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April 04, 2009

Dude...Where's My Country?

Congress seems determined to dispense with our freedoms. And to think these are the folks who called Bush a fascist:

Steve Aquino at Mother Jones asks, "Should President Obama have the power to shut down domestic Internet traffic during a state of emergency? Senators John Rockefeller (D-W. Va.) and Olympia Snowe (R-Maine) think so." I've highlighted what I think are the interesting passages in the article.
On Wednesday they introduced a bill to establish the Office of the National Cybersecurity Advisor--an arm of the executive branch that would have vast power to monitor and control Internet traffic to protect against threats to critical cyber infrastructure. That broad power is rattling some civil libertarians. The Cybersecurity Act of 2009 (PDF) gives the president the ability to "declare a cybersecurity emergency" and shut down or limit Internet traffic in any "critical" information network "in the interest of national security." The bill does not define a critical information network or a cybersecurity emergency. That definition would be left to the president.

The bill does not only add to the power of the president. It also grants the Secretary of Commerce "access to all relevant data concerning [critical] networks without regard to any provision of law, regulation, rule, or policy restricting such access." This means he or she can monitor or access any data on private or public networks without regard to privacy laws.

The Mother Jones article quotes a number of sources who argue that the proposed bill significantly undermines the Constitution and makes a mockery of existing privacy laws. But I think the main problem with the proposed legislation is that the operational justification for it has not been made. There are two parts to this proposal. The first is the ability to shut down the network in whole or in part due to a "cybersecurity emergency" and the second is the implied power to wiretap without a warrant in certain circumstances, where such circumstances are defined by the President.

I'm rapidly losing count of the number of mornings when I wake up and wonder if I've been teleported to the EU.

I am not necessarily opposed to the vigorous exertion of Executive power in a national emergency. When President Bush was in office I argued - repeatedly - that the NSA wiretapping program and SWIFT terrorist tracking program were not only not violative of the 4th Amendment, but were prudent exercises of the president's Article II authority. People seem to forget that we have three distinct branches of government, each with a different role to play in governing this nation. Clarence Thomas, the most reliably conservative justice on the Supreme Court, spoke compellingly on proper deference to the Executive branch in his dissent to Hamdan v. Rumsfeld:

As I explained in Hamdi v. Rumsfeld, the structural advantages attendant to the Executive Branch--namely, the decisiveness, " 'activity, secrecy, and dispatch' " that flow from the Executive's " 'unity,' (quoting The Federalist No. 70, p. 472) --led the Founders to conclude that the "President ha[s] primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations." Consistent with this conclusion, the Constitution vests in the President "[t]he executive Power," (Art. II, §1), provides that he "shall be Commander in Chief" of the Armed Forces, (§2), and places in him the power to recognize foreign governments, (§3). This Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation's security in the manner he deems fit.

... In such circumstances, as previously noted, our duty to defer to the Executive's military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments "'are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.'

Having argued that George Bush possessed the authority to take necessary steps to protect national security for the past 8 years, I can hardly double back on that position now. In any event, I wouldn't even if I could; not being a huge fan of the Kerr Effect:

Orin Kerr proved hilariously right in comments section of NYT article. If there is anything more delicious than watching a passel of Manhattan libs suddenly morph into staunch strict constructionists, I'm not sure what that might be.

The word for the day, boys and girls, is "unreasonable". As in "unreasonable search and seizure".

It's true that I don't trust Barack Obama farther than I can throw him, but he was duly elected President of the United States and to contend that our personal likes and dislikes should be dispositive in the exercise of Executive power is a fool's errand. What bothers me most about this story is that this isn't the President claiming he has the right to do his job should a national emergency arise. It's Congress, blithely legislating away our Constitutional rights.

The remedy for intolerable exercise of Executive power is written right into the Constitution: impeachment. In the mean time, Congress has no business providing advance cover for a phenomenon which makes us all acutely uncomfortable (the undeniable truth that in times of national emergency, Presidents can and do "stretch" the Constitution a bit).

As Richard Fernandez so succintly put it,

This has the potential for abuse written all over it. Democrats should ask themselves whether they want any future President to have this power. Because the political system may live to regret passing an act with such blanket authority. Maybe not today, or tomorrow, but as Rick Blaine once said, "soon and for the rest of your life."

What I want to know is, where are all the patriots who assiduously maintained - evidence to the contrary notwithstanding - that Barney the White House terrier had shredded the 1st and 4th Amendments and turned America into a police state? We haven't been attacked since 2001. In a state of emergency, I don't want the President of the United States to stop and justify his decisions. If we're attacked, I don't care whether the President is a Democrat or a Republican: I want him to act to protect our security first. He can worry about explaining it all to us when the emergency is over.

But I'll be damned if I want Congress waving away our Constitutional rights and granting the President blanket authority in advance. That way lies madness.

This administration seems hell bent on protecting us from all the wrong things, but unless we plan on devolving into a Banana republic, the rule of law is all we have. Both sides need to start respecting it.

Posted by Cassandra at April 4, 2009 10:42 AM

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...the rule of law is all we have. Both sides need to start respecting it.

Problem is that the side presently *writing* the laws expects us to obey them -- but disregards them when it inconveniences them.

Repubs/Conservatives who flout (or skirt) the law are castigated and Dems/Libs who do the same are given a pass.

You don't have a level playing field when one side ignores the rules but insists the other side obey them scrupulously, then exacts penalties for infractions. Democrats only care about the rules when an especially egregious violation attracts public outrage -- for the main, they're not concerned one whit with rules, they're concerned with *winning*.

Dems won't start respecting the laws unless there is equal punishment for equal violation, and right now, they're convinced they've immunized themselves from punishment, and they'll remain so until the GOP shakes off its self-imposed inferiority complex and starts going nose-to-nose with them.

Posted by: BillT at April 4, 2009 01:30 PM

Huzzah! Or, what Bill said.

Posted by: Manchurian Bubba_hun at April 4, 2009 05:33 PM

What BillT said AND, until the media starts treating them the same. It is primarily the media coverage that generates outrage, and when the media only hypes up Republican infractions, that's all the public gets outraged about.

Posted by: lumpy at April 4, 2009 10:46 PM

Oh ye of little faith! Do you truly believe that Pbo the Messiah would exercise such authority for some nefarious purpose? Do you truly believe that his acolytes (zombies) would in any way shape or form do anything to restrict our freedoms or liberties in advancing their agenda???

Shame, shame indeed.....

But then, I am reminded of what possibly may be the most prophetic and best scene I have ever seen in a movie...


(CVA 63; CVA/CV 66; LKA 117; AS 36/SubRon 6; DE/FF 1085....)

Posted by: Kbob in Katy at April 5, 2009 09:33 AM

I can sum up the root cause of this problem as Congress's primary character flaw: a distinct lack of accountability and give a damn.

When the constituents who elected these jerk-offs who flouted false promises with honeyed-tongues get off their collective duffs and press forward with holding feet to the fire, then we will see the acknowledgment by Congress that there is at least half of this country, at the very least, who will not put up with their bullshit any longer.

I'm guessing lack of action on the part of the citizenry could be due to ignorance of their full capabilities as a constituency. If we all would realized the power that is vested in ourselves, Congress would think twice. Some folks need their memories jogged.

If that would happen then perhaps Congress could put some restraint on the unrestricted whims of this current administration.

Posted by: Red at April 5, 2009 10:11 AM

In November 2005 the United Nations tried to do almost the exact same thing. I recall that liberal democrats and socialists were firmly behind the idea until they realized just what kind of hornets nest they stirred up, then they let it quietly fade away.
Those kind of people never forget silly ideas and they never give up on them. The idea was simply put on a shelf and modified from time to time to await just the right moment, which I'm assuming is now.
I'm not at all suprised

Posted by: Joatmoaf at April 5, 2009 07:04 PM

In spite of all the outrage over vote tampering,
trying to disqualify military absentee ballots,
untraceable campaign contributions,
median lap dogs jumping when their DNC masters whisper Rush,
resurrecting the fairness doctrine,
lying about latin american drug gang's weapons sources,
refusing to do anything about illegal immigration/immigrants --btw, and for 10 Census points-- those most impacted by cheap labor might be the constituent of which political party?,
bowing to despots,
sucking up to foreign governments,
singing Obama rowed the Nuke-free world ashore --actually the words should be ran the USA aground--,
refusing to make use of energy sources within our borders,
increasing the tax burden on not only current citizens but those of three generations hence,
nationalizing private enterprise,
<sarcasm> at least and thankfully the gub'ment is no longer attempting to justify listening to telephone conversations when one party is a terrorists or known associate! </sarcasm>

I'd better not voice my hopes and wishes.

Posted by: Manchurian Bubba_hun at April 6, 2009 10:14 AM

or media lap dogs...

*turns and kicks housekeeper/yard-worker/cook/proofreader/tax-adviser while threatening to have same shipped back to Peru in a 1954 dodge hauling RPG's,fully automatic weapons and a couple of refurb'ed German 88's*

Posted by: Manchurian Bubba_hun at April 6, 2009 10:23 AM

As someone who has played this game from the inside... the people who do this best (segment the networks to prevent disaster from spreading) are the ISP NETCOMs who monitor the traffic on a minute-by-minute basis and make decisions to protect and fort up their portals and customers - and they coordinate with the gov't centers as well, all in real time.

While there is real value to centralizing (higher level NETCOMs with the right tools can see things that lower level administrators cannot) much of the capability for this already exists in the current structure that has evolved as the network folk have created their multiverse of portals and servers.

I'm not convince that having a higher-level, gov't controlled network control center would improve the realtime response, and, of course, opens the door to all sorts of nefarious possibilities.

Posted by: John of Argghhh! at April 6, 2009 04:25 PM

"The remedy for intolerable exercise of Executive power is written right into the Constitution: impeachment. In the mean time, Congress has no business providing advance cover for a phenomenon which makes us all acutely uncomfortable (the undeniable truth that in times of national emergency, Presidents can and do "stretch" the Constitution a bit)."
Be the money quote... Not to mention having the Fed's grow a Son of NSA-Intertubes Monitoring bureaucracy buried below some little cinder-block building in a cow pasture in Maryland or N. Va. Which leads to
"opens the door to all sorts of nefarious possibilities".
Now if y'all will excuse me, I've got to deliver some more OJT/performance feedback to my housekeeper/yard-worker/cook/proofreader/tax-adviser.

Posted by: Manchurian Bubba_hun at April 7, 2009 01:39 PM

Madam, You may think you have problems with your Government, but at least you have one outfit (the A.C.L.U.) which tasks itself with the protection of the Constitution.

Would you like to live in Britain, where from the start of April, all web pages visited, as well as all e-mails are to be stored as a tool in the fight against terror!

Legislation courtesy of the European Union, gratefully received by the scum floating at the top of the Labour Party!

Posted by: Mike Cunningham at April 10, 2009 08:44 AM

Madam, You may think you have problems with your Government, but at least you have one outfit (the A.C.L.U.) which tasks itself with the protection of the Constitution.

Well, part of it, anyway. Mostly. Kinda.

Even though the court decided 9-0 that the 2A protects an individual right (the 5-4 was on whether DC's laws abridged an individual right), the ACLU still won't defend the 2A.

The ACLU: Defending what we wish the Constitution said.

Posted by: Yu-Ain Gonnano at April 10, 2009 10:33 AM

Tactfully stated YAG.

After reading a bit of Mike's website, and recognizing a kindred spirit across the pond, I didn't have to heart to make Mike aware that the ACLU is very, very selective in their approach to, ahem, defending the U.S. Constitution.

Posted by: Manchurian Bubba-hun at April 10, 2009 11:07 AM

Yeah, I kinda figured that. Which is why I took a soft approach. The ACLU in theory is an admirable institution.

The ACLU in practice? Not so much.

Posted by: Yu-Ain Gonnano at April 10, 2009 12:48 PM

"Yeah, I kinda figured that. Which is why I took a soft approach. The ACLU in theory is an admirable institution.

The ACLU in practice? Not so much."

Well, it does have the word 'Union' (hawwwwk-ptoooie) in it, which goes a looong way towards explaining the difference between theory and practice. All the unions I've seen and know about start out as admirable organizations with truly noble goals. However, once 'Power' has been attained, they always take the same path down the rabbit hole as every other one.

Posted by: DL Sly at April 10, 2009 01:10 PM

I'm reminded of a comment I made to one of my professors who was hung up on the Mathematical theory of Statistics: In theory there is no difference between practice and theory, In practice there is a great deal of difference.

Posted by: Yu-Ain Gonnano at April 10, 2009 02:10 PM

Needless to say, he didn't like me much after that. :-)

I cared. :-|

Posted by: Yu-Ain Gonnano at April 10, 2009 02:11 PM

"Needless to say, he didn't like me much after that. :-)"

Yanno, Yu-ain, I used to get that a lot from my prof's, too. Could be one reason why we both gravitate to this blog, eh?
*Theoretically*, that is.

Posted by: DL Sly at April 10, 2009 04:13 PM

Like that old joke that ends, "Theoretically, we're rich. In practice, we're living with a couple of ..."

Posted by: BillT at April 10, 2009 05:06 PM