Bill Kristol Smokes Crack and Writes a Column

I'm open to other explanations of Kristol's mess of an attempted justification for George Bush by-passing statutory restrictions on wiretapping, but that one seems to fit pretty darn well.

It really helps to have a radically altered perception of reality to argue, as Kristol does, that the Foreign Intelligence Surveillance Act somehow hamstrings the chief executive's pursuit of actionable intelligence. The Foreign Intelligence Surveillance Court is a virtual rubber-stamp for wiretap requests, particularly of the sort Kristol spins out. A senior al Qaeda operative's cell phone contacts in the U.S. would not pass muster with the court? Get off the horn Bill, that's shit is making you talk crazy.

Not enough time to get a warrant? Initiate the wiretap immediately and then go get a warrant retroactively, that's an option too. Nope, the president has unlimited authority in such matters and does not require any manner of judicial review. Ah, yes it is "foolish and irresponsible" to dwell on this point. Could it be that unlimited presidential authority is precisely the point, exactly the principle that this administration seeks to advance?

If America is going to a have a chief executive who may unilaterally, by virtue of his oath of office, investigate, detain, and jail anyone, anywhere that the chief executive deems to be a threat to the state and to society, it would be nice if we could comment on that development without being snorted at and insulted.

A further question: Are there any kinds of wiretaps that the president may not order? Why?

Comments

Jim Walsh | December 20, 2005, 4:01pm | #

It's still not as wacked as Rush Limbaugh's attempt to draw parallels with Lincoln's suspension of civil liberties...

kmw | December 20, 2005, 4:02pm | #

At this point I have no choice but to believe that all these writers are on the Bush payroll.

quasibill | December 20, 2005, 4:04pm | #

"Could it be that unlimited presidential authority is precisely the point, exactly the principle that this administration seeks to advance?"

Kudos, Jeff, for identifying Kristol's and the neocons' actual agenda.

Trace the history of these people, especially Cheney. Read what they say about the Executive Branch, again especially Cheney. Read what they say about what's wrong with this country since Watergate.

These people have as their primary motivation the creation of an imperial presidency, capable of shielding its workings from public view, and subject only to extremely minor limitations of its power. Which shouldn't be surprising, as they, by and large, have their intellectual roots in Marxism.

I can't stand those that glorify Congress as some sort of pinnacle of political governance. But they pale in comparison to those who believe that the Executive needs to have discretion to do whatever he deems necessary, in secret, with the only check on the power being the ability to vote them out of office in 4 years if you somehow are lucky enough to discover what they are actually doing.

ChicagoTom | December 20, 2005, 4:08pm | #

Bill Kristol is merely playing a role. A role that many "pundits" play. I realized it when I saw him on the Daily Show with Jon Stewart. He would go on with his talking points, but he couldn't keep a straight face about it whenever Jon challenged any of the talking points. He never seemed to have any conviction in his talking points. It almost felt as if he HAD to say them, and that they were his "public" beliefs, not his personal ones.

This OP/ED seems like just another scene from the part he is playing

taktix | December 20, 2005, 4:16pm | #

Even if the circumstances surrounding Lincoln's actions parallel today's situation, does this make it O.K.?

That's like saying we have the right to put Jews in a gas chamber because the precident was set a long time ago.

Just because something transpired in history doesn't make it right.

Also, I have many personal qualms with Lincoln. His intent was to keep the union together. The whole ending slavery part was just a talking point.

Some say that federalism died on the fields of the southern plantations...

Timothy | December 20, 2005, 4:21pm | #

Are there any kinds of wiretaps that the president may not order?

His dad won't let him get them with broccoli.

Ugh | December 20, 2005, 4:27pm | #

Are there any kinds of wiretaps that the president may not order? Why?

Mr. Taylor, surely you know that:

(a) The President is not violating FISA;
(b) Even if he is the AUMF authorized it;
(c) Even if the AUMF didn't authorize it, the power is inherent in his role as Commander-in-Chief;
(d) Even if we're completely making a, b, and c, up, what are you gonna do about it?
(e) Michael Moore is fat and John Kerry is frenchy.

KipEsquire | December 20, 2005, 4:30pm | #

It's amazing what winning seven of the last ten presidential elections can do to your view of the proper scope of presidential authority.

wsdave | December 20, 2005, 4:33pm | #

The Dems will do NOTHING about this because, after all, they'll regain office someday and want all this power for themselves.

Warren | December 20, 2005, 4:36pm | #

"Bill Kristol Smokes Crack and Writes a Column"

You really think this column distinguishes itself from any of the other stuff he's written?

GILMORE | December 20, 2005, 4:37pm | #

I think Chicago got it right

I think both liberals and conservatives frequently parrot rationales that they themselves would never formulate as part of the sport of team hackery. Kristol is in some ways obligated to try to refine the stated defence of the Admin and be more agressive about it than the white house itself can be. It may not taste good in his mouth, but he's not going to lose his meal ticket echoing the explanation du jour.

Last night on the News Hour Sen John Cornyn offered the below:

"Well, I know that the Foreign Intelligence Surveillance Act was passed in 1978. And certainly there must have been some authority that preceded that act to authorize a president to deal with foreign agents and intelligence gathering to protect Americans here on our own soil.

So I really believe that the Constitution provides the president some authority and the Foreign Intelligence Surveillance Act is not the exclusive authority."

I wouldnt have been surprised if he'd prefaced a statement like this with, 'I'm no lawyer, but as far as i know...'

...If not for the fact that he has 2 law degrees, served as state AG, yadda yadda. Arguments like, "i think there's something in the constitution about that" isnt really something you take to the judge, is it?

Feingold couldnt have been more disgusted in his responses. Here's one:

"SEN. RUSS FEINGOLD: Let me agree with Sen. Cornyn that the Constitution is the basic law of the land. And in that Constitution is the Bill of Rights and within the Bill of Rights is something called the Fourth amendment, which protects Americans from unreasonable searches and seizures.

Now that's the only thing in the Constitution that relates to this topic. There is nothing in the Constitution that says, yeah, the president can go ahead an wiretap whoever he wants without our system of government, which by the way is also set up in the Constitution."

A reasonably good smack down.

JG

thoreau | December 20, 2005, 4:42pm | #

"Bill Kristol Smokes Crack and Writes a Column"

Hey! I thought this was a libertarian magazine?

How dare you talk about crack smokers that way!

Handsome Pete | December 20, 2005, 4:50pm | #

From the WSJ (Opinion):

A 2003 paper by Rutgers sociologist Ted Goertzel offers some interesting insight into the left-wing psyche:

In the 1970s, Stanley Rothman and Robert Lichter administered Thematic Apperception Tests to a large sample of "new left" radicals (Roots of Radicalism, 1982). They found that activists were characterized by weakened self-esteem, injured narcissism and paranoid tendencies. They were preoccupied with power and attracted to radical ideologies that offered clear and unambiguous answers to their questions. . . .

The unwillingness to offer alternatives reveals a lack of self-confidence and self-esteem. If they offered their own policy ideas they would be vulnerable to criticism. They would run the risk that their ideas would fail, or would not seem persuasive to others. This is especially difficult for anti-capitalists after the fall of the Soviet Union. It has also been difficult in the war against terrorism because Saddam Hussein and Osama bin Laden are such unsympathetic figures. Psychologically, it is easier to blame America for not finding a solution than it is to put one's own ideas on the line.

Viking EVIL, NAUGHTY, WICKED Moose | December 20, 2005, 4:56pm | #

yeah. Thoreau. cancel your subscription. i have a corn syrup soiled envelope for you...

oooh. that's not corn syrup.

*nevermind*

oh, and i don't buy the "friendly banter" (re: other thread) for a minute, although you do keep your temper quite well :)

rob | December 20, 2005, 5:04pm | #

Handsome Pete,

I tend to agree with that particular description of the left-wing psyche. Not because it seems remotely objectively reasonable, but because my anecdotal experiences bear that out regarding political extremists across the spectrum.

Pro Libertate | December 20, 2005, 5:16pm | #

This is a weird area of the law. The Constitution really doesn't give presidents the type of authority they (and they all do it) often assert in national security areas, nor does anything you'll find in the U.S. Code. The basis for these kinds of assertions is really that presidents retain, inherent in their executive offices, some remnant of sovereign authority. And I mean "sovereign" in the old sense. The jurisprudence around this logic is strained at best, and no wonder. Our system is supposed to be based solely on powers granted in the Constitution, and throwing in Hamiltonian conceptions of a general "executive" power residing in the office of the president just makes things all the more complicated.

Here's a nice summary of the scope of presidential power, for anyone who is interested. You might also take a look at Youngstown Sheet & Tube Co. v. Sawyer. 343 US 579 (1952), which can be read as limiting presidential authority, particularly in areas where Congress has at least shared authority.

APL | December 20, 2005, 5:25pm | #

Also, I have many personal qualms with Lincoln. His intent was to keep the union together. The whole ending slavery part was just a talking point.


I would argue that the condition was actually the reverse. The "states' rights" position of the Southern states was adopted primarily to preserve slavery, not out of an inherent approval for states' rights. This is evident in how southern states approved of the extension of federal powers into state matters when they involved the return of runaway slaves who had crossed state lines into non-slavery states. The states' rights position was always a justification, first of slavery, and then of segregation. The coded use of the term states' rights was well-understood to mean segregation in the pre-civil rights movement south.

paranoid | December 20, 2005, 5:28pm | #

Considering we never collect intelligence about Americans because collecting the intelligence is against the law, but receive terrabytes of such intelligence every day as a gift from our allies, I can't see how anyone can complain about a few measly little wire taps. Ok, one runs through a filter algorithm in Gloucester, and the other gets laughed at by pudgey, under-shaved thirty-year old analytic types in Virginia. But its all the same in the end.

APL | December 20, 2005, 5:32pm | #

Bill Kristol Smokes Crack and Writes a Column

In other news, Pope Catholic, bears shit in woods.

I have to wonder why, with the easy availability of FISA warrants, the president saw it necessary to circumbscribe the FISA courts. I have seen two good possible answers.

1) The foundation for these wiretaps was so shoddy that they would have failed even the cursory overview of the FISA courts. In other words, these were clear abuses of domestic power ala Nixon.

2) The administration is trying to force a court battle which, with a supreme court firmly stacked for enhancement of executive power, will reverse on the necessity for such warrants and allow the executive even broader descretion in violating the 4th amendment.

Finding both possibilities disheartening, I vote for rapid impeachment.

Warren | December 20, 2005, 5:35pm | #

APL,
You're missing the point. It's not about how the Southern States used the virtue of federalism as a pretext to justify the evil institution of slavery. It's about how Lincoln used the virtue of abolition as a pretext to justify his evil totalitarian ambitions. Indeed Bush's assertion that the executive power is without bounds can be laid at Lincoln's feet.

Pro Libertate | December 20, 2005, 5:39pm | #

APL, I don't think that's entirely correct. I'd say the states all were guilty of some hypocrisy when it came to "states' rights" issues, but they weren't kidding around about them, either. Secession was threatened over central banking and other issues not related to slavery (even northern states got into the act).

It's hard for most people to understand this at this late date, but the colonies were separate sovereign entities in many respects and were really, really, really not eager to give up their authority to the central government. Which is why we started with the Articles of Confederation, built limitations on the federal government vis-a-vis the states into the Constitution, and still hear arguments about state sovereignty to this day. Frankly, the dilution of state power has weakened an important check on federal authority (which is one reason some people want to repeal the 17th Amendment).

APL | December 20, 2005, 5:46pm | #

It's about how Lincoln used the virtue of abolition as a pretext to justify his evil totalitarian ambitions.


I'm not a Lincoln scholar, but I find this to be a rather perverse characterization of the man. The idea that Lincoln as an individual drove the whole slavery issue, and by proxy, the Civil War, is absurd. It was partisan hysteria on both sides that generated the issue, and the south bears as much responsibility in this sense for causing the war as the north. In the north, the entire Republican party was, in a sense, power mad, and Lincoln was the most moderate and sensible leader that they could have generated. It could easily have been much, much worse, and in fact, did become worse after his death.

APL | December 20, 2005, 5:51pm | #

Secession was threatened over central banking and other issues not related to slavery (even northern states got into the act).

In other words, they threatened sucession over economic issues - tariffs were another example. But what was an economic issue if not slavery, the foundation of the southern agrarian economy and source of wealth for the most powerful members of its society?
And they were right. The south was economically destroyed by abolition, among other things. Still, all southerners knew (and I am one) that when Wallace and Thurmond said "states' rights" they meant segregation.

RandyAyn | December 20, 2005, 5:54pm | #

So, let me see if I understand Kristol's Moussaoui scenario. What he's saying is the Justice Dept didn't think that the FISA court would give them a wiretap on a non-U.S.-citizen that the government knew was trying to learn how to just steer and not take off or land? Is that what this corrupt cretin is trying to assert? How preposterous. Yes, crack appears to be the only explanation.

SR | December 20, 2005, 6:08pm | #

"You really think this column distinguishes itself from any of the other stuff he's written?"

Actually, I don't think Jeff is saying Kristol didn't smoke crack before writing his other columns, just that we can be pretty sure he did before writing this one.

taktix | December 20, 2005, 6:10pm | #

APL,

My calling Slavery a talking point was intended to be ad nauseum for a point... namely that tyrants use personally impacting issues to attain power.

Gaius, check me if I'm wrong, but didn't the Roman Republic collapse based on such deception by the Julians?

All I'm saying is that federal power had a pretty decent growth spurt after the Civil War, as it did after WWII (still have with-holding). I mean, I live in Pa. and I still pay a recovery tax on alcohol for the JOHNSTOWN FLOOD.

As for the "state's rights" thing, yes, absolutely has the definition changed. But on the same note, we didn't laugh six years ago when we heard the president say "terrorist."

Personally, I think the South should have won -- because the slaves would have revolted, overthrew the WASP aristocracy, and would be 100 years behind the North with regard to the growth of federal power.

I still agree with the whole revolution every 20 years quote, though I can't recall who said it.

I can dream, can't I?

P.S. just got off work, so if you see any spelling errors, please submit a written explination to I@don't.care

GILMORE | December 20, 2005, 6:11pm | #

APL

If you want to understand why the Admin wanted to sidestep FISA, Talkingpointsmemo.com has some good hints from a few sources that may offer some insights.

The main reason, I think it is now clear, is that they werent 'wiretapping' per se at all. (i.e. had identified a target and were monitoring that individuals communications), but were alternatively just doing various kinds of otherwise-illegal 'sweeps' and 'data mining' of massive amounts of information being collected surrepticiously.

An example offered was, say, if they captured an al quaeda members cell phone...they would search everyone's email on Hotmail/Yahoo/Google, etc etc for the same cell #s? Looking randomly for people that may have been given that #, thus starting to untangle a network.

In short, the main reason they avoided FISA is because FISA would probably not have allowed such wide-net approaches.

The way it's been described in some sources (there are some hints in the comments from some senators like rockefeller who were briefed on the program) is that the admin 'wiretapping' program was mostly computer snooping on a grand scale, and that the laws surrounding this kind of thing (or policies in place at NSA/CIA) werent going to be flexible enough for them to do what they wanted, so they kept it in-house and quiet.

Hope that may help.

JG

GILMORE | December 20, 2005, 6:24pm | #

re: you guys debating whether Lincoln was 'evil' or not...

Uhm. Is it me, or is libertarianism particularly suited to tinfoil-hat types? Man, they make us look dumb. As hippies to Dems, or dittoheads to the GOP... would people agree that libertarians' particular 'embarrassing constituency' are some super-geeks, prone to a ?
Maybe

Larry Edelstein | December 20, 2005, 6:27pm | #

Here's an essay by widely-known security consultant Bruce Schneier on what Gilmore is talking about.

http://www.schneier.com/essay-100.html

Shem | December 20, 2005, 6:42pm | #

In defense of Lincoln, the man was much more antislavery than most history portrays him. The idea that he wasn't is the product of the same time period and historical perspective that brought us "Gone With the Wind" and "The Klansman." He was no John Brown, certainly, but abolition wasn't something that he picked up purely to get votes.

aix42 | December 20, 2005, 6:44pm | #

There is an appearance of questionable actions with fundamental legal ramifications. I'd have assumed there would be an automatic response from the relevant legal authority, or a statement from the Supreme Court. Does it have to come from the political side?

rkroof | December 20, 2005, 7:28pm | #

I can understand how you libertarians would flake out at actions to secure our country from terrorist mayhem and murder, but you need to understand that most of us feel like the Commander in Chief's hands have been tied by liberal courts and an wimpy congress. I think you should take a deep breath, consider the precidents and the Constitution's assignment of powers to the Commander in Chief, and try to apply some Reason to your public comments.

BearCub | December 20, 2005, 7:36pm | #

"Neo-Conservative" = "Square Circle", and this just proves it.

Hakluyt | December 20, 2005, 7:39pm | #

Gilmore,

And certainly there must have been some authority that preceded that act to authorize a president to deal with foreign agents and intelligence gathering to protect Americans here on our own soil.

There were a series of court cases that dealt with the issue and found that the wiretaps involved in those cases were legal. However, FISA does state that it is the exclusive means by which such wiretaps can be made and no court since FISA was enacted has depended on those pre-FISA cases when dealing with national security wiretaps.

joe | December 20, 2005, 7:57pm | #

Kristol has got to be kidding.

The scenario he posits is that, in the days after September 11, a senior Al Qaeda operative is captured in Pakistan, and his cell phone contains the numbers of some people in the United States. Does anybody here think there a judge anywhere in America who would have trouble ruling that there was probable cause to tap those people's phones?

GILMORE, "Is it me, or is libertarianism particularly suited to tinfoil-hat types?" No, I don't think so. There are two parties in this country, and for 90% of the population, one or the other (or both) of those parties provides a good-enough fit. It's only the particularly radical, tinfoil hat fringe that looks elsewhere. Most libertarians are moderate enough to hold their nose and vote for a mainstream candidate. You just happen to be getting your impression of libertarians from the fringe of the group that can't stomach even the libertarian-est wings of the two major parties.

GILMORE | December 20, 2005, 8:00pm | #

rkroof

Dude,

First "you libertarians" assumes we all are of the same stripe. This is a very popular blog and it covers a wide range of views. Many readers here who may agree on one issue disagree about others. So dont speak to some fictionalized version of a group that you clearly feel superior to - find a specific comment by someone you disagree with, and make your point. This is also known as, "not being a dick".

2, before you blame "liberals and wimps" (whom no one here is particularly fond of AFAIK?) for people's deaths, how about acknowledging the fact that our security has been equally held back by stupid behaviour intended only to provide 'the appearance' of security? I.e. the standard GOP tactic of talking tough, then throwing a lot of money at stupid, political gladhanding things that have no effect on actual security? Do you need examples? read a newspaper.

The 'pay no attention to the man behind the curtain!' attitude is far more damaging to this country than people who bother to point problems out.

Or maybe you really do think having hundreds of officers randomly searching people's bags in NY, or having people at the NSA going through your email have effective uses of limited security resouces?

That the appearance of security, being paid for with my tax dollars, is a far better use of our resources, than 'actual' security?

Maybe so. You could present that case. It would be fun to watch.

Keep in mind that most self stated 'libertarians' I meet these days are not a bunch of pedantic, impractical theorists, paranoid of any government authority at all... but rather exasperated members of both political parties who cant believe how godfucking stupid both parties have become in the process of pandering to their respective lowest common denominator.

JG

Wild Pegasus | December 20, 2005, 8:02pm | #

you need to understand that most of us feel like the Commander in Chief's hands have been tied by liberal courts and an wimpy congress

Apparently, the Commander-in-Chief doesn't think his hands are tied by much of anything.

- Josh

joe | December 20, 2005, 8:06pm | #

Let me ask this: among Reasonoid libertarians, who here thinks that probable cause doesn't exist in the Pakistani/Senior Al Qaeda scenario Kristol lays out? Who here votes that the probable cause burden was met?

GILMORE | December 20, 2005, 8:12pm | #

Hakluyt

To be clear - what are you saying? you are quoting Sen John Cornyn, not me. And there were no citations of specific cases - so what "those cases" are you referring to? Pre-FISA authorizations? Well, thats really the point i was making.

The point being made was that Cornyn specifically allud to 'some potential authority' granted by the constitution that would allow the president to skirt existing laws like FISA at his own discretion.

my point about this was: John, you're a lawyer - if you really think something specific in the constituion allows for this kind of exception, you might want to bother IDENTIFYING that clause that you think is relevant. The Admin lawyers might need your help right now.

Obviously, if he knew of specific justification in the constitution, he would clearly assert it.

Problem is... (see Feingold's 'detailed analysis')... he doesnt have a leg to stand on.

Thats all i was saying. I dont doubt there was plenty of pre FISA legal wiretapping. But wasnt the point of FISA to make it more clear cut? Going around it makes no sense.

JG

GILMORE | December 20, 2005, 8:16pm | #

Joe,

Yeah, i know. I was being rhetorical. It was just that i thought the off topic discussion about the "evil, totalitarian Lincoln" was one of those, 'ahh, only on Hit&Run' things.

Maybe i just meant that libertarian wingnuts are just a special breed. Not that they have a greater share of the market *here*. Oh, not at all.

I never really meant to post that anyway. I decided not to send, accidentally hit 'post'. Silly me.

JG

thoreau | December 20, 2005, 8:21pm | #

joe-

I'd probably be willing to OK a wiretap on any numbers found in the cell phone of a known Al Qaeda leader.

joe | December 20, 2005, 8:21pm | #

G,

"It was just that i thought the off topic discussion about the "evil, totalitarian Lincoln" was one of those, 'ahh, only on Hit&Run' things."

Yeah, you're right. I think I get numb to certain old chestnuts.

Rob McMillin | December 20, 2005, 8:22pm | #

Hey, rkroof, is the Ritalin wearing off yet?

Fascist.

Hakluyt | December 20, 2005, 8:28pm | #

Gilmore,

I was merely addressing his statement.

Hakluyt | December 20, 2005, 8:30pm | #

joe,

Bringing a 4th Amendment standard to an extra-territorial search & seizure scenario is a bit silly.

taktix | December 20, 2005, 8:33pm | #

Some ass monkey above said:

I think you should take a deep breath, consider the precidents and the Constitution's assignment of powers to the Commander in Chief...

The whole reason we got off topic about Lincoln earlier is that I was saying:

PRECEDENT DOES NOT MEAN ACCEPTABLE

If that were true, then Kelo vs. Conn. would be OK, Hitler killing jews is OK, interning Japanese is OK, prohibition was a swell idea, the War on Drugs is great, and we should all be looking for witches to hang.

To bastardize a quote to fit my point: Know history, don't blindly repeat it.

P.S. He used the word Reason as a double entendre! Both refering to logic and the magazine! How clever and completely original!

taktix | December 20, 2005, 8:38pm | #

P.S.S. I guess these non-libertarians are just jealous of our historical knowledge and our ability to think of positions without regurgitating talking points.

GILMORE | December 20, 2005, 8:46pm | #

taktix

One comment i would add to yours is that, forgetting for a moment first principles, is it really even very fair to assume that things done without any oversight whatsoever are being done *well*? I'm OK, like people above, with 'approving' some domestic spying if its really justified, but shouldnt there be at the very least some process to determine if it is or isnt? The appeal to blind acceptance of authority as a benevolently guided thing seems incredibly ignorant of the way things actually play out. re: 'investigating Quakers' and other domestic spying idiocy.

the other comment id make is that the assmonkey capitalizes things like "Constitution" (assigning it some kind of punctuary authority) with seemingly little appreciation for its content.

JG

Larry Edelstein | December 20, 2005, 8:53pm | #

So enough of the assmonkeying!

Is there a way to integrate the wide-net approach into intelligence-gathering while preserving our civil liberties?

taktix | December 20, 2005, 9:00pm | #

Yes, re-institute the program of human intelligence gathering so that people can infiltrate "turrist" cells and find out who's actually evil doers...

OR

Instate some sort of repairation for spying on people who turn out to be normal citizens -- like, for instance, you are spyed upon and turn out to be a "person of freedom loving," you are exempt from taxes forever.

I'm no expert on any of this crap, but to assume power will be laid down after the "War on Terror" is over is folly.

Cincinattus was only a myth...

Larry Edelstein | December 20, 2005, 9:04pm | #

And about Bill Kristol and the "he's just phoning it in" excuse. Would you say this about Cavanaugh or Gillespie? If not, why? Perhaps you believe they are made of sterner stuff. Or that Reason's business environment doesn't put the same pressures on them. Could be. But you'd need to back it up.

Happy Jack | December 20, 2005, 9:13pm | #

Due to ignorance of the matter, I have some questions.

If I walk into a library, or a university computer lab for that matter, do I need a library card, student I.D., or some identifier, to access the internet?

In other words, would I have to login in some fashion, marking which computer I use, etc.?

Larry Edelstein | December 20, 2005, 9:19pm | #

You not from around here? It depends on the library, university computer lab, or what have you. Certainly of 'em would make you, and some (almost certainly) wouldn't. What's your point?

GILMORE | December 20, 2005, 9:22pm | #

Larry -

"Is there a way to integrate the wide-net approach into intelligence-gathering while preserving our civil liberties?"

Maybe. I dont know. It's a complicated idea. But maybe, if someone is clever enough to invent a process that has specific limitations and penalties for violations or misuse or allowing that info to leak to other parties. It's much like the current privacy laws that business make you click 'I approve' to acknowledge their terms of use of your personal info. (ok, shitty example, because those things are in practice meaningless, but you may get the idea)

I am different than some in that i didnt arrive at a generally-libertarian point of view from some fanatical devotion to individualism or some notion of the inviolability of my person or whatever... i think i'm what you'd call a "DMV libertarian" = I just was driven to it by watching the government do nearly everything so badly. I yearn for pragmatism and efficiency. Even in things that may potentially violate our civil liberties :)

So... is there a way? I think there could be. The fact is that we give information about ourselves to tons of people every day, and what our 'privacy' really means is changing very quickly regardless of what GWB decides to do or not. I learned this first when i started doing psychographic analysis of consumer groups using Axciom data.

http://www.fortune.com/fortune/technology/articles/0,15114,588752,00.html

I was shocked when i learned that one company could buy and sell so much personal data about people to almost anyone. But the system works (mostly) fairly harmlessly, and with our consent, because we generally feel the risk of sharing information is worth the reward.

But if you read the above link - the problem with the wide net approach is the potential for misuse of the netted info after the fact.

I think when personal encryption becomes more widely spread, and things like freenet become better disseminated some of these issues will be resolving themselves.

The OTHER John Gilmore really has a lot more to say about this than me.

http://www.toad.com/gnu/

I kind of hate him for being richer and smarter than me. But fuck him, i'm better looking.

Seriously though, check out his comments about midway down under "Freedom of Information" and "Encryption policy" Interesting stuff.

JG

crimethink | December 20, 2005, 9:30pm | #

Larry Edelstein,

Neither Cavanaugh nor Gillespie has written a column regurgitating the flimsy rationalizations of their political leader's probably illegal actions. When they do, your ad hominem attack might have legs.

Happy Jack | December 20, 2005, 9:30pm | #

Larry- I'm far removed from college (pre-web), and have never used a library computer, so I wasn't aware of the procedure.

If you don't have a personal IP address, how would the feds know who's accessing a jihadi website from a univ. lab? Wouldn't they have to monitor the entire server?

thoreau | December 20, 2005, 9:43pm | #

It's interesting that Kristol cites the Presidential Oath as a grant of power:

That is why the president uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution. Implicit in that oath is the Founders' recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.

I always thought that the purpose of the oath was to remind the President of his duty to adhere to the Constitution, and respect the limits on his powers. But to Kristol, it seems to be an oath of Guardianship, a promise to do whatever it takes to keep America safe when the other branches are inadequate to the task.

I guess that this expansive interpretation of the oath is the neocon version of the insistence that "interstate commerce" means the feds can regulate everything under the sun.

tangmonkey | December 20, 2005, 9:56pm | #

rkroof is crazy. How the hell can Bush's hands be tied by a court that has only turned down requests 4 times in close to thirty years? Also, this court hears cases in an extremly expeditious manner, within hours or minutes even. So lets put our thinking caps on for a second. Why would Bush bypass that a court that rubber stamps most requests? Could it be, gasp, that he's doing something illegal?

thoreau | December 20, 2005, 9:57pm | #

tangmonkey, you've obviously never heard of the doctrine known as "Divine Right of Presidents."

joshua corning | December 20, 2005, 10:03pm | #

"You just happen to be getting your impression of libertarians from the fringe of the group that can't stomach even the libertarian-est wings of the two major parties."

there is a libertarian wing of the democrat party???

where and who?

There are only two choices..republican and coocoo for coco puffs big L libertarian....and from the looks of bush it is looking like the friggin rabit is getting his trix...

on a side note what is the coocoo for coco puffs mascot animal...a brown rabbit? or what?

and what the hell is goofy if pluto is a dog?

and why is everyone pissed about Bush sneaking around in our back yard? it is not as if clinton or carter didn't do the same fucking thing...hell i think Kennedy invented it...i am more disapopinted then pissed...illigal search and seasure is just so democrat.

If I wanted that I would have voted for Kerry.

taktix | December 20, 2005, 10:03pm | #

Well, if we're heading back to totalitarianism, I might as well head over to the castle and make good with the royalty.

Anyone know when's the earliest flight to D.C.?

Shem | December 20, 2005, 10:25pm | #

If you don't have a personal IP address, how would the feds know who's accessing a jihadi website from a univ. lab? Wouldn't they have to monitor the entire server?

These days there's almost always some sort of login, mostly so that they can figure out whodunnit if somebody screws with the computers in some way. There are of course exceptions, but they're getting rarer and rarer as time passes.

there is a libertarian wing of the democrat party???

I think a decent argument can be made that, by and large, the personal freedom-loving ACLU types in the DP are about as libertarian as the economic freedom-loving types in the RP. I don't totally agree with either one, but I agree with both about equally.

Some would of course disagree with that sentiment, however..

SR | December 20, 2005, 10:42pm | #

"I'd have assumed there would be an automatic response from the relevant legal authority, or a statement from the Supreme Court."

The Supreme Court can't issue advisory opinions. Someone needs to figure out a way to challenge the action (e.g., they get charged with a crime using evidence collected under the illegal taps) and then appeal it all the way up.

Is RW Bradford still dead? | December 20, 2005, 11:01pm | #

so 'reason' asked a bunch of journos and libertarian-ish folks who they would be voting for in 2004- The ones who chose Bush -- I can't find the link I think Postrel and a couple others -- what do they think of that decision now? If they say they would still vote for the guy, I say they can piss off. (not advocating they should vote for Kerry or even vote at all btw)

tangmonkey | December 20, 2005, 11:15pm | #

thoreau, I have heard of "the divine right of presidents." Unfortunately, it's called the Canadian Prime Minister. I'm a Canadian, and found to my shock that the Canadian Prime Minister can do exactly what Bush has done without any legal problems.

Shem | December 20, 2005, 11:17pm | #

Here it is.

Looks like Jeff A. Taylor and maybe Ron Bailey were the only ones from Reason proper.

bill | December 20, 2005, 11:28pm | #

Forget FISA isn't this kind of thing illegal under the Fourth Amendment?

Gibbon | December 20, 2005, 11:46pm | #

"Bill Kristol Smokes Crack and Writes a Column"

Hey! I thought this was a libertarian magazine?
How dare you talk about crack smokers that way!
Comment by: thoreau at December 20, 2005 04:42 PM"

The right to smoke crack does not include the right to not have people make fun of you for smoking crack.

HTH's

On Topic: What I think was going on, was pre-emptive wire tapping. Instead of wire tapping a phone when you have reason to believe something is up, you tap everything, then sort it out later. Or more to the point, they're working 2-3 degrees of seperation. Trying to identify clusters of people.

A friend of mine works for a law firm. He says that one of the things they do is subpoena the phone and email records of the firm they are suing, then use social networking analysis software to figure out whoes talking to who and
about what.

He suspects that is what the Bush administration is currently up to on a vast scale. Makes sense, the Columbian drug lords where doing the same thing a few years ago to ferret out narks by analysing the Columbian telco's phone records. AKA, if you called a number that then called a number in the states that was also being called by a known DEA agent, then well you were a dead man.

joshua corning | December 21, 2005, 12:06am | #

"John Perry Barlow

Barlow is a songwriter for the Grateful Dead and other bands, the co-founder and vice chair of the Electronic Frontier Foundation, and a Berkman Fellow at Harvard Law School.

2004 vote: I’m voting for John Kerry"

that son of a bitch...i give that bastard money.

Larry Edelstein | December 21, 2005, 12:15am | #

crimethink, you misunderstood my point entirely. I wasn't knocking either of the Reason editors.

What I was trying to suggest, perhaps clumsily, was that if someone thought Kristol was being insincere when he wrote his column, then, absent other evidence, they should be ready to make a similar charge of other editors. I used the Reason editors as potential targets of such an accusation, not because I think they are vulnerable to such criticism, but to drive the point home.

Dig?

Kevin Carson | December 21, 2005, 12:34am | #

"....the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional."

Citations, please? Otherwise, I call bullshit.

It's much more plausible, given the context of "advice and consent" as terms of art in the 1780s, that in foreign policy the President was to be one component of a plural executive: the President-in-Senate.

And Limbaugh's use of the Lincoln parallel is typical of neocons, who seem to worship the war powers of the Great Presidents. The cult of Great Wartime Presidents was once a liberal pastime; but the precedents of liberal "constitutional dictators" are now claimed more often by self-proclaimed "conservatives." They grasp at Curtiss-Wright and Quirin, products of the same court that rubber-stamped FDR's domestic executive overreach in the New Deal. Big government conservatives, indeed!

Jack | December 21, 2005, 12:55am | #

Is RW Bradford Still Dead wrote: "The ones who chose Bush -- I can't find the link I think Postrel and a couple others -- what do they think of that decision now?"

Below is the link. The ones who specifically said Bush were: Dave Kopel, John McClaughry, Charles Murray, P.J. O'Rourke, John J. Pitney, Jr., Bob Poole, Louis Rossetto, Jeff Taylor (!), and Eugene Volokh. I would guess Jeff has probably changed his mind, the rest (with the possible exceptions of O'Rourke and Pitney) seem like too much of a bunch of hacks and apologists. I mean, really, anyone who could write something as facially insane as "We're in a war in which the survival of civilization is at stake" (Kopel), is not going to be put off by even the total shredding of the Constitution, let alone a few hundred illegal wiretaps.

http://www.reason.com/0411/fe.dc.whos.shtml

GILMORE | December 21, 2005, 1:23am | #

re: Kristols "extralegal but constitutional"

Now... "I'm no lawyer"...

(my new favorite phrase i hear pols use when they want to evade admission of full knowledge of what they do every day: 'law')

...but WTF does "extralegal but constitutional"mean?

Am i an idiot for assuming that law remains within constitutional perameters? or am i just not sophisticated enough to read mr kristol?
It sounds too much like a direct contradiction to me.

Is what he means is that 'when there may be no precedents or existing statutes, the Executive should be free to interpret as they see fit in situations of crisis?'

Well fine then. But, in context, does that really apply here when you look at what the issue is?

And isn't 'extralegal' just a nice washington way of saying 'clearly illegal under existing law as established by decades of various precedents'?

'oh no, dear, they're not faux diamonds, they're EXTRAdiamond!.'

See what i mean? Even if you accept his point...

(which is tenuous and not particularly elegant in its constant resort to the 'Founder's *thinking*' rationales, which is a total giveaway when people know that what they're talking about is actually in contradiction to the actual TEXT of the constitution - a la a lot of the religious right's claims of a 'judeochristian government')

... his claim for the need for 'extralegality' for 'freeing up the executive from potential problems with legislative requirements' isnt even particularly applicable to the point. Congress spent a shitload of time already dealing with this problem passing FISA, which explicitly gave this power to the government. If they thought that what they needed wouldnt fit in FISA, why didnt they simply notify, act, and then tweak the law to fit ex post facto, since they felt it was necessary?

The question Kristol leaves unasked, even if/when when you accept his rationale, is, "OK, then are situations like this supposed to exist in perpetuity without constitutional oversight?"

The admin never TRIED to fit this in any scheme that was cleared or reviewable. What does that mean, apart from the presidents ability to go 'extralegal' in times of emergency? Does extralegal mean there is fundementally no check AT ALL on emergency powers, ever, over a period of time?

I wish these questions were appended to the man's editorial rather than lingering somewhere else on the net. but maybe thats why blogs are filling the niche that they do.

JG

GILMORE | December 21, 2005, 1:52am | #

"joe,

Bringing a 4th Amendment standard to an extra-territorial search & seizure scenario is a bit silly.

Comment by: Hakluyt at December 20, 2005 08:30 PM

Hakluyt,

To be clear, as your comments have not been, we are not talking about 'extra territorial' actions.

Nor 'extra legal', the new phrase du jour i expect to hear from other post-bots.

as a general question to H&R's - what % of post comments do you think are auto generated?

(oh, no, now IM a tinfoil hatter!)

JG

Rick Barton | December 21, 2005, 2:08am | #

Hey! I thought this was a libertarian magazine?
How dare you talk about crack smokers that way!

That's libertarian, thoreau, not libertine! :) Says the atheist to the Catholic! Gosh [I almost said "God" :)] we H&R folks are a freethinking, open-minded bunch. No wonder people dig us enough to vote for us day after day. And in Dr. thoreau's case, an attempt at far more...

We didn't need thoreau to break the rules.

When only real votes are counted, H&R still roolz.

(If you think that's bad, you oughta hear my attempts at singing)

joshua corning | December 21, 2005, 2:08am | #

"as a general question to H&R's - what % of post comments do you think are auto generated?"

Actually I have been toying with the thoery that reason magazine exists solely for me a la "the trumman show"

So my guess is 100% minus whatever my own posts equal to.

On a side note I feel that reason will not sell me a Black T-shirt on the grounds that if they did it would be evidence that i am the only real reader of reason so my "keepers" choose not to. To which my only response is that I am on to your game so you might as well sell it me.

Easter Lemming | December 21, 2005, 2:15am | #

No surpises from Kristol and Schmit, this is the purpose for the Weekly Standard and the Federalist Society to create the day when the President is above the law. They absolutely believe that a conservative Chief Executive has pretty much unlimited power.

Now - listening and reading all the carefully parsed statements from the administration and other people who know and but can't say much, I really believe that what NSA has and Bush ordered into operation is a super-Echelon program. All net communications, IM, email, VOIP, all - scanned by keywords or recipients or senders. Combine with a massive database that keeps all past communications and backtrack all messages from nodes being investigated.

It even provides a limited justification for not going to FISA, you may not know whose communications you are tracking for a while as well as the massive flood of data you are dealing with.

Anyone have a better idea?

Rick Barton | December 21, 2005, 2:24am | #

Bill Kristol is a light weight neocon rah rah boy who will say anything that he thinks will advance the cause of the Israeli government or the balance of the neocon agenda. We should be gratified that he said that; if the GOP nominated a candidate who was insufficiently hawkish, he would be happy to switch allegiances to hawkish Dems-which BTW, is about all of them with the happy exception of Finegold.

Rick Barton | December 21, 2005, 2:30am | #

rkroof:

I think you should take a deep breath, consider the precidents and the Constitution's assignment of powers to the Commander in Chief, and try to apply some Reason to your public comments.

That's not even an attempted refutation.

Hakluyt | December 21, 2005, 3:17am | #

GILMORE,

If its along the Pakistani border then it clearly is extra-territorial. Its a pretty simplistic notion to think that the 4th Amendment follows the government overseas. Then again, I'm becoming a snippy Hobbesian in my dotage.

Eb | December 21, 2005, 3:32am | #

tangmonkey, you've obviously never heard of the doctrine known as "Divine Right of Presidents."

I would take all these cries of outrage and gnashing of teeth seriously if I had ever heard such talk when similar things were happening during the Carter and Clinton years.

Oh wait, there were people equally outraged, but they were from the paranoid wingnuts on the right. I'm assuming we aren't hearing from them now because their compounds in Idaho haven't installed internet yet. Or the black helicopters finally rounded them all up and shipped them off to secret government approved compounds.

Of course what all of this means is that the cabal that has taken over the White House is obviously monitoring these comments and those of you who have pulled back the curtain for all of us to see will surely be getting the inevitable knock on the door by special ops for your own gulag experience in the coming days while I continue to live in ignorant bliss. Hahahahahahahahahahahaaaaaaaa!

GILMORE | December 21, 2005, 8:37am | #

Hakluyt

Sorry, i had thought your comment was directed to the earlier points about the GOP defenders 'alluding to' possible justification for domestic spying in the constitution... and that the 4th amendment was 'silly' applied to these things.... (which is really entirely what it applies to). I didnt see any thread about pakistan? Anyway. Nothing to see here.

JG

joe | December 21, 2005, 9:31am | #

joshua writes, "illigal search and seasure is just so democrat." And yet it's George Bush who has been doing it without a warrant, and Bill Kristol, Rush Limbaugh, and National Review that have been heartily defending him, while the opposition to this act is led by Democrats in Congress.

You been hitting the pipe with Kristol, corning? Keep clinging to your dissolving worldview, bud.

joshua corning | December 21, 2005, 12:57pm | #

joe writes

""illigal search and seasure is just so democrat." And yet it's George Bush who has been doing it without a warrant, and Bill Kristol, Rush Limbaugh, and National Review that have been heartily defending him, while the opposition to this act is led by Democrats in Congress."

only nixon could have gone to china. :)

anyway i hope the Democrat led opposition wins on this issue...but to say that in light of the history of the 20th century in the US that the democrats are being hypocrytical to thier normal stance would not be a stretch.

joe | December 21, 2005, 1:53pm | #

joshua,

"...in light of the history of the 20th century in the US..."

So we're going back to Truman and Wilson? Does the fact that you have to reach back before my mother was born to make your point about the Dems suggest anything to you about your perception of their political platform?

I'll tell you, it's almost as if something important happened in the 1960s that realigned the country!

crimethink | December 21, 2005, 9:50pm | #

Larry Edelstein,

What I was trying to suggest, perhaps clumsily, was that if someone thought Kristol was being insincere when he wrote his column, then, absent other evidence, they should be ready to make a similar charge of other editors.

Well, I have not been reluctant to call Reason writers to task when they present silly arguments. Gillespie, Cavanaugh, and notably Ron Bailey have all been targets of my intense criticism many a time, though out of fear or pity they rarely respond.

But, then again, this isn't about me, Reason's editors, or H&R commenters; it's about Kristol, and his foolish rationalizations, which you seem fairly desparate to move the discussion away from.