Here’s a typical, arbitrarily selected attempt by mainstream liberals to explain what’s wrong with the Bush administration’s enthusiastic support undisclosed, unchecked, and unaccountable domestic spying. This comes from Hilzoy at Political Animal (2005-12-18):

What George Bush has done, by signing his Presidential Order, is to produce exactly that accumulation of powers that Madison and the other framers of the Constitution were determined to prevent. He has decided to circumvent the courts’ power to decide whether the government has enough evidence to place someone under surveillance, thereby removing a crucial check on executive power, and arrogating one of the powers of the judiciary to himself.

Moreover, the power he seeks to strip the judiciary of is not a peripheral one; it is essential to the Fourth Amendment prohibition against unreasonable searches and seizures. …

In addition, in deciding that he has the right to disregard clear statutes, President Bush is arrogating to himself the power of the legislature as well. The Legislature has the power to make laws; the Executive carries out the laws the Legislature has written. Had George W. Bush wanted to, he could have gone to Congress and asked it to change the laws. Instead, he decided to simply ignore them: to act as though he had the powers that the Constitution reserves to the legislative branch.

He is, essentially, claiming that he has the right not just to execute the laws, but to write them himself, and then to judge their application. …

But if it’s hard to reconcile the administration’s position with the Constitution and the views of the framers, it’s even harder to reconcile it with anything remotely resembling common sense. Because, on this view, the President can do anything he wants — anything at all — during wartime. …

In this country we do not have an absolute monarch. We have a President who is bound by the rule of law, just like the rest of us. When he asserts the right to set the laws and the Constitution aside, and to arrogate all the powers of government in his hands in secret so that he can use it unchecked, we have an obligation to make it clear that he is wrong.

Now, to be clear, I think that the Right’s legal brief on behalf of the Bush administration is both specious and frankly dishonest; they’re wrong, and Hilzoy is right, about the question of positive law. But here’s the open question. There are actually two separate, or separable, objections that Hilzoy is lodging against the use of undisclosed, unchecked, and unaccountable domestic spying on in these passages. Specifically, Hilzoy is objecting both that

1. Bush has to claim the authority to disregard existing laws and the Constitution in order to justify undisclosed, unchecked, and unaccountable domestic spying (i.e., he’s operating outside of the standing law); and also

2. engaging in undisclosed, unchecked, and unaccountable domestic spying, in and of itself, involves arrogating all the powers of government into his hands (i.e., he’s diminishing the separation of powers, and thus claiming the right to more power than one person should have).

It should be clear that these two objections are separable. The Constitution didn’t have to be written with provisions for the separation of powers, and the Constitution and the laws can always be changed. If, for example, Bush had gotten Congress to repeal FISA, and, while he was at it, had gotten Congress and the several states to amend the Constitution to repeal or limit the Fourth Amendment, then he wouldn’t be vulnerable to objection 1, but objection 2 would not be affected.

Now, here’s the open question. If Bush had gotten the law and the Constitution changed so as to authorize undisclosed, unchecked, and unaccountable domestic spying, would that have made it O.K.? Would it have even made it substantially less bad?

If it would have, then why would it have? If it wouldn’t have, then why spend so much time and energy stressing the fact that he did tread on the statutory law and the Constitution, if you don’t think that that makes a substantial difference?

I’ve been thinking for a while that I ought to start a feature leading up to the (upcoming) 5th anniversary of Geekery Today, called Dumb Things I’ve Said. The basic idea being that anyone who spends five years writing regularly on controversial topics is likely to change their views over time, and it’s better to spend your commemorative anniversary posts hammering out your own errors than clapping yourself on the back, because you’ve probably said things you later ended up thinking were pretty dumb. I’m no exception, and what I wrote a couple years ago in belated recognition of Bill of Rights Day is a case in point. I doubt that I’ll actually start the feature, but that won’t keep me from ragging on myself for today, at least.

It’s been 214 years today — December 15th — since the first ten amendments, commonly known as the Bill of Rights, were scribbled onto the end of the United States Constitution by order of the several states and the Congress of the United States. Folks with too much time on their hands have dubbed it Bill of Rights Day and think you ought to celebrate the grand legacy of those ten amendments. A couple years ago, I took the opportunity of the 212th anniversary to sing the praises of the Bill of Rights, to bemoan the erosion of some of their traditional protections, and hope that a brighter day would dawn soon. It was a bunch of nonsense, and I should have known that it was at the time, but it took me a while to really see through the dust that the canonical fairy-tales about legal history kick up.

Not surprisingly, I had started doubting the usefulness of leaning on the Constitution when I became an anarchist. But old cognitive habits die hard, and it wasn’t until last year, when I really started reading about William Lloyd Garrison and the rest of the disunionist abolitionists, that I began to feel anti-constitutionalism in any serious way, and it was largely through the Garrisonians that I came to realize the importance of making your arguments from moral basics rather than from legal hermeneutics. Voting abolitionists, and even Lysander Spooner, insisted on twisting the Constitution every which way they could to avoid the conclusion that it was (1) a pro-slavery alliance, and thus (2) an objective force for evil, the covenant with Death and agreement with Hell that Garrison denounced. But as interesting as Spooner’s argument was, it was really Garrison that was right about the Constitution (as I think Spooner came to realize later in his career); the important thing wasn’t constitutionality, but justice, which is not subject to legislative fiat. The Garrisonians, because so many of them were fervently religious, talked about a higher law than the Constitution; that’s partly right, but in a sense it’s also a matter of a lower, more human law; any serious theory of justice has to start from our ordinary claims to justice and dignity, the kind of demands that we ordinarily address to our fellow human beings (don’t attack me without reason, don’t trash my stuff, mind your own business if it’s not hurting you) rather than the ritual incantations that you might utter before a Court (Eighth Amendment, Public Use Clause, penumbral right to privacy, blah blah blah).

But as of a couple years ago my recognition of all this was nowhere near complete, and so my half-complete anti-statism didn’t stop me from singing the Bill of Rights’ praises, piously hoping that other branches of government would force the Bush administration to stick more closely to it, and absurdly describing it as that good old parchment barricade against tyranny.

Well, the thing about parchment barricades is that they don’t hold up very well against pressure. (That’s why you usually want to make barricades out of mud or bricks, at a minimum.) Constitutions don’t protect liberty; people do. Or don’t, which is the legacy the Constitution of the United States leaves us with today. Whatever protections the Bill of Rights was supposed afford white male citizens from the federal government, and whoever those protections were supposed to be extended to in the present day, we have (just to pick a few arbitrarily-selected examples) the FBI spying on us in secret, increasingly arrogant and militant paramilitary police ([1], [2], [3], [4], [5]) occupying our cities, a rampaging global war machine, deliberate and systematic gutting of habeas corpus, and a Justice Department that seems to believe that it can threaten and arrest people for failing to comply with secret laws whose terms they refuse to disclose. Either the Bill of Rights permits this kind of abuse, in which case it does not deserve the praise of rational people, or it forbids it but is incapable of stopping it, in which case it is useless.

In either case, my whining that this sort of thing oversteps this or that clause is bloody well irrelevant; the problem with invading people’s lives with unwarranted searches and seizures, government-sponsored religious persecution, seizing guns, maintaining a standing war machine, inflicting cruel and unusual punishment, or rounding people up and throwing them in prison forever without charges, is not that they’re unconstitutional; it’s that they’re evil. There may be cases where something is wrong just because it violates some bit of positive law — respect for human life demands that you drive on the side of the road other people drive on, but it’s a matter of arbitrary convention which side that should be — but these are certainly not that sort of case. The right to your own body, to self-defense, to your conscience, to peace and freedom, are prior to any law or compact, the only possible foundation for any just law or legitimate authority at all, and therefore not dependent on the Constitution saying one mumbling word about them.

Human rights don’t need to be written on scraps of paper to be worth defending, and wasting your time and energy wrangling over the right enchantments to invoke The Law on your side is a distraction and a sucker’s bet. I’ll take my rights. You can keep the bill.

Further reading

• GT 2005-09-17: International Ignore the Constitution Day
• GT 2005-09-02: Definition 2
• GT 2005-07-04: Burn, baby, burn
• No Treason! 2005-12-11: Bush Gets it Right

Everything old is new again.

In the political atmosphere created by a seemingly endless, only half-declared war, in which both foreign infiltration and domestic subversion are considered serious threats by the powers that be, the spooks from the FBI have been granted expansive powers for clandestine domestic surveillance — that is to say, spying on you, and I, and our neighbors, if our political loyalties are suspect. They are accountable only to minimal oversight, by closed, secret courts whose proceedings are only known to a select few of the bureaucrats and overlords of the State–but not to you, or I, or our neighbors. And in this kind environment, the Washington Post is shocked! shocked! to discover that the FBI may have abused its undisclosed and unchecked powers:

The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

Records turned over as part of a Freedom of Information Act lawsuit also indicate that the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically since the Sept. 11, 2001, attacks but are largely hidden from public view.

…

In other cases, agents obtained e-mails after a warrant expired, seized bank records without proper authority and conducted an improper unconsented physical search, according to the documents.

Although heavily censored, the documents provide a rare glimpse into the world of domestic spying, which is governed by a secret court and overseen by a presidential board that does not publicize its deliberations. The records are also emerging as the House and Senate battle over whether to put new restrictions on the controversial USA Patriot Act, which made it easier for the government to conduct secret searches and surveillance but has come under attack from civil liberties groups.

The records were provided to The Washington Post by the Electronic Privacy Information Center, an advocacy group that has sued the Justice Department for records relating to the Patriot Act.

David Sobel, EPIC’s general counsel, said the new documents raise questions about the extent of possible misconduct in counterintelligence investigations and underscore the need for greater congressional oversight of clandestine surveillance within the United States.

We’re seeing what might be the tip of the iceberg at the FBI and across the intelligence community, Sobel said. It indicates that the existing mechanisms do not appear adequate to prevent abuses or to ensure the public that abuses that are identified are treated seriously and remedied.

…

Catherine Lotrionte, the presidential board’s counsel, said most of its work is classified and covered by executive privilege. The board’s investigations range from technical violations to more substantive violations of statutes or executive orders, Lotrionte said.

Most such cases involve powers granted under the Foreign Intelligence Surveillance Act, which governs the use of secret warrants, wiretaps and other methods as part of investigations of agents of foreign powers or terrorist groups. The threshold for such surveillance is lower than for traditional criminal warrants. More than 1,700 new cases were opened by the court last year, according to an administration report to Congress.

— Dan Eggen, Washington Post 2005-10-24: FBI Papers Indicate Intelligent Violations

Sometimes things just happen out of the blue, and there just aren’t any warning signs. Who could have predicted that unchecked and unaccountable spying power, responsible only to secret courts, created by bulldozing established legal limits, would lead to abuses of power? It’s not like those onerous limits on the FBI were created for any particular reason. It’s not like anything like that ever happened before.

The fact is that this is only the smallest sign of a incredibly serious problem — systematic surveillance and unaccountable secret police are always toxic, and can be lethal, to anything resembling freedom. This is something that deserves a lot more than heaping facile sarcasm on it. But what else is there to say? It’s outrageous, but it’s not at all surprising. Those who rammed through measures like the USA PATRIOT act not expecting this to come are the worst sort of fools. Those who rammed through those measures not caring whether it came or not are the worst sort of criminals. And my lingering suspicion is that most of the folks in DC are both thoughtless enough, and ruthless enough, to be best described as both.

(Thanks to Marian Douglas for shining light on this.)

We already knew that Florida cops were willing to electrify a 6 year old boy and a 12 year old girl with a 50,000 volt blast from a taser. The 6 year old was distraught and threatening to hurt himself (after all, why hurt yourself when you can have a cop immobilize you with pain?); the 12 year old’s crime was playing hooky and maybe being a little tipsy, and the incredibly dangerous imminent threat she posed was that she ran away from the cop and so might have been able to skip school. Back when it happened, I mentioned that the main reaction from the police brass was to review the decision to equip cops with tasers–as if the equipment were the primary problem here. I also mentioned that we might be better served by scrutinizing the paramilitary police culture that we have, in which peace officers are trained to take control of every situation at all times, by any means necessary, and where any notion of proportionality between the possible harm and the violence used to maintain control is routinely chucked out the window in the name of law and order and winning the war on crime.

I hate being proven right.

It doesn’t take fancy electric tasers for Florida cops to be overbearing, brutal assholes. They can do it the old-fashioned way: for example, by sending three adult officers to pin a five year old girl’s arms behind her back and handcuff her.

A lawyer has threatened to sue police officers who handcuffed an allegedly uncontrollable five-year-old after she acted up at a Florida kindergarten.

The officers were called by the school after a teacher and assistant principal failed to calm down the little girl.

The incident was caught on a video camera which was rolling in the classroom as part of a self-improvement exercise at the St Petersburg school.

A lawyer for the girl’s mother said the episode was ncomprehensible.

The video, made public by the lawyer this week, shows the unfolding of the violent tantrum, which started when the little girl refused to take part in a maths lesson.

She then ripped some papers off a bulletin board and lashed out at staff trying to calm her down.

After calling her mother and learning she would not be able to pick up the child for at least one more hour, the teachers resorted to calling the police.

Three officers rushed to the scene and handcuffed the girl, by that time apparently calm, after pinning her arms behind her back.

The footage showed her in distress after being handcuffed.

— BBC 2005-04-23: U.S. police handcuff five-year-old

One of the minor consolations of subjecting schoolchildren to a school police state is that the surveillance has left a video record of the handcuffing.

So a kindergardner is uncontrollable and this justifies calling the cops, and then (even though she wasn’t doing anything anymore, just in case she got any ideas) hand-cuffing her as she screams.

By the way, this is not the first time that this has happened

Trayvon McRae is 6 years old.

After throwing a tantrum in music class, and kicking and hitting a St. Petersburg police officer who was taking him home, this kindergartener was handcuffed and arrested on a charge of battery on a law enforcement officer. Both of his wrists fit neatly into a single cuff.

Mikey Rao was 8 when he got arrested.

He didn’t want to go to the principal’s office, so he ran out of his class and kicked and scratched a teacher’s aide. He spent several hours in the Citrus County Jail.

Demetri Starks turned 9 last week.

One day this summer, when he was still 8, he swiped a neighbor’s jar of change. Police stopped the 60-pound St. Petersburg boy wearing a T-shirt covered with monsters from the cartoon Digimon. They handcuffed him and sent him to a detention center where he stayed locked up for nine days.

— St. Petersburg Times 2000-12-17: Under 12, Under Arrest

Hell, it’s not even the only time that it’s happened recently.

Two boys, aged 9 and 10, were charged with second-degree felonies and taken away in handcuffs by the police because they drew stick figures depicting violence against a third student.

There was no act of violence, no weaponry. According to news reports, the arrested children had no prior history of threatening the student depicted in the drawing. The parents were not advised or consulted. The school’s immediate response was to call the police and level charges “of making a written threat to kill or harm another person.”

The incident was not an aberration but one of three similar occurrences in the Florida school system during the same week. In another case, a 6-year-old was led away in handcuffs by police. And those three incidents are only the ones that managed to attract media attention.

— Wendy McElroy 2005-02-10: On Handcuffed and Felonious Children

(Just in case you Blue Staters were thinking about getting smug about those barbarians down yonder in Florida, you might also be interested to know about the California cops who beat the shit out of a non-verbal autistic teenager who didn’t follow their orders–using bludgeons, a taser, and pepper spray.)

The cops, of course, continue to treat these cases as a P.R. management problem, not a public safety problem created by out-of-control cops. That’s because the cops aren’t out of control; they are doing what cops normally do in our society; we only know about it here because the victims were vulnerable enough that their caretakers were able to get the attention of the newsmedia and the civil courts. We are not talking about a few bad apples here; we are talking about a systematic feature of policing in our society. We’re not talking about something that a bit of administrative hand-wringing and P.R. management and tinkering with equipment will solve. Police brutality, especially police brutality against unruly Black people, ain’t exactly new. This is what happens when the means of defense are almost entirely in the hands of a professionalized paramilitary force. You get an institutional culture of command-and-control. You get unaccountable peace officers who go on a rampage when their orders are questioned, and who apparently don’t have any principled inhibitions about using force on people that is wildly out of proportion to any possible threat. (Restraint can especially go out the window if they are Black. Or if they are otherwise thought to be unlikely to get sympathetic attention from the courts.)

So just remember, Johnny: the cops are here to keep you safe. By hurting you for no reason when you pose absolutely no threat to anyone.

Further reading

• Marian Douglas 2004-04-22: 3 Florida Police Handcuff A 5 Year Old [Black] Child- The Continued Criminalisation of Being Black
• Marian Douglas 2004-04-22: CNN.com Video: Police Handcuff Five Year Old Girl – after White School Teachers Call Police
• Marian Douglas 2004-04-23: BBC: US Police Handcuff Five-Year-Old; Black Child Mobbed and Handcuffed by White Adults
• Marian Douglas 2004-04-24: “On handcuffed and felonious children” – Wendy McElroy, published in February
• Marian Douglas 2004-04-24: What kind of society handcuffs a five year old, arrests a seven year old, and more??
• GT 2004/11/14: Civil defense
• GT 2002/02/13: More police brutality in Montgomery
• GT 2002/01/30: Corporate elites meet & greet; New York Times makes shit up
• GT 2001/04/22: History of Race Riots Reveals — and Obscures

Quick review.

George W. Bush, Dick Cheney, Tony Blair, Donald Rumsfeld, and several other senior government officials in the U.S. and U.K. told us that Saddam Hussein’s regime in Iraq had large stockpiles of chemical and biological weapons. They told us that they were actively trying to find nuclear weapons. They told us that they had connections with the al-Qaeda terrorist network, and that therefore Iraq posed an imminent threat to the security of the United States. Therefore pre-emptive war was necessary, and nothing short of regime change would do.

They lied. When Ambassador Joe Wilson told them that their evidence for claiming that Saddam Hussein was trying to acquire nuclear weapons was a forgery, they kept citing that completely spurious, forged evidence in public statements. When the U.S. intelligence apparatus was not giving the answers that they needed to justify their policy, they didn’t change the policy; they set up a new intelligence office to give them the answers they wanted. Questions were left unasked and intelligence was cherry-picked and sexed-up and those who offered cautious, qualified, or dissenting views were were marginalized by the
gang at the top and their political appointees at the top of the intelligence agencies. Needless to say, the caveats and doubts were completely erased in the governments’ public declarations and policy statements. Mysteriously enough, somehow or another, the attitudes of the mad-dog bosses at the top created an environment where groupthink flourished and even though the intelligence community was inundated with evidence that undermined virtually all charges it had made against Iraq (Washington Post 2005-03-31), not one word of this evidence made it past the policy gate-keepers in the President’s cabinet. In other words, they had a goal, they looked for evidence to support that goal, and when they did not find good evidence they repeated evidence that they were informed repeatedly ahead of time was questionable or completely spurious evidence, and they shamelessly bowdlerized the data to in order to hide these opportunities for doubt and hype their war.

And it turns out that what they claimed on nearly every point was false.

Iraq had no stockpiles of chemical and biological weapons.

Iraq had no connections with al-Qaeda.

Iraq was not any threat to the United States whatsoever.

Or to put it another way: they lied through their fucking teeth and, as a result, some 10,000-100,000 Iraqi civilians were murdered, thousands more were brutalized and tortured, and over 1,500 British and American troops have died in a rudderless, pointless bloodbath.

Dead wrong indeed. You fucking assholes.

Now that the latest report on intelligence failures–even while piously avoiding unauthorized inquiries into questions concerning the political use of intelligence in driving war policy, of course–has reiterated these sorry facts yet again, it seems that our august media and government officials are finally turning to serious questions of responsibility and policy, to make sure that something like this never happens again.

For example, The New York Times’ Op-Ed page indignantly blasts the Administration for encouraging the credulous use of shaky testimony from unscrupulous interested parties.

Meanwhile, Kit Bond tells us it’s all Bill Clinton’s fault..

And the commission’s report and Bond and the rest of the blowhard brigade have got an answer. Here it is:

The commission’s report said the principal cause of the intelligence failures was the intelligence community’s inability to collect good information about Iraq’s WMD programs, serious errors in analyzing what information it could gather and a failure to make clear just how much of its analysis was based on assumptions rather than good evidence.

…

The single most prominent recurring theme of its recommendations is stronger and more centralized management of the intelligence community, and, in general, the creation of a genuinely integrated community, instead of a loose confederation of independent agencies.

The panel urged Bush to give broad authority to John Negroponte when he is confirmed as the director of national intelligence.

— CNN 2005-04-01: Report: Iraq intelligence ‘dead wrong’

The problem, you see, is how decentralized intelligence-gathering in the United States is. We’ve got to make sure in the future that we can avoid the politically-driven manipulation of data, that we can prevent dissenting or cautious assessments from being filtered out by hard-charging bosses, that decision-makers get all the information and analysis that they need to make a balanced assessment. And the best way in the world to do this is to consolidate and centralize as much of the intelligence apparatus in the United States government as possible.

Because nothing ensures a wide range of opinion and the integrity of data like making sure that it’s all filtered through a single directorate before it reaches decision-makers.

A single directorate under the control of one all-powerful political appointee, who answers directly to the President.

And that one political appointee should be John Negroponte.

All of this would be really depressing. I’m just glad that it’s nothing more than one sick fucking April Fools’ joke.

Right?