the table -- the Specter bill (S 2543) in the Senate and the Wilson bill (HR 5825) in the House -- actually would make far-reaching changes to FISA that go beyond legalizing the de facto warrantless surveillance of suspected Al Qaeda affiliates.

One provision common to both bills is a redefinition of the scope of electronic communications covered by FISA. Although that is not all the bills would do, it is itself a fundamental policy change, satisfying part of NSA's institutional wish list preceding 9/11. The change does happen to overlap with the particular program that today has been held to be unlawful, and seemingly would go a long way toward allowing such surveillance even if the other provisions of the bills -- themselves major departures motivated by anti-terror efforts -- are not adopted.

These major policy proposals did receive short hearings in the Senate and House Judiciary committees, with high-ranking administration witnesses, but the hearings received very little coverage. To the extent the mainstream press cares at all, it only seems to care about the nexus to the current controversy. I have yet to read a description of these bills in any "newspaper of record" that accurately describes their provisions.

So to some extent, Orin's post can be interpreted as a justified lament that politics overwhelms substantive policy in our collective attention.
9.15.2006 3:49pm
Medis:
Kate1999,

Although I wouldn't necessarily describe myself as liberal, I am not a Republican (nor a Democrat, however).

Anyway, I am well aware that most Republicans are not the sort of extremists represented by JYLD and some others here. And I am also well aware that the Democrats have their own extremists in their coalition. But I think one big problem for the Republicans right now is that the more extreme elements of their coalition have disproportionate influence on the party leadership, in part because of the Rovian strategy for winning elections, but also in part because Bush and Cheney themselves have taken pretty extreme positions on certain issues (perhaps not surprisingly, mostly on issues which involve their own personal power).

So, while I sympathize with more moderate Republicans, and while I may well be voting for moderate Republicans in the future, the fact is that moderate Republicans who remain loyal to their party given current conditions are in fact providing a great deal of power to some pretty extreme people.
9.15.2006 4:01pm
srp (mail):
The NSA thing is going forward so far because most people don't think that FISA rubber-stamp warrants matter anyway, and they support what they know about the surveillance program (which may or may not be enough to judge it). Most normal people simply aren't worried about some NSA guy hearing them talk dirty on the phone. Most people really didn't care about this before FISA, when Hoover was widely known (and joked) to be eavesdropping on everybody and to have files on every important politician. This view may be short-sighted, but it explains why intercepting international calls doesn't exercise people very much.
9.15.2006 4:09pm
Kate1999 (mail):
Thanks, Medis. But see John Warner.....
9.15.2006 4:21pm
Medis:
Kate1999,

I am very glad that Warner and others like McCain and Graham are not willing to give the Administration the laws that they want. But conversely, I don't see these Senators doing anything to actually enforce the laws that we have, and indeed the Warner-McCain-Graham Bill would make it practically impossible for the relevant laws to be enforced in many cases.

And that is the fundamental problem: Bush and Cheney have an extreme view of their own power which includes the claimed authority to operate outside the law when they deem that doing so is necessary. So, they cannot be effectively checked by laws, no matter what those laws say, if Congress is unwilling to enforce those laws, and Congress is also unwilling to let the courts enforce those laws.

Consequently, no matter what good intentions the likes of Warner and others may have, and no matter what standards they write into law, those good intentions and those laws are ultimately meaningless if the Republicans retain control of Congress and continue to excuse the President whenever he chooses to operate outside the law.
9.15.2006 4:46pm
JunkYardLawDog (mail):
Kate1999,

Well at least you've managed to figure out one thing. I write what I and a majority of Americans believe, and it ain't parody. There was no lie. Liberals consisently "hate America first" that's a fact, I really don't care whether you agree or not. I'd just as soon you become a democrat. Please name the last republican president for who you voted? I think you are already a democrat.

Medis, the extremists are those in control of the democrat party like Howard Dean, Union Bosses, and the ACLU. What happened to Lieberman is a perfect example of the extremist elements in charge of the national democratic party.

Bush isn't all that conservative. Cheney is a conservative. Neither or them are extreme. Their view of presidential power is support by 4 out 5 supreme court justices. That isn't the definition of extreme. Cheney is a plain spoken down to earth regular good fella square in the middle of mainstreet USA.

Cheney is the most competent person in the country by experience and disposition to be the next President. Sadly I don't expect him to run.

Kate1999, Warner is a pompous arse; McCain is a lose cannon that left most of his senses in Hanoi. There are a lot of war heros and people who served in the military, and to a man almost 100% of them are not qualified by disposition or intellect or experience to be commander in chief or President. Lindsey Graham is an intellectual lightweight who thinks by sucking McCain's knee caps he will get a good job in a future McCain administration. Lindsey is the kind of idiot who thinks his experience as a low level JAG officer in the military makes him policy and legal genius on these matters of foreign affairs and commander in chief policy. Yeah like showing up to make a plea deal for some drunken sailors who got in trouble on board a ship or in port or writing a will for a guy with no real property and a total income less than $25,000 year is the kind of experience that makes one a constitutional scholar and policy analyst. If he wasn't screwing up the country with his incompetence and highly inflated ego he would be just somebody to pity or laugh at depending on one's mood.
Being a JAG officer is such good legal experience that is why the top graduates of the top law schools fight fiercely over getting a JAG appointment.

McCain wouldn't be able to play the role of the crazy loose cannon spoiler if the Supreme Court hadn't made such a crazy power grab ignoring all prior precedent and the statutes passed by Congress in Hamdi and Hamdan. These 5 out of 9 crazy judges on the Supreme Court are more worried about what Kofi Annan thinks than what the Constitution and Stare Decisis demands.

Says the "Dog"
9.15.2006 5:57pm
Medis:
JYLD,

By the way, I still think you are a parody. But carry on.
9.15.2006 6:03pm
Steve:
I write what I and a majority of Americans believe, and it ain't parody.

I don't think I've known anyone from the far left since college, but at least they didn't delude themselves into thinking that their views were in the majority.

As I said above in reference to the far right, "It's not that there are ranting extremists out there - everybody's got 'em - but that we somehow exist in a political environment where the crazies think they might actually get what they want."

It's useful to be reminded every once in a while that people like JYLD are out there, though. And it's useful to be reminded that, at least in the present state of things, every time you vote Republican there are all these little JYLDs out there who take your vote as proof that you are part of the "majority" which agrees with them on everything.

Dick Cheney's approval ratings consistently hover around 20%. JYLD believes "Cheney is a plain spoken down to earth regular good fella square in the middle of mainstreet USA" and argues "Cheney is the most competent person in the country by experience and disposition to be the next President." Yet he honestly believes a majority of Americans share his outlook! It must be those darn liberal pollsters.
9.15.2006 6:06pm
Anonymous Reader:
You know, sometimes you have to argue in the extremes in order to encourage discussion. But like most things, it's a double edged sword.

Now, I am honestly very confused about the Geneva Convention Art III situation that the politicos are "arguing" over. Can someone explain that issue? I know that it's OT, but let's keep this informative.

Anonymous Reader
9.15.2006 6:08pm
JunkYardLawDog (mail):
Medis, you're thinking I write parody is really a sign of your own self-delusion so to speak. Its just a variant of the old tried and true "we liberals are the smart ones with understanding and knowledge, and therefore anyone with views strongly different from our own must be insane or stupid" or a smart liberal pretending to be a non-liberal in order to make fun of those who refuse to comply with the required liberal thoughts.

It is this self-delusion that leads you to incorrectly think my views are a parody, instead of understanding they represent good old middle american mainstreet USA values.

Says the "Dog"
9.15.2006 6:09pm
Just an Observer:
Anonymous Reader,

Lest this thread about FISA get totally hijacked over the merits of the Geneva Article 3 issue, I would refer you to Marty Lederman's analyses at Balkinization. He has been on top of this issue like a duck on a junebug.

Marty's latest post is found here: At Last, the Issue is Publicly Joined . . . and When All the Smoke has Cleared, the Central Question is Quite Simple
9.15.2006 6:16pm
Anonymous Reader:
Steve,

That's the beauty of a democracy. In a democracy, everyone gets to speak. Not to say everyone has to be listened to, but everyone gets the opportunity to be heard.

Anonymous Reader
9.15.2006 6:21pm
Medis:
JYLD,

Of course, there are many real people here who I disagree with all the time.

But I don't want to ruin a good joke, so I will let you have whatever last word you choose.
9.15.2006 6:22pm
Medis:
By the way, I want to be clear that I believe that there are real people who think like JYLD--I just don't think that includes JYLD himself.
9.15.2006 6:26pm
Steve:
That's the beauty of a democracy. In a democracy, everyone gets to speak. Not to say everyone has to be listened to, but everyone gets the opportunity to be heard.

Oh, sure! We all have the right to be wrong, as my wife constantly reminds me.
9.15.2006 6:27pm
JunkYardLawDog (mail):
Steve, so your wife is a Cheney Republican then ? (smile)

Says the "Dog"
9.15.2006 8:53pm
Eli Rabett (www):
How about that the Congress did not give the President a very hard time on the Patriot Act renewal, or is anything less that yes sir lese majesty?
9.15.2006 8:56pm
Kate1999 (mail):
JYLD,

Based on your latest comments, I now am back to thinking you're a parody agan. There are two options 1) you're a parody, or 2) you're an idiot. I guess I go with parody.

Oh, and the last GOP president I voted for was George W. Bush, the current President of the United States.
9.16.2006 3:57am
Just an Observer:
If I might generalize from Kate1999's personal example -- and the symbolic example of JYLD, fictional or real -- I think there is a lesson here about the kind of divisive wedge-issue politics practiced by Bush and his team.

I consider myself a judicial and legal conservative (strongly supported Roberts and Alito, opposed Miers); I think the current Supreme Court would vote 8-1 or 9-0 against the Bush/Cheney/Addington/Yoo theory of constitutional executive power; and I think the political consensus had it right in 1978 when Congress overwhelmingly enacted FISA. I also believe strongly in the rule of law and judicial review, and am appalled by the way this administration thumbs its nose at such principles.

So when the White House makes its position the party line, that leaves me on the other side. This time I will vote for whoever the other party puts up at all levels, just to help restore some checks and balances.

Anecdotally, I know several persons who are "conservatives" of one stripe or another but who are ashamed of this President's record regarding the "war on terror" and related issues. My own quite conservative church congregation -- which probably voted 90 percent for Bush in 2004 -- includes several persons who now feel as I do.

So whether JYLD is real or not (I think he is), his persona does reflect the real Bush/Cheney/party position at the moment. The President himself conflates surveillance and torture issues for political purposes, and I can hardly believe he so brazenly takes the stand he does to rationalize breaking the law in both matters.

Overall, I think Bush may have driven the wedge much too close to the edge this time.
9.16.2006 10:05am
Medis:
JaO,

I might also add that I think fewer and fewer people are willing to accept the word of Cheney and Co when it comes to what constitutes effective tactics and strategies.
9.16.2006 12:01pm
JunkYardLawDog (mail):
Kate1999,

Well you're almost right. One of us is an idiot, but I suspect we differ on which of us fits that description.

JaO and Medis and several others here provide reasoned and principled posts. I happen to disagree with their reasoning and their principles quite often, but I enjoy their informative posts.

JaO, I find it humorous to see talk about wedge issue politics since the class warfare demogogues of the democratic party have specialized in specious wedge issues that are harmful to the country (deliberately so I might add) for many decades.

Says the "Dog"
9.16.2006 2:18pm
JunkYardLawDog (mail):
JaO,

BTW, Bush doesn't support torture and never has. You are conflating aggressive questioning techniques with torture. Standing on a box, rock music, women interrogators, women not wearing burkas, women with educations and authority, very cold and very hot rooms, and sleep deprivation are not torture. Personally, I would include waterboarding in the not torture category as well.

North Vietnam was a signatory to the Geneva conventions and McCain was not an illegal enemy combatant. Did keep him from getting tortured until he lost his mind however, and bringing some sanity and clarifying enabling language to the extremely vague (so vague they would be unenforceable in an american court of law on any other issue) language of common article 3 bullshit would not further endanger our soldiers in any manner. This is a purely false canard being raised by McCain for some completely unknown to sanity reason.

Says the "Dog"
9.16.2006 2:24pm
Just an Observer:
JYLD,

No one believes that those held in the CIA secret prisons cracked because they were exposed to women without burkas. Bush's "alternative set of procedures" almost certainly included techniques that, if not "torture" as a legal term of art, certainly violated the law. That category includes serious physical abuse such as hypothermia, enforced stress positions, waterboarding, etc.

Just saying it's not torture is like rationalizing 2nd degree murder because it is not a capital crime. These techniques are not just morally repugnant, they are illegal under international and federal law.

That is precisely why Bush now seeks legislation to change the law -- to legalize what has been illegal.

As for the politics, some voters like you will find this acceptable. Many others won't. "Not quite torture" is not a great campaign slogan with centrist appeal.
9.16.2006 3:08pm
JunkYardLawDog (mail):
JAO,

We just disagree. You make no attempt to say that common article 3 is NOT so vague as to be unconstitutional and unenforceable as a criminal statute in this country on any other issue. That's because its impossible to claim it isn't unreasonably vague. If congress wants to clarify it and outlaw all the types of things you want outlawed that is there perogative and then the voters can hold them accountable for there decision making, but for congress or in this case 3 to 6 crazy ass republican senators joining with the democrats against their own party want to keep things dilberately vague so that the vagueness outlaws, in effect, everything without them having to actually vote on what should be allowed and what shouldn't is just crazy chickensh*t playing politics and hide the cheese from the voters.

If they want all these things outlawed as do you, then they should list all these things and say they are torture under common article 3. Instead they want to have it both ways which is very offensive and in this case down right dangerous.

Instead of "not quite torture", these 3 to 6 senators and 100% of the democrats' motto/campaign slogan would be:

"your children's lives - if they die at least you'll know their killers had been questioned to full extent the lawyers you paid to provide them would allow"

versus

"not quite torture for them, and life for your children"

I don't think its hard to tell which of the two slogans above is the more rational or would be applauded by the most voters.

Staying in a cold room or hot room or having to listen to rap music or being questioned by a woman not wearing a burka. These things are NOT torture. They are not even close to "not quite torture" as you called them. Goughing out eyes, burning with a blow torch, cutting off fingers, while things many of these killers DESERVE would be torture and we don't torture. There is no comparison to having to stay awake and watch a Lucy rerun to real torture, except in the mind of a small minority of irrational self-hating liberals.

If you and McCain and Lindsey Graham and 100% of the democrats want to define sleeping in a cold room or being forced to watch I love Lucy reruns as torture or being questioned by women as torture then they should write down all these things on a list and have the guts to stand up a vote for these things item by item being forbidden as torture. But insisting on undefined and undecipherable vague language as a means to ban all these things without having to list them and vote for them one by one as torture is just the cowards way. McCain and Lindsey are COWARDS on this issue, along with 100% of the democrat party.

Says the "Dog"
9.16.2006 7:33pm
Medis:
BTW, the Army has already done the necessary work to define detainee/interrogation procedures which comply with existing U.S. law and treaty obligations. So, the simple solution for the President, if he truly desires clarity, is to just adopt the revised Army Field Manual and accompanying directive for the entire U.S. government.
9.16.2006 8:00pm
JunkYardLawDog (mail):
Medis, those procedures are not intended and never were intended for questioning of illegal enemy combatants.

Again, is or is not the language of common article 3 unconstitutionally vague if it were a USA criminal statute in any other area.

Again, let's all on both sides have the courage to stand up and specifically vote up or down on a serious of one sentence propositions:

1. Is being forced to stay in a cold room torture? Yes or No.

2. Is being forced to stay in a hot room torture? Yes or No.

3. Is being questioned by a women not wearing a burka torture? Yes or No.

4. Is being forced to stay awake and listen to modern rap music or watch I Love Lucy reruns torture? Yes or No.

5. Is waterboarding torture? Yes or No.

Senator Frist should quickly push through a series of one page bills each one containing basically just the above question/declaration and force a floor vote yes or know by all democrats and republicans to vote yes or no for each separate question above? Nothing would force the roll over of many democrats on this issue then if they were forced to vote yes or no on what should specifically be allowed and should not be allowed in questioning illegal enemy combatants.

Says the "Dog"
9.16.2006 8:13pm
Just an Observer:
JYLD,

I don't want to hijack this thread into a discussion about the War Crimes Act and Geneva Article 3, but let's keep the facts straight. That act -- passed by a Republican Congress 10 years ago, BTW -- has always referenced the Geneva standard. The military has had no problem enforcing and training to that standard all along, even before the act. In fact, the Pentagon's new field manual does so with specificity.

It is a complete red herring for Bush to claim he is seeking "clarity." (One giveaway is his refusal to discuss the specifics of whatever torture-lite techniques the CIA actually has used.) Rather, he is seeking to legalize acts that now are clearly illegal.

Whatever they are, the interrogation techniques have 'sbeen found by Bush own lawyers to out of compliance with the Article 3 standard, which is why "the program" had to be suspended. So Bush now desperately seeks to amend the statute's reference to Article 3. The only fig leaf was the controversial claim that Article 3 did not apply. Once the Supreme Court ruled otherwise -- I know you disagree with Hamdan, but it is the law of the land -- there was not even a colorable argument that our interrogation practices have been legal.

I think Congress likely does have the authority to redefine our interpretation of Geneva. But I think it is horribly bad precedent for reasons much bigger than the current situation, and a lot of mainstream military leaders do, too. Our military is there for a lot of things besides chasing terrorists, and so is the Geneva Convention.

Once again, to bring this discussion back to the overall question about politics, I think the centrist consensus favors the position articulated by Warner, McCain, Graham and Powell. The vote for the McCain amendment last year was 90--9, and that was no fluke. The public was relieved to think the matter was settled then. As political strategy today, I think, the White House has made a big blunder to make the Terrorist Torture Program a centerpiece of the 2006 campaign.

(I know I am taking license with that label, but so did Bush's people when they made up the title of the Terrorist Surveillance Program. This is politics, after all.)

So far, Bush and Cheney have been running this campaign only against Republicans. Meanwhile, watching the standoff between the chickenhawks and the real war heroes makes great theater.
9.16.2006 8:27pm
Medis:
Just a factual point: the recently released revised Army Field Manual and accompanying directive, to which I was referring, specifically addresses our GWOT detainees.

In general, Common Article Three was always intended to provide a minimal set of protections for those not entitled to POW status. So, the Army's approach is not new, but rather the Army is simply returning to the position that it and indeed the entire U.S. government had been advocating around the world for many decades, right up until Bush and Rumsfeld decided to issue the decidely unclear orders which led to this mess.
9.16.2006 8:42pm
JunkYardLawDog (mail):
JaO and Medis,

You are missing a couple of very important points. The army field manual defines treatments that go above and beyond what *the army/congress* thinks common article 3 would require. Bush and the people of this country are entitled to have a standard devised for the CIA (not the Army) interrogations of special situations that does NOT go above and beyond our understanding of the common article 3 standards.

Further, and more importantly, the extreme vagueness of common article 3 leaves CIA and government personnel possibly subject to criminal prosecutions by highly anti-american, almost pro terrorist, socialist and dictatorial governments and their corrupt/biased judges and prosecutors. These *foreign judges and prosecutors* would be free to allege violations of the common article 3 extremely vague standards for literally such things as keeping them in a cold room or making them listen to rap music or having them questioned by a woman which is considered a huge affront to their personal dignity, you name it. Plus these al Qaeda murderers are trained to lie about how they are treated and these lies would be and are today eaten up and spit out by every anti-american media outlet and local judge/prosecutor from the New York Times and New York City to Spain, Belgium, and France.

Therefore, it would be INSANE for any 24 year old CIA operative in the field to do more than ask an Al Qaeda criminal what color pillow they want to match their bedroom color theme without CLARITY in the standards of what can and can't be done and what is and isn't required by the treaty obligations of this country. Congress has every right to clarify via enabling legislation our treaty obligations. It is a COMMON procedure; its done all the time; and doing it is in no way a withdrawal from the treaty being clarified through the enabling legislation.

We owe it to the people who are seeking to save our lives to provide them the exact same CLARITY of standards that the ACLU and both of you would require for the average multi-murderer when facing charges under a criminal statute.

Finally we owe it the citizens of this country to provide the kind of protection that is afforded by these aggressive questioning techniques. The lives of our children deserve NOTHING less at a time of war.


Both of you have still failed to address and argue whether you believe the language of common article 3 would be unconstitutionally vague and unenforceable as a criminal statute covering any other matter in this country. I and both you know that it is exactly that vague. Yet for your own political reasons you want the men and women who are fighting overseas and questioning these illegal combatants to be subject to the whims of the socialist/dictatorship foreign courts/prosecutors and goverments that are so virulently anti-american in all things.

The bottom line is do you want the aggressive questioning techniques to go forward or not. Both you say not. I and the majority of americans when asked this question say yes.

Says the "Dog"

P.S. 4 out 9 Supreme Court justices think common article 3 doesn't apply to these criminal illegal combatants and any reasonable person reading the language of the common article 3 and the flat statement that it DOES NOT apply to international conflicts would think that the war on terror and battle against al Qaeda would be ruled NOT international in character by some crazy old farts on the Supreme Court. Mostly the same crazy old farts that think the words public use means corrupt local city councils stealing land from the poor and giving it to the rich for the private use of the rich developer.

P.P.S. McCain has some military credentials, just no good judgment or sense on this issue. Lindsey Graham has as much military credentials as the local assistant prosecuting attorney in small county of your choice South Carolina has constitutional scholar credentials.
9.17.2006 1:19am
JunkYardLawDog (mail):
Another possible solution to this matter would be for Congress to pass legislation that makes it clear that the GWOT and the fight against al Qaeda is of INTERNATIONAL character and that common article 3 of the geneva convention does NOT apply by its very terms to these matters. Then we aren't even clarifying any treaty obligation (or redefining it as the left likes to mistate the case), but merely correcting the erroneous ruling of the 5 crazy old farts on the Supreme Court by making it clear that the GWOT is an international conflict not subject by the very terms of common article 3 to the provisions of common article 3.

Says the "Dog"
9.17.2006 1:31am
fishbane (mail):
JYLD,

I think you're only firing on 5 cylinders. While you hit the UN and vaguely mentioned Roe, you haven't yet worried about the darkies, or talked about flourides in the water. I'd hope for a tie in as to why the gay marriage will make good Mormons start taking up relations with turtles and how that helps the terrorists, but I feel that that's too much for which to hope. Have a soda and re-read the talking points and come back, OK?
9.17.2006 1:06pm
JunkYardLawDog (mail):
Fishbane,

Save your bigoted thoughts, prejudices, and pretentious stereotypes for somebody who actually gives a flying F* about the thoughts of the silly and unserious, such as yourself.

Comments like yours are walking proof, so to speak, of all my rants about the narcissistic self-important elitist imbeciles of the left who find it inconceivable that any person could seriously disagree with their superior thinking on all issues.

Says the "Dog"
9.17.2006 2:50pm