The Sound of the Second Shoe Falling

The Sound of the Second Shoe Falling
© 2006 Ross Williams

So let me see if I have this right ... Democrats and our brainless knee-jerks are fit to be tied because Bush authorized the NSA – one of many groups of intelligence [sic] people purportedly working for America's security – to spy on foreign terrorists by means of tapping the American phones they call, or which call them. Democrats claim "we never knew about it"; Democrats claim "it's against the law"; Democrats claim "it's a violation of Constitutional Rights".

Yet this morning there's an article[1] in the Chicago Tribune, culled from the Washington Post, which quotes a key Democrat, House Minority Leader Nancy Pelosi. Dear ol' Nance doesn't seem too interested in Constitutional issues, and only marginally interested in legal propriety – but not from the angle commonly seen today.

This key Democrat was informed on or about Oct 1 2001 that the NSA was conducting phone tappings of international calls to and from known terrorists. This key Democrat, who is now among the cackle chorus of Democrats wetting their panties over NSA wiretaps, did not rejoin the NSA over the constitutional rights of the foreign terrorists or their American-resident pals. This key Democrat did not rebuff the NSA because such warrantless spying on foreign agents in the US requires the Attorney General to approve the action – as has been repeatedly described by the countless non-expert panty-wetters the nation over.

No, this key Democrat's only concern was ... well, let me use her words as found in the Chicago Tribune, which pulled them from the wire out of the Washington Post: "'I am concerned whether and to what extent the National Security Agency has received specific presidential authorization for the operations you are conducting,' Pelosi wrote on Oct. 11, 2001."

In other words, her only concern was that Bush authorized it. Which he did. And now she – and a host of others – is being fitted for another round of hissies, because Bush isn't the one authorized to authorize it.

I've got nothing against Democrats; really I don't. They have valuable notions and ideas and plans. Just – and this is the thing – not to the exclusion of Republicans and their notions and ideas and plans. And the same criticism goes the other way, too. The advice I would have for both is that just because you have a good idea about something does not mean that someone else with a different idea about that same thing has a bad idea. Good ideas can be contradictory: it would be a good idea to go to Hawaii for your summer vacation, and it would also be a good idea to stay home and canoodle with the spouse for the same vacation, ... yet you can't do both, hence they are contradictory.

If Democrats are ever going to be taken seriously in the general subject-area of national defense they cannot be doing the things they've been doing the last several years. They are simply not credible and their criticisms are tissue-thin... if even that substantial.

A War Against Terrorism which fails to address more than a rote, hyper-discerning fragment of anti-American terrorism is foolish and unwinnable. But that's what Democrats are lining themselves up to support.

Security leaks which name a CIA spy because the spy's diplomat husband wasn't singing from the administration's hymnal and as a means to embarrass the husband is not materially different from security leaks which identify counter-terrorism activities our government is using and as a means to embarrass the administration. The Democrats demanding heads to roll over Valerie Plame being identified to the NY Times by someone in the White House need to demand more rolling heads over the NY Times reporting on secret NSA activities[2].

For Democrats to have access to both classified information and public information, and sign on in virtual unanimity to the war in Iraq, and then to turn around and call the public information a bunch of "lies" once the unknowledgeable masses start complaining[3], they have left themselves no latitude in the honesty department for years to come. They don't have the option, now, for instance, to claim that they "never knew" about the warrantless wiretaps the NSA was conducting. That would make them, well, liars. "Pelosi lied, people died" has a ring to it ... in the event of a post 9-11 terrorist attack that kills Americans. There’ve been a few already, by the way.

You can't legitimately criticize the legality of national security actions more than 4 years after you learn about them if you didn't question the legality at the start. Congresscritters have a legislative staff capable of researching statutory authorities and restrictions; Pelosi and her party cohort cannot credibly claim that it took them four full years to figure out that a presidential authorization is incomplete under the law. Doesn't wash. They were told the NSA was listening to phone calls on October 1st; Pelosi asked if the President had authorized it on October 11th. That's ten days to send a staffer – usually a schmuck with a law degree who knows his way around law books – to the law library to do the research. Way more than enough time.

Democrats further have no quibble about any constitutional rights being violated. They especially have no quibble about constitutional rights being violated. First, there's the sniff test: in a war, you don't strenuously worry about being nice and polite to the enemy. "We don't want you waging war against us, really, but rest assured we'll only fight you by using our indoor voices and coloring inside the lines..." The threat of random rule-breaking response keeps the enemy on their toes. If the enemy knows we won't ever tap their wires without asking permission, then they're free to use our phone system against us; if they know we won't ever use torture, they know if captured they're going to be treated better by American guards than they were by their governments. The whiff of possibility is important to cultivate.

And second, there's no shortage of Democrats legislating away the constitutional rights of normal everyday Americans who do not place international calls to known terrorists. Millions of Americans who simply want to go to work every day, have a drink with dinner, fly home for Christmas, and buy decongestants when they get the sniffles have to sign away their rights every time they go out in public.

Democrats force them to do that – every day. Don't snicker, Republicans; you support most of these rights-denying laws yourselves, and then some.

When you drive down the road, you are subject to "implied consent" – which is found nowhere in the Constitution – that skirts the 4th Amendment. If you're coming home from dinner after having a drink, you can be compelled to provide evidence against yourself in violation of the 5th Amendment after the 4th Amendment-violating search.[4]

Fly to visit your folks at the holidays, or to Florida for spring break, or to Vegas for a weekend getaway, and you must endure a 4th Amendment violation at each end. The 4th Amendment is fairly explicit: each citizen must be "secure in their persons" against "unreasonable searches and seizures" unless the government – which includes the TSA – follows certain rules. Among those rules is that the government needs a warrant, signed by a judge, identifying by name the person to be searched and items to be seized, and the probable cause which makes such search and seizure "reasonable".

In other words, if it is "reasonable" to suspect that my 79 year old mother and her nail file is a terrorist threat worthy of a shoeless searching by civil servants who took a 3-hour course, then the rule of law requires the warrant. So get one. If it’s truly reasonable, any judge would sign it. Use the FISA judges; apparently they are underworked now that Bush has been going around them.

Or is it not “reasonable” to consider my 79 year-old mother a terrorist threat? Then the TSA can’t subject her to a warrantless and shoeless search.

...unless "reasonable" is separable from "probable cause" and thus justifying warrantless searches at the airport and at police roadblocks[5] under the heading of "implied consent’. In which case, it seems little more than a matter of partisan hypocrisy that this political stink bomb is playing out in the media. If you make phone calls to, or take phone calls from, known terrorists, it is certainly "reasonable" to suspect that something more than World Cup Soccer will be discussed, and the government has at least as much business inferring your implied consent to being searched as they do from my 79 year old mother at the airport who is visiting my older brother in Florida.

That would seem to be what it boils down to: the judicial definition of "reasonable". Courts the nation over have been defining it "reasonable" to stop everyone driving down the road and warrantlessly search for "sobriety" – and now for seatbelt usage.[6] Courts the nation over have been defining as "reasonable" the warrantless searching of every future airline passenger – hundreds of millions of them annually – because 19 passengers, over 4 years ago, hijacked 4 planes and knocked down several tall buildings and killed thousands of Americans.

The need for warrantlessly searching everyone is rationalized as follows: the cost of one failure is disproportionately high.

Is it any less reasonable to be suspicious of the phone calls made by or to the associates of those 19 hijackers? Is the cost of once failing to know a terrorist’s plans as discussed over the phone not sufficiently high? Ask the families of a few thousand bond traders and corporate lawyers and firemen and passengers who died on impact.

If we can warrantlessly search hundreds of millions of Americans annually at our airports looking for "the notorious nineteen", and nearly all of those hundreds of millions line up like brainless sheep readily submitting to their anti-constitutional fleecing, then why is it such an issue to warrantlessly bug the phones of the dozens, maybe hundreds, of American people who talk on the phones with "the notorious nineteen"?

If we can warrantlessly search hundreds of millions, can we not warrantlessly search hundreds? Or must we, as in the airports and courthouses and roadways, tap everyone’s phones in order to qualify for “implied consent”?

Exactly whose rights are the Democrats worried about? And can’t they be honest while wringing their hands?



[1] http://www.chicagotribune.com/news/nationworld/chi-601040248jan04,1,544920.story?coll=chi-news-hed
[2] Extra credit: name the common denominator in these security leaks. Extra credit essay question: Is it a coincidence? why or why not?
[3] what of the classified information? Is that a lie, too? If so, spill it. We have a Right to Know® after all, and it sure seems to be open season on divulging classified information in the media
[4] And the evidence is, at best, highly faulty. A "breathalyzer" does not measure the amount of alcohol anywhere; it measures the amount of an enzyme in your breath. This enzyme is the end-product of the natural metabolization of alcohol. This enzyme is also the end product of the digestion of bread – particularly white bread and pasta. Bread and alcohol are made from the same ingredients: grain and yeast. Studies have shown that people ingesting no alcohol but having eaten modest amounts of bread will often "fail" breathalyzer tests. Go to an Italian restaurant for spaghetti, have a glass of wine and a hunk of bread, or no wine at all and a half a loaf of bread, and get stuck in a 4thAm-violating roadblock, ... better hire a lawyer.
[5] and at schools, and at court houses, and at hundreds of other places
[6] "Hi there, we're just checking to make sure you aren't going to hurt yourself in the 0.00016% chance you'll be in an accident on your way home. So ... I see you aren’t wearing your seatbelt. Here's a ticket for $75. You may pay me in cash now, or forfeit your drivers license and pay a judge in two weeks."