Synchronicity? Or sad coincidence?

Samuel Alito confirmed to the Supreme Court

Coretta Scott King dies.

The End of 'Christendom'

Having just finished Harvey Cox's book (which I recommend), I find myself thinking Cox's thoughts, and thinking about his thoughts.

He makes the not unsurprising point about how he was been surprised by the resurgence of religion (not just Christianity) in the world. Following the lead of most 19th century thinkers (and such contemporaries as A.O. Wilson), Cox expected religion to fade from public view as the European Enlightenment opened our eyes to the truth which is only available through the good offices of Empiricism (pace, Immanuel K.). But his observations set me to wondering: did religion ever really disappear from public discourse in European ("Western" seems almost too broad a designation, to me) culture?

It has been noted that John Cheever's stories, which hardly seem religious at all, are shot through and underpinned with religious ideas. Not as firmly as the work of Walker Percy or Flannery O'Connor, but critics are, apparently, starting to see it. I've been reading the early stories of John Updike, and I've been surprised to realize how religious his stories are, as well. Not, like Cheever's, in any "evangelical" sense, and yet not in the clearly Roman Catholic vein of Percy and O'Connor, either. It's sometimes a subtle thing, sometimes not, and sometimes not present at all. But it is there often enough to be note-worthy, and it is certainly not there to be discarded as "mythology" or a vestige of an "immature culture.".

Ludwig Wittgenstein famously scandalized the logical positivists with the conclusion to his first great work, the Tractatus Logico-Philosophicus: "Whereof one cannot speak, thereof one must be silent." The conclusion doesn't fit their basically empiricist view that what one cannot speak of cannot be deemed valuable, indeed cannot have true existence. They found their greatest hope was, at heart, a mystic. In what is probably the most famous anecdote about Wittgenstein, Bertrand Russell relates in his autobiography that he once asked Wittgenstein if he was thinking about logic, or his sins, and Wittgenstein answered: "Both." Wittgenstein also contributed a great deal of valuable points to the philosophy of religion, including a very lucid insight, which doesn't wander far from the Tractatus, that in matters of religion the believer and the non-believer simply speak in terms which do not contradict each other, but which cannot be explained to each other, either. It is a solid ground for a minimum of tolerance on both sides.

Jacques Derrida, one of the most famous of modern philosophers, is largely known for his theory of "deconstructionism," itself an outgrowth of both his response to the dominant French philosophical school of structuralism, and of his studies of Heideggerian phenomenology. Although Jewish by heritage, and agnostic in confession, Derrida was a Professor of Humanities, teaching in the field of Philosophy of Religion, at UC Irvine. His later work focussed on that field, and he produced many excellent books on the topic, including a study of Kierkegaard's Fear and Trembling and a lucid analysis of the effects of "televangelism" and religious fundamentalism in general, on the world.

Perhaps these are mere patches of ice, and do not a winter make. Certainly there are many avowedly atheistic and agnostic writers in the 20th century, and any profession of faith among professional philosophers is still largely a career-endangering move, at best. But perhaps this means only that Christianity has been marginalized in European culture, which is a good thing. After all, as Cox concludes in his book, Jesus was first found among the poor, the hungry, the marginalized, the dispossessed, and he told us to continue to look for him there, even unto today. And it is there that we find him, consistently and persistently.

If we have to reflect that, in one way or another, perhaps that is good.

For those interested

A very careful examination, and dissection, of the legal arguments put forward by the Bush Administration to support their illegal and unconstitutional wire-tapping campaign, published in the New York Review of Books.

My analysis was nothing more than a thumbnail, but I'm glad to see it is in accord with this one. For example:

the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked war-rantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

The letter also points out, importantly, that the DOJ reading of AUMF and FISA create a constitutional problem, while the "ordinary" reading of them are consistent with the constitutional system. This is a complex legal way of saying something quite simple, and quite fundamental to constitutional jurisprudence: if it ain't broke, don't fix it.

One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.

"The man who fights dragons too long

becomes a dragon himself."--Nietzsche

Finally figured out why this bothers me:

When you believe the end of the world is coming, you learn to talk fast. On a Friday afternoon the debate team from Liberty University, Jerry Falwell's fundamentalist Baptist college, is madly rehearsing for the tournament about to begin. This year's topic: should the United States increase diplomatic and economic pressure on China. They may just be practicing, but you wouldn't know it from the menacing mosquito-buzz rising as all 20 debaters read their speeches at once, as fast as they can. Policy debate on the college level has become a rapid-fire verbal assault, an arguments-per-minute game, that sounds more like the guy at the end of the car commercial than an eloquent Oxford intellectual. There is tension and more than a little spittle in the air. The Liberty team is currently ranked No. 1 in the country, above Harvard (14th) and all the other big names. But for the evangelicals, there's a lot more at stake than a trophy. Falwell and the religious right figure that if they can raise a generation that knows how to argue, they can stem the tide of sin in the country. Seventy-five percent of Liberty's debaters go on to be lawyers with an eye toward transforming society. "I think I can make an impact in the field of law on abortion and gay rights, to get back to Americans' godly heritage," says freshman debater Cole Bender.

It isn't simply political: it's more fundamental than that. It's what Nietzsche said: that which you oppose most fiercely, you most come to resemble. Is Christianity about debate? Is that even marginally important?

The fundamental problem, of course, is the "Old Testament" view of the world implied here by Liberty University. Israel had a covenant with God; America did not, and does not. Kantian ethics aside, whether or not any nation has an obligation to "a higher standard" is a difficult issue (Martin Luther King notwithstanding), and not at all a settled one. Israel has a definite obligation to follow Mosaic law: it was that law which created Israel, and by which it was to be guided.

But America was not founded on a covenant with the God of Abraham. "Godly heritage" is a phrase what would make William Penn's skin crawl, not to mention Roger Williams. The one thing America is not supposed to have is a "Godly heritage," precisely because we are a secular nation, not a theological one.

And then there's the question of salvation and atonement: if the covenant with Israel is to make them a light to the nations, are all the nations somehow bound under the laws of Moses to worship and honor the God of Abraham, at penalty of their immortal souls? Quite a soup of Hebraism, Hellenism, and Christianity there. If they are, then the actions of Liberty University make a bit more sense.

But if they are not....

So I don't just disagree with the way Liberty University is going about its task, I disagree with why they are doing it. But we don't even have to reach that issue (although to do so expands the discussion beyond the concerns of Christians alone, without resort of bashing Christian doctrine): there is the issue of how to proselytize, and there Harvey Cox gave me an interesting insight.

He points out in When Jesus Came to Harvard (Chapter 16) that the crowds came to Jesus because of his reputation as a healer. They didn't come to hear bizarre parables or pithy statements or even long sermons: they came to be healed. Look at Mark 1:21-28: Jesus teaches "with authority," but the bulk of the story is about an exorcism. And what does Jesus say? We don't know, but "He commands even unclean spirits, and they obey him." And so: "At once his fame began to spread throughout the surrounding region of Galilee."

Or Luke, when Jesus teaches in the Temple, and after his sermon he tells the people: "No doubt you will quote me that proverb 'Doctor, cure yourself,' and you'll tell me 'Do here in your hometown what we've heard you've done in Capernaum." (Luke 3:23). It's the healings the crowd expected. The words were extra.

We who come after Jesus, however, only have the words (or act as if that's all we have), so naturally we concentrate on them. And words are what debate is all about, isn't it?

But is that what Christianity is about? Is it about power, and authority, and controlling the discussion, and framing the issues, and winning the debate? Or is it about what St. Francis supposedly said: "Preach the gospel to all the world and, if necessary, use words."

Somehow, that just strikes me as the Biblical model.

Now, if we can just agree on what "the gospel" is....

The NYT buries the (political) lede

NYT today:

But in a recent interview, Otto J. Reich, who served under Mr. Powell as the State Department's top official on Latin America, said that a subtle shift in policy away from Mr. Aristide had taken place after Mr. Bush became president — as Mr. Curran and others had suspected.

"There was a change in policy that was perhaps not well perceived by some people in the embassy," Mr. Reich said, referring to Mr. Curran. "We wanted to change, to give the Haitians an opportunity to choose a democratic leader," said Mr. Reich, one of a group of newly ascendant policy makers who feared the rise of leftist governments in Latin America.

Told of that statement, Mr. Curran said, "That Reich would admit that a different policy was in effect totally vindicates my suspicions, as well as confirms what an amateur crowd was in charge in Washington."

I have been following, fitfully, the condition of Haiti on DemocracyNow! This NYT article is quite long, but I can't yet say it is comprehensive, nor even why President Aristide (identified in the article so far only as "a former Roman Catholic priest who rose to power as the champion and hero of Haiti's poor") was not a "democratic leader."

Of course, I suspect he was "undemocratic" in the way that Arcbishop Romero was a threat to the government of El Salvador.

And I suppose it will amaze few here that the Administration is being openly condemned as "amateur."

But I woke up noticing a common trend: the Canadian government abruptly changed hands, largely on charges of wide-spread corruption by the party in power. Hamas, NPR was reporting this morning, rose on largely the same terms, that Fatah was too corrupt to govern any longer. From the outside, we can imagine all kinds of reasons for political upsets, all of them connected to our concerns, which is seldom correct. Tip O'Neill was right: all politics is local.
And one thing functioning democracies tend to abhor is corruption. They may seem to move slowly about it, but like the slow grinding mills of God, they srub it down to the ground. This article is, in that sense at least, one more indication that the reign of the GOP is over.

How much damage is done to the world remains to be seen, and that's the real thrust and interest of this article. At this point, at least, we do know this much:

Several months later, the rebels marched on Port-au-Prince and Mr. Aristide left Haiti on a plane provided by the American government. Since then, Haiti has become even more chaotic, said Marc L. Bazin, an elder statesman of Haitian politics.

"I was suspicious that it would not be good," Mr. Bazin said. "But that bad — no."

Added Mr. Einaudi, "Building democracy in Haiti now is going to take a very long time."

One other thought....

It occurs to me that the "ticking bomb" scenario presents us with the old temptation (anfechtung, Kierkegaard would say) of putting on some of God's knowledge, if not God's power.

God is all-knowing, we say, and so God is never plagued by uncertainty. But we are, and the worst uncertainty that plagues us is the uncertainty about the future. Is our decision right, or wrong? The cure, we are sure, is knowledge. Even if we only knew a bit more. But that isn't enough; we need to add certainty to our knowledge, or our knowledge is still treacherous. So, if we only knew a bit more, and could be certain about it.

And torture seems to be the only way to be sure we can extract the truth. Except, of course, torture is a deal with the Devil, and in a Devil's bargain, you never get what you bargained for. So even torture brings us no closer to certainty; but it does allow us to yield to the temptation to be more like God, at least to have a glimpse of what it would be like to know as God knows.

Which is a lesson you'd think we would have learned by now, even if we discard the original story as a myth. It's a story rooted in three great world religions, and as foundational to Western civilization as the myth of Romulus and Remus, or of the divine Pharoahs, or of the logos forging order out of primordial chaos.

And we even know how this story ends.

Genesis 2: 4-24 through 3: 1-24

And yet not one mention of John LeCarre

or George Smiley.

Is there such a thing as an ethical spy?

A group of current and former intelligence officers and academic experts think there is, and they are meeting this weekend to dissect what some others in the field consider a flat-out contradiction in terms.

The organizers say recent controversies over interrogation techniques bordering on torture and the alleged skewing of prewar intelligence on Iraq make their mission urgent. At the conference on Friday and Saturday in a Springfield, Va., hotel, the 200 attendees hope to begin hammering out a code of ethics for spies and to form an international association to study the subject.

Conference materials describe intelligence ethics as "an emerging field" and call the gathering, not sponsored by any government agency, the first of its kind. The topics include "Spiritual Crises Among Intelligence Operatives," "Lessons From Abu Ghraib," "Assassination: The Dream and the Nightmare" and "The Perfidy of Espionage."

One seldom thinks of spies as having ethical conflicts, outside of LeCarre novels. And even then, LeCarre seems to be a hopeless idealist.

Spiritual concerns would seem to be a constant of the human experience.

Not all agree. "It doesn't make much sense to me," said Duane R. Clarridge, who retired in 1988 after 33 years as a C.I.A. operations officer and who will not attend the conference. "Depending on where you're coming from, the whole business of espionage is unethical."

To Mr. Clarridge, "intelligence ethics" is "an oxymoron," he said. "It's not an issue. It never was and never will be, not if you want a real spy service." Spies operate under false names, lie about their jobs, and bribe or blackmail foreigners to betray their countries, he said.

"If you don't want to do that," he added, "just have a State Department."

And there is always the bottom line:

Ms. Mahle, the former C.I.A. officer, [and one of the speakers at the conference] says merely taking a tough line is not enough. If intelligence tactics are not supported by a public consensus of Americans, they can backfire, she said.

For example, the past capture of terrorists abroad who were then convicted in American courts stirred little controversy. But more recent rendition cases, like the delivery of a suspect to Egypt, where he complained of torture and provided information that turned out to be false, shifted the public focus from the would-be terrorist to the actions of the C.I.A.

"If there's not a consensus, then the public focus will be not on the bad guy you got off the street, but on what the C.I.A. was doing," Ms. Mahle said.

It's all about the effective use of power.

"Reason, Emotion, and Torture"

Reading Harvey Cox's When Jesus Came to Harvard, I made it to the chapter on torture last night.

Cox arranges the book roughly along the lines of the gospel narratives, starting with the opening of the gospels (the "begats" of Matthew) and proceeding through the resurrection stories. The torture chapter has no direct correlation to the gospel narratives, but the reality of crucifixion and the stories of the treatment of Jesus allow him to pause and reflect on what is, again, a live topic.

He begins by noting that we associate torture with medieval Europe, even though torture has never disappeared from the world, nor stopped being employed by governments bent on exerting their power over individuals to whatever degree they deemed necessary. He mentions the theory of Alan Dershowitz, his Harvard colleague and friend, that torture should be legalized and controlled.

Dershowitz's argument relies on the "ticking bomb" scenario, the idea that you know for a certainty that a prisoner has knowledge about a bomb about to explode, and only torture will secure the information in time to save innocent lives. To regulate this practice, Dershowitz would establish a "torture warrant," to be issued under similar circumstance as a search warrant (this book was written in 2004; one wonders how Professor Dershowitz feels about the safeguards of a "warrant" now). The torture method itself would be described in, and regulated by, the warrant; Dershowitz proposes models such as the use of sterilized needles shoved under the fingernails.

Cox presented this proposal to his Harvard classes on Moral Reasoning (his experiences in teaching the class are the basis for this book). The class split almost 50/50 on whether or not torture could be justified, even under the Dershowitz proposal. Many agreed with Martha Nussbaum's sentiment: "I don't think any sensible moral person would deny that there might be some imaginable situation in which torture [of a particular individual] is justified." (Cox, p. 240). Cox raised objections to the "ticking bomb" scenario: victims of torture will tell you anything, torture makes their statements less reliable, not more; it is a "slippery slope" toward allowing torture in less critical cases (much as the Supreme Court has allowed unwarranted searches by police in certain cirumstances); etc. Still, the class sticks, 50/50. So he introduces a few new questions.

How many in the class, he asks, would be willing to insert the sterilized needles under the fingernails?

Only a small number put up their hands. Then I asked those who favored the policy but would not do it themselves to formulate some moral justification for their action, other than mere squeamishness. A sullen silence followed. (Cox. p. 242)

Cox has already pointed out the utilitarianism behind Dershowitz' argument, a "greatest good for the greatest number" the class as a whole is quite willing to accept, secure in the knowledge that they will be among the greatest number, and that, after all, their hands are clean.

Then I posed another question. Suppose, I asked, the suspect is not talking to you but you have his two children-- aged four and seven--in the room. Would you threaten to torture them to get the information? After all, if it is mere mathematics, what is the temporary pain of two children compared to the possible deaths of five thousand people? Not a single person in the class was willing to hurt the children. (Cox, p. 242)

Torture is the last redoubt of power, the final tool of will anxious to impose itself on the world, on the other. In one of the most gripping episodes of "Star Trek: The Next Generation," Capt. Picard, a character regular viewers already sympathize with as the protagonist, is captured by enemies and tortured. It is, of course, all sleep deprivation and psychological torment: no needles, rubber hoses, electric wires. In order to "break" his will, his captor is determined to make Picard say there are four lights shining in his eyes during the interrogations, instead of three. Picard, of course, is rescued, and refuses the final command to "see" too many lights, in a dramatic ending to the story.

But it doesn't end there. In the final scene, secure back on his ship and in position as captain again, he confesses to another crew member that, just before word of his release came, he was ready to say he saw four lights. "I would have said anything," he admits. In fact, he says, I thought there were four lights.

That is all that torture is; it is the ultimate imposition of power on another, more serious and even "ultimate" than death, because as Wittgenstein noted, "Death is the only experience that is not lived through." Torture is; and lived beyond. And that is it's point: not to kill the victim, but to render them so vulnerable they refuse to contest any longer with the will of the torturer.

Cox draws a related lesson, but a different one, from his experience. After one class discussing torture, a student accosts him, angry that the professor has cheated, has introduced emotions into a debate that should be conducted solely on the basis of reason. Cox avers that reason keeps emotion from becoming mere sentimentality, but emotions prevent reason from becoming sterile and lifeless. We need both to conduct moral reasoning.

Might we also say we need both to retain our humanity? That we need both, in order to begin to see the other as human, just as we are? The New York Times reports this morning that there is "mixed support" for the use of warrantless wiretaps. The support depends largely on whether the wiretaps are conducted against "ordinary Americans" (no), or "Americans that the government is suspicious of" (yes). These are not, of course, mutually exclusive categories, but the analysis of the poll respondents, dare I say their moral reasoning, is based more on emotions (fear) than reason. We cannot remove emotions from their moral reasoning process. What could be done to change that emotion from fear to empathy, to recognition that the other is a sister or brother in God?

That is the challenge to the faithful. Not to rail against the system, which will never be corrected enough to save us from ourselves, but to begin to change ourselves, and to guide those around us to seek a similar change.

After all, so long as torture appears reasonable, how moral can we claim to be?

UPDATE: We have met the enemy:

The U.S. Army in Iraq has at least twice seized and jailed the wives of suspected insurgents in hopes of "leveraging" their husbands into surrender, U.S. military documents show.

In one case, a secretive task force locked up the young mother of a nursing baby, a U.S. intelligence officer reported. In the case of a second detainee, one American colonel suggested to another that they catch her husband by tacking a note to the family's door telling him "to come get his wife."

Is torture limited only to physical coercion? In Cox's hypothetical, are we just as bothered by the threat to harm the children? Would that alone be enough to coerce information, and if it was, would we not consider that torture?

And one other thought...

“I know that you believe you understand what you think I said,

"... but I'm not sure you realize that what you heard is not what I meant.”--Robert McCloskey

It's a dangerous thing to parse the words of this President, because paying too close attention to them is seldom repaid by insight. Nonetheless (and thanks to Holden):

BUSH: Well, I said yesterday that other presidents have used the same authority I've had to use technology to protect the American people.

Other presidents, most presidents most presidents believe that during their -- during a time of war that we can use our authorities under the Constitution to make decisions necessary to protect us.

Secondly, in this case, there is an act passed by Congress in 2001 which said that I must have the power to conduct this war using the incidents of war. In other words, we believe there's a constitutional power granted to presidents as well as, this case, a statutory power. And I'm intending to use that power.

Congress says, "Go ahead and conduct the war. We're not going to tell you how to do it."

And part of winning this war on terror is to understand the nature of the enemy and to find out where they are so we can protect the American people.

There'll be a legal debate about whether or not that I have the authority to do this. I'm absolutely convinced I do. Our attorney general's been out describing why.

And I'm going to continue using my authority. And that's what the American people expect.

I'm not sure what he thinks a "legal debate" is, but it's not a matter discussed by like-minded persons in the club room with the cigars and port. It is a question of legality, of constitutionality, of whether or not we have a government of laws, or of men.

The fact that he simply doesn't seem to understand is perhaps the scariest thing about this. At least Nixon understood the consquences of his actions.

There's also the simple matter of: "I told you so." The authorization of force passed by Congress after 9/11 was criticized precisely because it gave the President carte blanche to do whatever he wanted to do. What else can we do now except say: "I told you so"? But at what cost to our nation, and to the trust in governmental entities which our system of government requires?

And none of that even touches on the issue of "using technology to protect the American people," which clearly assumes there is this thing called "technology" which, like a magic wand, automatically protects the nation and never, ever, has any unwanted consequences attached to its use. Consequences like, say, being grossly illegal.

Speaking of which, somebody hand the President a dictionary so he can join this "legal debate":

QUESTION: Mr. President, though -- this is a direct follow-up to that -- the FISA law was implemented in 1978 in part because of revelations that the National Security Agency was spying domestically.

What is wrong with that law that you feel you have to circumvent it and, as you just admitted, expand presidential powers?

BUSH: You said that I have to "circumvent" it. Wait a minute, that's a -- it's like saying, "You know, you're breaking the law." I'm not.

See, that's what you got to understand: I am upholding my duty and at the same time doing so under the law and with the Constitution behind me. That's just very important for you to understand.

Secondly, the FISA law was written in 1978. We're having the discussion in 2006. It's a different world. And FISA's still an important tool. It's an important tool, and we still use that tool.

But, also -- and I looked. I said, "Look, is it possible to conduct this program under the old law?" And people said, "It doesn't work in order to be able do the job we expect to us do." And so, that's why I made the decision I made.

And, you know, "circumventing" is a loaded word. And I refuse to accept it, because I believe what I'm doing is legally right.

"Circumvent" means exactly what the reporter meant: it's a euphemism for "breaking the law," but not a synonym. Circumvent, in fact, is precisely what he has done to both the law and the Constitution, and circumlocution precisely the term to describe his attorney general's explanations for why the President's actions are not illegal or unconstitutional.

But perhaps his reputation for being a buffoon will continue to protect him from too close a scrutiny of what he says.

Who's on First?

Before we leave this issue altogether, consider the closing paragraphs of Andrew Cohen's analysis of the NSA issue, for CBSNews.

Since when is it a constitutional exercise of separation of powers for the executive branch, the prosecutor, to "ensure that civil liberties are being protected," as the Justice Department claims? If the White House had a problem with FISA procedures, as it now says it does to justify its circumvention of those procedures, then why didn't it simply ask the Congress to fix those problems? There is no way the legislators would have said no. And when does the state of emergency end? Since this "armed conflict", unlike every other "war" the United States has endured, has no theoretical end, when will conditions permit a return to the days when the government did not spy on its own people under the guise of "foreign intelligence" gathering?

There's more. "Signals intelligence" between two members of the enemy is quite different from "signals intelligence" between an innocent journalist, lawyer or author and an incarcerated terror suspect or political leader in Iraq or Iran or anywhere else. Surely the former are not "enemy forces" by any measure. So how does this factual distinction play into the legal analysis governing the president's authority to eavesdrop? The Justice Department contends that "the NSA activities are reasonable because the Government's interest, defending the Nation from another foreign attack in time of armed conflict, outweighs the individual privacy interests at stake…" but this argument proves too much. It could be used to justify any intrusion upon privacy since the defense of the Nation always will be more important than any one person's rights.

And, finally, there's the third read. Unlike many of my fellow legal commentators, I do not see all this as a slam dunk loss for the White House. Its AUMF argument is silly, to be sure, and surely FISA means something even today, but the President does have constitutional authority to engage in extraordinary measures during times like this, and it will be up to the Supreme Court ultimately to decide how far those measures can go. By the time these issues reach the High Court, Justice Sandra Day O'Connor, whose "war is not a blank check" sound byte has been rendered obsolete by the White House's position, will be gone, replaced by Judge Samuel A. Alito, Jr., whose view of presidential power is as sweeping as is that of the man who nominated him to the Court.

Perhaps there will be a political resolution to all of this. But if there is not, I'm not convinced that the legal result is going to offer much solace or comfort or satisfaction to the millions and millions of Americans who cringe at the idea that the executive branch has taken upon itself the function of eavesdropping on its citizens, without a court order, and then assuring us that it'll be all right because procedures are in place to ensure civil liberties are protected. Those assurances rang hollow in 1776 and 1787, which is why the Founders incorporated checks and balances and the separation of powers into our instruments of government. And they ring hollow today, even in a time of terror, when in order to protect our rights and liberties the executive branch has by these and other means limited them.

This is absolutely right, and shreds the paltry assertion of Scott McClellan that this was not domestic spying because one end of the phone call was in another country. But there are two other issues mentioned here: one, what will Alito do?; and two: are the courts really the best redoubt in this situation.

I think a review of the Hamdi and Rasul opinions supports Cohen's concerns, but not, perhaps, in the ways one might first think.

First, I agree with Rick: Scalia's dissent in Hamdi seems to be quite sound. Interestingly, opinions in both Hamdi and Rasul were handed down the same day. Scalia expressly connects them through his dissents in both cases, and the connection is not an idle one, because for Scalia the salient issue is American citizenship: Hamdi had it, the plaintiffs in Rasul did not. For Scalia, that makes all the difference.

Which indicates that, at least for Scalia, that issue would trump any other issues of "national security" and require the President to follow the laws.

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal. In the Founders’ view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution’s authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress’s authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U.S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be "much inferior" to that of the British King:

That language goes particularly to the facts of Hamdi (and the question of habeas corpus, not of 4th Amendment issues), but it doesn't even allow a crack of daylight between the express authority of the President, and the implied powers Gonzalez is relying on. Indeed, Scalia seems to expressly reject the argument Gonzalez derives from Hamdi:

It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today’s opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people’s representatives’ determining the need for that suspension (and prescribing the conditions for it), and this Court’s doing so.

The plurality finds justification for Hamdi’s imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides: "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." §2(a).

This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality’s view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns....[citations excluded]. But even if it did, I would not permit it to overcome Hamdi’s entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.

Scalia, in other words, comes down foursquare on the side of Congress to make laws, not on the side of the President to find extraordinary powers for extraordinary times. And he fully supports the basic constitutional rights of American citizens (for Scalia,Hamdi must be tried as a criminal under the treason statutes, or released; and in either case, he is entitled to at least the minimum constitutional protections guaranteed by habeas corpus. It is hard to imagine how Scalia's argument would be different on a fundamental 4th Amendment issue). As he notes in Hamdi:

The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared, "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

Nor does the majority opinion, written by Justice O'Connor, give the Administraiton much solace:

In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.

That's the language Cohen is referring to, when he worries about Alito's much more accomadating position. And again we see that the Administration's position is that "separation of powers" really means "separation of restrictions," so that the Executive is empowered to do whatever is necessary in time of war, and the other branches of government should only defer. As I said, the power of the Roman "dictator."

But does this mean we are out of the woods? No. Justice Thomas took what I think we can safely say will be Alito's position, in Hamdi. ("The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision.") In Rasul, Scalia was joined by Thomas and then Chief Justice Rehnquist. Scalia's dissent in that case was based on the majority's interpretation of Eistentrager, the case of "enemy combatants" captured during World War II, and on the jurisdictional issue Rasul raised:

The Court today holds that the habeas statute, 28 U.S.C. § 2241 extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U.S. 763 (1950).

Would Scalia dissent again, in an NSA case? Frankly, I doubt it, because domestic spying involves American citizens, and Scalia clearly would afford them, even in the face of a national security argument, at least the basic protections of the Constitution. Scalia ends his Hamdi dissent with these words, which offer no comfort to Alberto Gonzalez:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

But if Roberts follows Rehnquist, and Thomas remains true to his dissent in Rasul, and Alito follows his previous declarations on Presidential power, there will be a 6=3 decision.

It is said that when Chief Justice Warren was writing the opinion in Brown v. Board of Education, he held up on publication of it until he had convinced all 9 Justices to sign on. He knew the opinion was so important, and would have such an impact, that no dissent or even concurrence could be allowed. The Court had to speak with one voice and as a united bench on the issue. Such an outcome today, in any NSA case, is not only unlikely, it is almost impossible.

Which brings us to Cohen's final point: this matter requires a political solution, not just a legal one. The Court may, in the last resort, protect our liberty again, but it will do so only with the cooperation of the Executive. That cooperation the Court has no power to compel. Had Dwight Eisenhower been George Wallace, Brown v. Board of Education might well have prompted a crisis of a very different sort.

Scalia makes the matter clear: the real power under our Constitutional system resides in the Congress. It is their obligation to act. There are indications the public wants them to. In the end, it comes down to another comment by Ben Franklin. We have a republic, he reportedly said; if we can keep it.

Badges! We don' need no steenkin'...!

The beat goes on.

Democrats and national security law experts who oppose the NSA program say the Justice Department's opposition to the DeWine legislation seriously undermines arguments by Attorney General Alberto R. Gonzales and others, who have said the NSA spying is constitutional and that surveillance warrants are often too cumbersome to obtain.

"It's entirely inconsistent with their current position," said Philip B. Heymann, a deputy attorney general in the Clinton administration who teaches law at Harvard University. "The only reason to do what they've been doing is because they wanted a lower standard than 'probable cause.' A member of Congress offered that to them, but they turned it down."

But Justice Department officials disagreed, saying the standard the department opposed in 2002 is legally different from the one used by the NSA.

"The FISA 'probable cause' standard is essentially the same as the 'reasonable basis' standard used in the terrorist surveillance program," said spokeswoman Tasia Scolinos, using the term for the NSA program the White House has adopted. "The 'reasonable suspicion' standard, which is lower than both of these, is not used in either program."

Justice officials also said that even under a different standard, the process of obtaining a surveillance warrant would take longer than is necessary for the NSA to efficiently track suspected terrorists.

So it really is all about who's on top. It's about not being answerable to the courts, because the issue is not "What standard do we use?", but, much more importantly, "Who decides that standard has been met?"

Look at the 4th Amendment again:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"Shall issue" means someone has to give a warrant, and that someone has to give that warrant only after a showing of probable cause.

But if you eliminate that "someone," then the standard can be "beezlefluster" just as well as "reasonable basis," or even "probable cause." Especially if the agency seeking the warrant and issuing the warrant (or, in this case, failing wholly to bother with a warrant) has unilaterally decided that "reasonable basis" means the same things as "probable cause."

Or maybe they just decided that "probable cause" isn't even in the 4th Amendment. In which case, they don't have to bother at all.

Which is the point, isn't it? "Under the NSA program, Hayden said, 'the trigger is quicker and a bit softer than it is for a FISA warrant.' " Because that entire history of the development of the concept of probable cause that first year law students struggle to learn is just so, so...legal!

And this Administration can't be bothered with something so paltry as a legal system.

Here be dragons

Gonna be reading the Hamdi decision (which Watchful Babbler made me realize I'd linked to earlier, without realizing it) and trying to get over my outrage so I can return to matters religious and theological.

In the meantime, try to follow the bouncing ball on this one.

In July of last year, four detainees at Gitmo filed an ethics complaint with the California Medical Board against Capt. John S. Edmondson, the doctor in charge of medical care at Guantanamo Bay.

The complaints against Capt. John S. Edmondson, who is licensed by California to practice medicine, allege that he engaged in unprofessional conduct" by running a system in which confidential medical records were shared with interrogators, access to medical care was made contingent on cooperation and medical staff participated in abuse of prisoners.

Those complaints were eventually dismissed by the Board for lack of evidence and lack of jurisdiction.

Candis Cohen, spokeswoman for the medical board, said, "The board has reviewed and closed this complaint because no evidence was found by the [army] surgeon general of medical mistreatment of the patients. Therefore the medical board cannot take any action because we have no jurisdiction to take action against a military physician practising on a military base, absent an action first by the military itself."

Now, the problem with that is, the "investigation" was conducted by a military team which relied solely on questionnaires addressed to the medical personnel involved. This "investigation" was reviewed and approved by the army's surgeon general, and then accepted by the California Medical Board.

Rather difficult to say there was ever a "neutral decisionmaker" involved in any of those steps, isn't it? But wait, there's more.

Detainees allege that medical personnel were directly involved in their interrogation:

"He was regulating the process of the beating," Sarim said of the clinician, according to interviews conducted with detainees by the international law firm Allen & Overy. "This nurse who is regulating the beating process, he is the same person that was distributing medicine previously."

Another Yemeni detainee, Abdulaziz Al-Swidi, also told interviewers he observed nurses participating in beatings during interrogations at Guantánamo.

"The nurse participated with the riot squad by helping putting something in my nose to make me unable to breathe, and this is the same nurse that dispenses medicine and makes diagnoses," he said.

These allegations are not just coming from the detainees; the Red Cross has voiced its concern as well:

In October 2003 an independent, confidential investigation by the International Committee of the Red Cross found that the military used psychological and physical coercion "tantamount to torture" on Guantánamo prisoners, and that medical personnel participated in planning interrogations.

The Red Cross report, which was quoted in a Department of Defense memorandum and by a handful of news agencies that obtained it, called this "a flagrant violation of medical ethics." It said medical information was conveyed to interrogators both directly by medical staff and through the Behavioral Science Consultation Team (BSCT, or "biscuit"), a group of psychologists and psychiatrists assigned to work with interrogators.

The Red Cross, which did not return a request to comment for this story, reported at the time that "medical files are being used by interrogators to gain information in developing an interrogation plan," which is "a breach of confidentiality between physician and patient."

Which puts the lie to the government's claim that it cannot reveal the names of the detainees because that disclosure would be a breach of their privacy.

And then, of course, there is the matter of the force-feedings of detainees, which violates Article 5 of the 1975 World Medical Association Tokyo Declaration. Those force-feedings have prompted another ethics complaint to the California Medical Board, but I can find no word on whether a decision on that complaint has been reached. (an excerpt from Chaplain James Yee's book describing the practice of inserting naso-gastric tubes into detainees, can be found here. Yee describes many of the strikers as depressed, rather than defiant.) And, of course, Bush has signed into law a statute removing the right of habeas corpus which the Hamdi decision (the one Bush is otherwise relying on now) recognized for the detainees.

Can we possibly get more monstrous? Can we possibly trample any more ethics in our stampede to...what? Be safe? Be powerful? Be in control?

I honestly don't know what the point is, anymore.

"What's at stake here, is whether we are a government of laws, or a government of men."--David Cole

Listening to Alberto Gonzales speaking at Georgetown Law School yesterday, Gonzalez' argument is clearly that the Congress has given Bush the powers of a Roman dictator:

Unlike the Consuls, which were required to cooperate with the Senate, the Dictator could act on his own authority without the Senate, though the dictator would usually act in unison with the Senate all the same. There was no appeal from the sentence of the dictator (unless the dictator changed his mind), and accordingly the lictors bore the axes in the fasces before them even in the city, as a symbol of their absolute power over the lives of the citizens.

The dictator's imperium granted him the powers to change any Roman law as he saw fit, and these changes lasted as long as the dictator remained in power.

The implicit link to fascism there (the symbol of the dictator was the symbol of the Italian Fascists) is nothing less than sycnhronicity. And David Cole's response, also at the first link, is absolutely sound on both the law and the attempt by the Administration to turn this into a matter of public approval. The attempt is classic Rove, and it shows, once again, that Rove is absolutely out of his depth now.

And David Cole's praise of the student response is right, too.
Clearly, the kids are alright. (Thanks to jane for the link to watertiger.)

Speaking of due process

This is, perhaps, deserving of a bit more attention:

The US military is clearing the way for executions of condemned terror suspects to take place at the Guantanamo Bay detention facility.

The army has just changed the rules governing the location of military executions.

The new regulations are primarily aimed at service personnel sentenced to death at a military court martial.

Previously executions could only take place at a military jail in Kansas but now death sentences can be carried out anywhere, including the Guantanamo Bay naval base in Cuba.

The army has confirmed the new rules will also apply to any Guantanamo detainee sentenced to death at a specially convened military tribunal.

One of two conclusions is clear: either the military is anxious to kill someone, and not just on the battlefield; or the military is looking ahead to killing a few of the "detainees" at Guantanamo, perhaps the better to block their appeals to the Supreme Court to demand, once again, that they have due process of law.

I would like to be less cynical about the subject, but honestly, I see no reason to be. Even the Army is calling this change a "major revision." The question is: why? And why now? Because transporting detainees to the continental U.S. would destroy whatever legal fiction the Administration clings to that they are not on "U.S. soil" and so not subject to U.S jurisdiction?

If that isn't the obvious reason, I don't know what is. Gonzalez is touting the Hamdi decision as support for domestic wiretapping, but the Court ruled in Hamdi that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." So far, the only decision maker has been the U.S. military.

And now they are going to decide where they can execute people; and then who; and then all that's required is the President's approval.

So, like I say, I'm trying not to be cynical; but it isn't easy.

"Where does this stop?"

I picked this up via Eschaton, from Glenn Greenwald, who notes that there was a proposal to lower the standard of FISA to "reasonable suspicion." One reason Congress didn't make that amendment to the statutes was because the Bush Administration opposed it. One reason the Bush Administration proposed it was because it might be unconstitutional:

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

This is the fundamental issue that we simply cannot talk around: once you start pulling at the threads of the basic legal fabric of the country, the whole thing unravels quite rapidly.

So Gen. Hayden's statement that the standard in the 4th Amendment is "reasonable suspicion" is not just a simple error: it tugs at the tapestry of our entire legal system and, if put into practice, might undo much more than they bargained for.

The President simply cannot use his Constitutionally created office to undo provisions of the Constitution, without undoing the Constitution itself. And even his Department of Justice understands that.

But apparently Alberto Gonzalez doesn't.

The Three Big Lies

One is: "We're from the government. Trust us."

Well, what follows is from the government.

The NSA has simply thrown FISA away, along with the 4th Amendment, on the authority of the President and the Attorney General:

I've talked in other circumstances -- I've talked this morning -- about how we've made very aggressive use of FISA. If you look at NSA reporting under this program -- you know, without giving you the X or Y axis on the graph -- NSA reporting under this program has been substantial but consistent. This is NSA counterterrorism reporting. Substantial but consistent. NSA reporting under FISA has gone like that. FISA has been a remarkably successful tool. We use it very aggressively.

In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can't -- and I understand it's going to be an incomplete answer, and I can't give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason. I think I've got -- I think I've covered all the ones you raised.

The position of our government is that the President has the power to reshape law to suit his preferences. He is the three branches of government in one office: he acts as the Supreme Court (interpreting law) and Congress (writing legislation), and as the head of the Executive then executes the new law. Beyond even that, he also gets to interpret or set aside, as it suits him, the provisions of the very Constitution which actually gives him any authority in the first place. His position is that, having been elected, he is now superior even to the law that establishes his office and authority. That this is his position is now beyond argument.

Gen. Hayden's statments make this perfectly clear:

QUESTION: Quick follow-up. Are you saying that the sheer volume of warrantless eavesdropping has made FISA inoperative?

GEN. HAYDEN: No. I'm saying that the characteristics we need to do what this program's designed to do -- to detect and prevent -- make FISA a less useful tool. It's a wonderful tool, it's done wonderful things for the nation in terms of fighting the war on terror, but in this particular challenge, this particular aspect -- detect and prevent attacks -- what we're doing now is operationally more relevant, operationally more effective.

This, apparently, is the General's definition of "operationally effective:"

QUESTION: General, first, thank you for your comments. And I think you somewhat answered this in your response, and this goes to the culture and just to the average American. Let me just say this -- that domestic spying and the faith communities are outraged. Churches in Iowa, churches in Nebraska, mosques across the board are just outraged by the fact that our country could be spying on us. You made a point that the young lady at State Penn shouldn't have to worry, but we're worried that our country has begun to spy on us. We understand the need for terrorism and the need to deal with that, but what assurances -- and how can you answer this question, what can make Americans feel safe? How can the faith community feel safe that their country is not spying on them for any reason?

GEN. HAYDEN: Reverend, thanks for the question, and I'm part of the faith community too. And I've laid it out as well I could in my remarks here as to how limited and focused this program is, what its purpose is, that its been productive. We are not out there -- and again, let me use a phrase I used in the comments -- this isn't a drift net out there where we're soaking up everyone's communications. We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That's what we're doing.

The unnamed "reverend" who asked that question followed that answer with a more cogent question, which went unanswered:

QUESTION: Just know, General, that the faith communities will take that back, but the faith communities are scared. Where does this stop?

Where, indeed? The general's answer is the very definition of a"fishing expedition." Governments never admit that they are just scooping up every available piece of information. They always claim they are only picking on people whom they have "reason to believe" are up to no good. But even that seemingly limited assertion of power is not the standard of search authorized under the 4th amendment.

Nor is it the claim that "the Attorney General said it's okay" a legal defense. That is, quite simply, a variation on the rejected defense at Nuremberg. The General is effectively saying he is only following orders. But the attorney general has no authority to make this order, or to justify this conclusion. for the simple reason that even the Supreme Court does not have the power to lower the standard for search below probable cause. The Court may, in a specific instance or situation such as this, redefine probable cause in a different way than it has ever been defined before, but frankly, that would be a Bush v. Gore situation, in which the Court would be forced to either discard stare decisis, or to hold that its conclusion applied only to the facts before it, and could never be used by any parties ever again.

Which would be frightening enough. For the Attorney General to assert that authority is absolutely unconstitutional. And the only solution now is a complete housecleaning. Alberto Gonzales must be impeached, or otherwise removed from office. George W. Bush must be removed from office. Dick Cheney must be removed from office. Any official in the Administration that has supported this absolutely illegal and fundamentally unconstitutional interpretation of the law and of Presidential power, must be removed from public office.

The system of government we have simply cannot sustain this kind of absolute disregard for its foundational principles, and its foundational document. All governmental power flows from the Constitution. To find that this document gives certain governmental officials power over even the document itself is not merely unconstitutional: it is tyranny.

Addendum: this press conference is also worth listening to, to catch the defensive, aggressive tone, in which Gen. Hayden made his assertions. The question and answer session is available at DemocracyNow! This is not an issue that is going to be allayed by assurances that the government can be trusted, or that it is only acting to protect us. The ordinary people who asked questions were clearly upset, clearly concerned, and clearly not reassured by the General's answers.

Nor should they be.

Hand me that chair....

This is important enough to be perfectly clear about:

"The trigger is quicker and a bit softer," said General Hayden, an Air Force officer who is now the principal deputy director of the new national intelligence agency, "but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates."

The standard laid out by General Hayden - a "reasonable basis to believe" - is lower than "probable cause," the standard used by the special court created by Congress to handle surveillance involving foreign intelligence.

General Hayden said that warrantless searches are conducted when one of a "handful" of senior officers at the security agency determines that there is a "reasonable belief" that one party to a call between someone in America and someone overseas has a link to Al Qaeda.
...
In his speech this afternoon, President Bush, who was accompanied by the Senate Intelligence Committee chairman, Pat Roberts, Republican of Kansas, also said that decisions to begin wiretaps without court approval were based on a reasonable belief of a link to terrorists.

The intercepts were made, he said, on calls involving "somebody inside the United States and outside the United States, and one of the numbers would be reasonably suspected to be an Al Qaeda link or affiliate."

"If they're making a phone call in the United States, it seems like to me we want to know why," Mr. Bush said.

He also cited a recent Supreme Court decision, Hamdi v. Rumsfeld, to bolster his argument that bypassing the courts fell within presidential power during a time when the country is fighting terrorism.
....
General Hayden defended the program's constitutionality. He said the lower, "reasonable belief" standard conformed to the wording of the Fourth Amendment, asserting that it does not mention probable cause, but instead forbids "unreasonable" searches and seizures.

"The constitutional standard is reasonable," he said. "I am convinced that we are lawful, because what it is we're doing is reasonable," he said.

The Fourth Amendment, however, reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Times article quotes the 4th Amendment so I don't have to. The minimum standard in law for any search warrant is set by the 4th Amendment, and that standard requires "probable cause." The plain language of that Amendment is perfectly adequate to set out what is required, even of Congress, even under the FISA law.

So let's be perfecly clear about this: the President of the United States believes, and has been advised by legal counsel, that during a time when the country is fighting terrorism, he has the power to suspend the Constitution, the very document that gives him an elected office to hold, and to do what he thinks is fit.

And that is the principle his spokesman and new deputy director of intelligence, has espoused, clearly with his approval.

I grew up during the Cold War, when nuclear annihilation of life as I knew it was a distinct possibility, and at no time during that period did any President arrogate to himself the power to suspend any provision of the Constitution just because the USSR had nuclear missiles ready to launch at us.

This man is unfit to hold the office of President, and any politician who is scared or ashamed to say that in public is not fit to hold their office, either.

If they cannot defend the Constitution against all enemies, foreign and domestic, I have no use for them.

Neighbor, how long's it been

since you had a big, thick, steamin' bowl o' Ivins brand ranting?

Well, that's too long.

The Long View

Kurt Vonnegut just made an interesting point on NPR's Morning Edition.

Speaking about his early novel, Player Piano, Vonnegut said that, as an employee of the PR department of General Electric, he was shown an early milling machine, one that worked off of punch cards (and I am old enough to have programmed computers by punch card. I did it in a college computer course, in an age when monitors" were called "VDT's," and were reserved for senior Computer Science majors. The rest of us did key-punch.) He noted that everyone stood around watching this new machine work, and they were quite sheepish about the implications. Machinists, said Mr. Vonnegut, were like musicians: men of great talent and skill, and this machine was basically replacing the violin player.

Or the pianist.

What struck me was how he described it. Everyone was thinking, he said, "What are we going to do with these wonderful men who have been so useful to us?" His novel arose from the recognition that "We have to give people something to do with life."

I'm rather surprised we don't think that way anymore. On the other hand, we do. Vonnegut goes on to analyze human activity in terms of tribes. He dissects the discussion of "intelligent design" in a surprising manner. Scientists, he argues, are behaving tribally by seeking to exclude the question "Where did we come from, and how is this marvelous machine (the human body) possible simply from the process of natural selection?" As Vonnegut says, it is what we're thinking about all the time: "How the hell did we really get this way?," and it is a bit peculiar to argue we cannot think that way inside the science class, when we think that way outside the science class.

Which is not, in the black/white terms of our public discourse, to say that the fundamentalists are right, or that Intelligent Design is either good science or good theology. But why do we think we can exclude the fundamental questions of philosophy (or theology) from certain fields of thought, and still fully understand ourselves, or our world?

So how do we still think about people as humans, not just widgets (the mythical fungible good of law school scenarios)? Mega-churches, primarily; the gospel of wealth which teaches that you, yes, you right there, are important enough to God to be rich and happy and maybe even famous. It is a poor replacement of an answer, but it is a very human replacement for an answer we have otherwise removed from consideration.

And it arises because our systems are failing to save us; so we are looking for a new system for our salvation. Consider the news today: Ford Motor Company is set to announce huge layoffs, primarily in its American factories. Part of the reason is marketing: Ford has been losing market share for over a decade now. But the most repeated reason is health-care costs. Many of us in left blogistan have hoped that the rising cost of health care on GM and Ford would lead to a rational national health care system such as the ones Europe and Canada and Japan have. But the system refuses to be our saviour. The American answer to the problem, instead, seems to be: employ fewer people.

And this time, we don't seem the least bit concerned about what those people are going to do with their lives.

What's Puzzling You is the Nature of My Game

The cunning genius of American foreign policy:

DAMADOLA, Pakistan - Sympathy for al-Qaida has surged after a U.S. airstrike devastated this remote mountain hamlet in a region sometimes as hostile toward the Pakistani government as it is to the United States.

A week after the attack, villagers insist no members of the terror network were anywhere near the border village when it was hit. But thousands of protesters flooded a nearby town chanting, "Long live Osama bin Laden!"

Pakistan's army, in charge of hunting militants, was nowhere to be seen.

The rally was the latest in a series of demonstrations across Pakistan against the Jan. 13 attack, which apparently targeted but missed al-Qaida's No. 2, Ayman al-Zawahri.

The military still mans numerous checkpoints in the area, but it appears to be keeping a low profile so it will not inflame villagers still seething over the deaths of 13 civilians, including women and children, in the attack.
....
"This attack has increased our hatred for Americans because they are killing innocent women and children," said Zakir Ullah, one of 5,000 demonstrators in Inayat Qala, a market town about three miles from Damadola

The Church Militant v. The Kingdom of God

The church militant is seldom the church triumphant unless it has the power of the state behind it and so can compel membership to stay with it. This, ultimately, was the failure of the Roman Catholic church in response to the challenge of Martin Luther, who was protected by powerful men in Germany from the militant power of the Church, which at one point wanted him dead.

But that power doesn’t exist at all today, and every church, the more strident it gets, is reminded that its membership rolls are comprised entirely of volunteers, and that what holds a group together is not their enemy, but their common purpose.

The SBC and the UCC are figuring that out again.

After purging liberals from their ranks, Southern Baptist conservatives who won control of their denomination are now taking aim at each other.

The Rev. Wade Burleson, a Baptist leader from Oklahoma, says fellow conservatives who crusaded to only elect leaders who believe the Bible is literally true are carrying their campaign too far, targeting Southern Baptists who disagree with them on other issues.

These leaders, he wrote on his blog, are "following the same battle plan conservatives used to defeat liberalism," and have started a "war" for the future of the SBC.

And what is it about? It is, of course, about boundaries:

"The Southern Baptist leadership is so ideologically driven that it's almost impossible for them not to continually draw lines and narrow the boundaries," [the Rev. Bill Leonard, dean of Wake Forest Divinity School in North Carolina] said. "In the early stages, this was publicly evident with the moderates and liberals. Now, when the convention meets annually in June, you wonder who they're going to throw out this year. There's always somebody."

The overall danger in this analysis is the focus on numbers, of course. Church is not about how many people you put in the pews. But there is the Church Ideally, and the Church Really, and every pastor knows it.

Every pastor also knows that, when it comes to a fight in the church, there are no winners, only losers. Every one ends up wounded, and institutions die from those wounds. Only the most egotistical of pastors stay and fight when it is their ministry on the line in the congregation. They stay, and fight, and the church loses, and the wounds inflicted almost never heal.

The Southern Baptist Convention has learned that having an enemy to fight gives the leaders of the fight tremendous power, but it is like fire that burns through wood: pretty soon the fire burns out, and leaves nothing but ashes behind. You can pile up more wood, hoping to keep the blaze going, but it’s a futile action. An institution simply cannot continue on the basis of continually having an enemy to be opposed to. External enemies are too far away, and too soon not threatening enough. Internal enemies are too few, and too soon expelled. And then you start to eat your young.

When the church is all about power politics, the church loses.

When the church insists that the first shall be last, and the last first, the church becomes truly the church; but aye, there’s the rub! When the church preaches humility, it becomes the Church of Sacrifice for Meaning and Belonging, and few are willing to join that church. Better to be the Church of Meaning and Belonging; and the shortest distance between that goal and the present, is to find an enemy.
But that enemy is soon burned up. And you are back to the fight among members, the fight for a new identity, and since fighting is the only identity source they know, fighting is what they will do.

And that's the other thing a pastor learns early in his ministry: nobody joins a church in order to fight. The people who do, are precisely the people you don't want in their church. Because the moment they run out of enemies, they create them. They turn on you, and the congregation. People who love nothing more than a good fight, love nothing more than a good fight. They are the person on fire, but to that person, the whole world looks like wood.

Or a place to practice the tolerance of intolerance:

CLEVELAND, Jan. 19 - Leaders of the 1.3- million-member United Church of Christ are reporting mixed statistical and financial outcomes -- both positive and negative -- during the six-month period that followed its General Synod's controversial decision to affirm support for same-gender marriage equality.

Since July, about 49 churches -- or less than one percent of the UCC's 5,725 churches -- have voted to disaffiliate, according to the denomination's research office. Most, but not all, of the departures appear related to disagreement with the marriage- equality resolution.

Bland statistics hide the bitter reality of this fight. The UCC has a very peculiar polity, one which has lead to an almost absolute division between General Synod and Cleveland (where the UCC offices are), and the local congregations. Resolutions of Synod are not binding on the local church, but that freedom from restraint works both ways, and Synod is often far ahead of, or even far apart from, the local church on many social justice issues. It isn't a matter of social justice so much as it is a matter of pastoral care. As a UCC pastor I had to deal with a family whose only son had been shot to death in a robbery. They learned that the church they had been raised in officially opposed the death penalty, from reading the back of a UCC published church bulletin. The shock and pain was so great for them they left the church, and I don't know if they ever returned.

Freedom is not only "another word for nothing left to lose."

While officially tolerant of different points of view, I know from experience that Associations and Conferences (the sub-groupings of the UCC) put tremendous pressure on pastors (the only group they can pressure) to get their churches to accept the more highly publicized resolutions of Synod, such as ordination of homosexuals to the ministry, and now, gay marriage. Churches which disagree with these positions find their voices ignored and their pastors find themselves between their autonomous congregations (such is the polity of the UCC) and the Conference Minister who has the power to make their move to a new church in the future pleasant, or almost impossible.

To the man with a hammer, the whole world looks like a nail. Which means hammering out justice is not the simple matter it often appears to be.

So the church mlitant is seldom the church triumphant, because the church militant is seldom the church of Jesus of Nazareth. There is nothing militant about an empire, a basiliea tou theou, in which the first are last, and the last first; a kingdom that is announced not by being angry with the way it is presented in the media and reacts as the world would react, but a church that teaches you go to the extra mile, turn the other cheek, offer the coat off your back, and share your food with those who don't have any, without asking into their moral status, their religious beliefs, their personal behavior, or their political opinions.

The biggest problem with being the church is that you cannot define yourself by your enemies, or even by the enemies your actions create. You have to define yourself by God. And that will leave you neither militant, nor triumphant; but merely humbled.

"Pleased to meet you, hope you guess my name"

However did the mainstream of a religion founded by a person who was all about love come to be defined by who it hates?

by Egarwaen

A comment from Street Prophets.

The comment related to the cancelled ABC series, "Welcome to the Neighborhood," in which a gay couple (the Wrights) won the hearts of 7 neighbors to be allowed to move into their neighborhood. Apparently this is one piece of the puzzle, and a beautiful thing it is:

...the neighbor who was the Wrights' earliest on-camera antagonist - Jim Stewart, 53, who is heard in an early episode saying, "I would not tolerate a homosexual couple moving into this neighborhood" - has confided to the producers that the series changed him far more than even they were aware.

No one involved in the show, Mr. Stewart said, knew he had a 25-year-old gay son. Only after participating in the series, Mr. Stewart said, was he able to broach his son's sexuality with him for the first time.

"I'd say to ABC, 'Start showing this right now,' " Mr. Stewart said in an interview at his oak kitchen table. "It has a message that needs to be heard by everyone." (Mr. Stewart first discussed his son publicly with The Austin American-Statesman.)

I absolutely know no other way to understand that, than positive. So why has ABC decided not to air the series, and not to sell it to anyone else?

Because Disney wants to make a franchise out of The Chronicles of Narnia, and that franchise depends heavily on Christian evangelicals spending money at movie theaters. ABC says there is no connection. But the Southern Baptist Convention and Focus on the Family seem to think otherwise:

In a recent interview, Richard Land, an official with the Southern Baptist Convention involved in the negotiations with Disney last year to end the group's boycott of the company, said he did not recall any mention of "Neighborhood." He added, however, that had the show been broadcast - particularly with an ending that showed Christians literally embracing their gay neighbors - it could have scuttled the Southern Baptists' support for "Narnia."

"I would have considered it a retrograde step," Mr. Land said of the network's plans to broadcast the reality series. "Aside from any moral considerations, it would have been a pretty stupid marketing move."

Paul McCusker, a vice president of Focus on the Family, which had supported the Southern Baptist boycott and reaches millions of evangelical listeners through the daily radio broadcasts of Dr. James Dobson, expressed similar views.

"It would have been a huge misstep for Disney to aggressively do things that would disenfranchise the very people they wanted to go see 'Narnia,' " he said.

There's another piece to this puzzle, too:

While other ABC shows have gay characters - including the new comedy "Crumbs" - "Neighborhood" features a real gay couple and their prospective neighbors in a continuing dialogue about homosexuality, including interpretations of the Bible

I am going into this amount of detail, because details matter. One last detail, before the discussion: Stephen Wright, one of the victors who won the house, was recruited for the series by his church.

Boundaries are all about who is out, not about who is in. I would like to say that is otherwise, but it is true. Boundaries are drawn in exclusion, and always defined in the negative. This is truer in churches than in many other institutions, organizations, or groups of people, because churches are voluntary, and require firm boundaries to maintain their identity. Perhaps over time even creeds are softened into confessions of faith, not professions against heresy; I still say the creeds today because of the affirmations they are for me, and because I need their requirements to lock out my own desires, and include in God's good will.

But the boundaries we draw around God, only hurt us, and we alone are responsible for them. Those boundaries are real, and yet they are internal. External boundaries also get drawn, but they are drawn always including us, and leaving us at the center.

And when they are drawn to leave someone out, they leave God out. Because Jesus did not say he would be with the faithful homeless, the confessing criminals, the baptized ill and infirm. He only said he would be the least of those among us; with the powerless, the marginalized.

Christianity is not about power, but about powerlessness. Boundaries cannot be enforced without a display of power, which is what the SBC and Focus on the Family are all but bragging about here.

It is worth remembering that whenever we draw lines against other people, we draw lines against God.

Can We Talk?

Apparently, it depends entirely upon what we say, and how we say it:

An experiment in open expression and free speech has proved a bit too free for The Washington Post and its Web site.

The newspaper company has temporarily shut down Post.blog -- a section of Washingtonpost.com that invites reader comments -- after receiving hundreds of posts, many using profane or sexist language, responding to columns by The Post's ombudsman, Deborah Howell.
...
The episode was another demonstration of the unbridled -- and often uncivilized -- discourse that can take place on the Internet around political issues. The Los Angeles Times faced a somewhat similar situation in June when it enabled online readers to rewrite one of the newspaper's editorials about the Iraq war; the paper dropped its "wikitorial" feature after some users posted obscene photos and foul language.

Now, to be sure, this incident has sparked a lot of interest in left blogistan, and the Post was not entirely wrong in its reaction. Maybe. Perhaps. Depending on your idea of language, actually.

Lenny Bruce is now forgotten, largely, although he should be remembered as the patron saint of this issue. "In freedom of speech, the accent is on freedom, not on speech." He was tried for obscenity, a conviction later overturned, but one has to wonder how much of his problem was telling the truth: "He said that 'every man who professes to be a man of God and owns more than one suit is a hustler - so long as there are people in the world who don't have any.' " John the Baptist couldn't have put it any better.

Bruce's problem was with the police authority, but what he had to say about his legal problems and freedom of speech is interesting:

LENNY BRUCE: I don't know if it's a message for humanity, but my point of view is that under our constitution no American citizen is born with an original sin. Therefore, the burden is not upon any of the citizens in our country to prove that our speech is beyond reproach, but respected and protected by the constitution. The difficulty I've had is with the people who confuse themselves with the authorities. Which I believe is a quasi-religious point of view.

There is something almost quasi-religious in the concern of the Washington Post over the language used on its blog. It is, according to the opening paragraphs, "profane and sexist" language that is objected to. And certainly, voicing opinions in the crudest and most denigrating possible terms doesn't do much to advance a civil discourse.

But then, political discourse in this country has seldom been civil, and when it is, it is usually the stultifying hand of the "status quo" which seeks to set the terms of civility, all the better to control what is said, and what is heard. The assault on that status quo has been the hallmark of American disdain for hypocrisy since at least the Boston Tea Party:

"Why in hell," he observed impatiently, "do all them goddam hypocrites keep the poor bums waiting for two, three hours while they get off their goddam whimwham? Here is a hall full of men who ain't had nothing to speak of to eat for maybe three, four days, and yet they have to set there smelling the turkey and the coffee while ten, fifteen Sunday-school superintendents and W.C.T.U. [Women's Christian Temperance Union] sisters sing hymns to them and holler against booze. I tell you, Mr. Ammermeyer, it ain't human. More than once I have saw a whole row of them poor bums pass out in faints, and had to send them away in the wagon. And then, when the chow is circulated at last, and they begin fighting for the turkey bones, they ain't hardly got the stuff down before the superintendents and the sisters begin calling on them to stand up and confess whatever skullduggery they have done in the past, whether they really done it or not, with us cops standing all around. And every man Jack of them knows that if they don't lay it on plenty thick there won't be no encore of the giblets and stuffing, and two times out of three there ain't no encore anyhow, for them psalm singers are the stingiest outfit outside hell and never give a starving bum enough solid feed to last him until Christmas Monday. And not a damned drop to drink! Nothing but coffee--and without no milk! I tell you, Mr. Ammermeyer, it makes a man's blood boil."

H.L. Mencken, from 1948, writing about "A Bum's Christmas." That version was published on the editorial page of the Wall Street Journal in 1998. Risible stuff, I should think, if posted on the pages of a blog. Not exactly newsworthy, however, if published on the editorial page of a major newspaper.

At least, I don't recall it stirring a flap 7 years ago. It's an excellent story, by the way; I highly recommend it.

Which is not to say I condone its tone, language, thesis, or conclusions. But it is more true than false, and a stinging rebuke of religion and reformers and social workers.

Imagine anyone publishing it today. Perhaps we tolerate it not only because Mencken was a fine writer, but also because he's no longer a contemporary.

Which brings me around to my point: certainly some of the comments at the WaPo blog were vile, obscene, unpleasant, rude, and inflammatory. I've read enough comments at enough websites to know what to expect. When I started posting comments in the "Politics" and "White House" sections of Salon's "Table Talk," back during Clinton's administration, the rest of Table Talk considered us the part of the website where you locked your doors and didn't stop for the red lights. We were raucous and rude and nasty and biting, and we were proud of it. Sort of like the characters in Scorsese's "Gangs of New York," without the physcial violence. We liked nothing better than a good verbal brawl over political issues. It wasn't a good discussion if we weren't all bruised and exhausted before the subject was.

It's the nature of politics in America, and it comes directly from the experience of politics in Europe (especially England), and the nature of freedom. Freedom is an unbridled affair, and that's as it should be.

Our language should follow suit, and our public fora shouldn't be squeamish about it.

Important matters are at stake. How we talk about them, in what language we talk about them, is the least of our worries.

"But He has seen me watching you"

Via streetprophets I find this, which deserves as wide an appreciation as possible:

Reflection for the month - Brothers and Sisters

We invite you to join the Pope and Christians throughout the world in reflecting on his prayer intentions for this month:


It is an interesting fact that Jesus never tried to 'convert' people. When he healed the Roman centurion's servant, for example, he did not demand that the centurion become one of his followers. He simply commended him for his faith: 'Not even in Israel have I found faith as great a this' (Lk.7:9). Jesus did not try to convert the gentile Syrophoenician woman, but simply told her that her daughter would be cured (Mk. 7:24-30).

Rather, Jesus entered into dialogue with people of other faiths, sharing his story with them, reaching out to the mystery of God active in their lives. He was never coercive; nor should we be. The Good News of Christ's life, death and resurrection should give wings to the feet, and voice to the tongue. Christians of all denominations are called upon to share the Good News with one another, because they simply cannot bottle it up, not because they don't respect others' beliefs or think that other people cannot be saved. We cannot truly pray to God the Father of all if we treat people as other than sisters or brothers, for we are all created in God's image. Treating people in this respectful way fosters reconciliation and peace among peoples everywhere.

And where this comes from:

This week sees the start of the Octave of prayer for church unity. It has taken us centuries of misunderstandings to reach the point where Christian churches can dare to do that most obvious thing: pray together. Images like those of John Paul II praying in Canterbury with its Archbishop, or gathering the faith-leaders of the world in Assisi, have taught us so much. When we come close to those of other traditions, and know something of their riches, we can be grateful for the extraordinary fullness of Catholic tradition, and at the same time marvel at the uprightness of Presbyterians, the Friends' passion for peace, the openness of Hindus, the devotion of Moslems. This is the week when we ask our God to warm our hearts to take in all his children. If the chance arises, it is the week when we should pray with strangers, remembering St Peter's words (Acts 10,34): The truth I have come to realise is that God does not have favourites, but that anyone of any nationality who does what is right and fears God is acceptable to him.