Are there 400,000 terrorists plotting the destruction of America?

Call me skeptical, but the Washington Post reports that’s how many people are on the FBI’s terrorist watch list.

During a 12-month period ended in March this year, for example, the U.S. intelligence community suggested on a daily basis that 1,600 people qualified for the list because they presented a “reasonable suspicion,” according to data provided to the Senate Judiciary Committee by the FBI in September and made public last week.

The ever-churning list is said to contain more than 400,000 unique names and over 1 million entries. The committee was told that over that same period, officials asked each day that 600 names be removed and 4,800 records be modified. Fewer than 5 percent of the people on the list are U.S. citizens or legal permanent residents. Nine percent of those on the terrorism list, the FBI said, are also on the government’s “no fly” list.

One wants the government to be vigilant about protecting the country from terrorists, of course, but there’s a danger opposite to that of not investigating enough people and that’s investigating too many people. Leave aside, for the moment, the dangers to civil liberties; I’m willing to be a substantial portion — maybe even most — of the names on that list have nothing at all to do with terrorism. But they’re still consuming some of the FBI’s investigative resources. And time spent investigating the innocents might well cause the FBI to overlook the next Mohammed Atta.

In any case, it’s possible that the FBI will do everything as well as can be done — and that a terrorist will still slip through anyway. But the job might be easier if investigators weren’t flooded with so many (probably) false ledes.

Goodbye, civil liberties: The FBI can investigate you for terrorism just because it feels like it

Charlie Savage uncovers the FBI guidelines for beginning terrorism investigations. (Read the document here.) Word to the wise: Never give an FBI agent a funny look.

The manual authorizes agents to open an “assessment” to “proactively” seek information about whether people or organizations are involved in national security threats.

Agents may begin such assessments against a target without a particular factual justification. The basis for such an inquiry “cannot be arbitrary or groundless speculation,” the manual says, but the standard is “difficult to define.”

Assessments permit agents to use potentially intrusive techniques, like sending confidential informants to infiltrate organizations and following and photographing targets in public.

If you cannot define the standard, you cannot violate the standard. Basically, this is a blank check to the FBI to investigate whomever it pleases for any reason — or no reason — at all. But the FBI denies that will happen:

But Valerie Caproni, the F.B.I.’s general counsel, said the bureau has adequate safeguards to protect civil liberties as it looks for people who could pose a threat.

“Those who say the F.B.I. should not collect information on a person or group unless there is a specific reason to suspect that the target is up to no good seriously miss the mark,” Ms. Caproni said. “The F.B.I. has been told that we need to determine who poses a threat to the national security — not simply to investigate persons who have come onto our radar screen.”

I take seriously the need to prevent terror attacks. But: The FBI ought to have specific reasons to start delving into the lives of its citizens. Terrorism prevention by hunch will absolutely have bad results.

She also said that the F.B.I. takes seriously its duty to protect freedom while preventing terrorist attacks. “I don’t like to think of us as a spy agency because that makes me really nervous,” she said. “We don’t want to live in an environment where people in the United States think the government is spying on them. That’s an oppressive environment to live in and we don’t want to live that way.”

Indeed.

Is the government looking at your e-mail?

Possibly:

The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said.

Representative Rush Holt, Democrat of New Jersey and chairman of the House Select Intelligence Oversight Panel, has been investigating the incidents and said he had become increasingly troubled by the agency’s handling of domestic communications.

In an interview, Mr. Holt disputed assertions by Justice Department and national security officials that the overcollection was inadvertent.

“Some actions are so flagrant that they can’t be accidental,” Mr. Holt said.

If there’s a surprise, it’s that anybody’s surprised. Give government the tools and permissions to peak through your mail and government will always use it — and it will always “accidentally” go over the line. You can bet on it.

Arlen Specter must be giving up on winning the GOP primary

That’s one huge takeaway from this essay he wrote for the lefty New York Review of Books. In it, Specter says he plans to introduce several bills he says will curb executive power in the wake of Bush Era overreach.

First, I intend to introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion on whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues—including the statutes forbidding flag burning and requiring Congress to abide by federal employment laws—and I will follow those.

Second, I will reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration’s warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008, this issue may yet be successfully revisited since the courts have not yet ruled on the legality of the immunity provision. My legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded.

Further, I will reintroduce my legislation from 2006 and 2007 (the “Presidential Signing Statements Act”) to prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress. These statements, sometimes issued when the president signs a bill into law, have too often been used to undermine congressional intent. Earlier versions of my legislation went nowhere because of the obvious impossibility of obtaining two-thirds majorities in each house to override an expected veto by President Bush. Nevertheless, in the new Congress, my legislation has a better chance of mustering a majority vote and being signed into law by President Obama.

That’s right. Specter — a Republican who faces a primary challenge next year — is introducing legislation to keep alive lawsuits that most Republicans want to see go away. These are good things to do, but they’re not necessarily the best way to keep his party’s nomination. Unless something amazing happens, it’s starting to look as though Specter will end up running as an independent next year.

Oh, and on the substance: These measures look good.

Why I might vote for Ralph Nader in 2012

What weird traffic this blog gets. Looking at the blog’s “dashboard” of statistics, I see that one of the top searches bringing people to me right now is “Obama hates America” — the result, I suppose, of my frequent use of headlines that tend to cariacature conservative positions. Also, the result of my writing about Rick Santorum.

Still, I’m guessing that people using that search term aren’t exactly looking for what I’m writing.

Another weird item: A blog post I wrote last fall during the presidential campaign — explaining that, yes, I was voting for Barack Obama, but giving reasons not to put too much hope in him — is still one of my top traffic-getters. The post? “Why Barack Obama may not be all that.”

As we near the 100-day mark of the Barack Obama presidency, it’s worth revisiting that post, because I was sadly correct about one reason to be suspicious:

• Presidential power doesn’t contract itself. The last eight years have seen the Bush Administration repeatedly assert its authority to act as it pleases, without limits from Congress and the courts. The courts have been more effective than Congress in pushing back, but the presidency holds more unilateral power in governmental decision-making than it did when Bill Clinton left office.

And here’s something fundamental about human nature: Presidents don’t tend to give power away. Somebody has to take it away. Congress did a lot of this in the post-Vietnam era, and a lot of those safeguards stood (though they eroded a bit) until the current presidency. Barack Obama has promised to live by the older, less dictatorial limits, but he would be an extraordinary president if he didn’t claim some of the authority the Bush Administration has grabbed for itself. Seems unlikely to me.

It seems unlikelier than ever, now.

Obama opened his administration with actions designed to dazzle people — like me — who felt the previous administration had overreached. He signed orders to close Gitmo within a year and to end the CIA’s use of A) torture and B) secret prisons. I was thrilled. Sure, some Republicans were arguing that there was less there than met the eye, but I was convinced they were speaking more out of sour grapes than anything else. Now I have to concede they might’ve been right.

Why? Here are a few examples from recent weeks:

• First, there’s warrantless wiretapping. Politico:

Earlier this month, the (Justice) department presented an expansive series of arguments urging a federal court in San Francisco to throw out a lawsuit over warrantless surveillance first filed against Bush. The department’s brief not only asserted the state secrets privilege, which has long infuriated civil libertarians, but also made a sweeping assertion that Americans have no rights to challenge surveillance that violates the law unless the information is improperly released.

Let me repeat myself about the state secrets privilege: It’s a way that presidents can shield themselves and their administrations from court scrutiny of wrongdoing by asserting that publicly releasing the information would damage national security. There is, currently, no process in place for a court to verify that assertion. The state secrets privilege, then, forces the courts — and the American people — to trust the government is acting in good faith to shield itself from sunlight in matters where it has been accused of wrongdoing. That defies everything we know about human nature. I’ve said this before: “No president — not in a democratic nation, at least — should be able to declare his actions utterly beyond scrutiny. Ever.”

Still, the state secrets assertions were no worse than what had been done by the Bush Administration. Now, however, the Obama Administration is going one better, also offering up a “sovereign immunity” claim — essentially, you can’t sue the government for illegally eavesdropping on you unless the government has admitted to eavesdropping on you.

Conservatives like to grumble about “activist judges,” but the truth is that the court system remains — along with the voting booth — one of the venues which common people can use to call their government to account. The Obama Administration is trying to take that away. And that should trouble anybody who believes the American government should be accountable to the people.

• Second, there’s the not-small matter of prisoners of war. Again, Politico:

Then, on Friday, the department issued similarly broad arguments against a court ruling giving legal rights to some detainees held by the U.S. military at Bagram Air Base in Afghanistan. The government motion said the decision could aid “enemies of the United States” by allowing them to use “the U.S. court system as a tactical weapon.” The filing led to a New York Times editorial Monday sharply criticizing Obama for positioning Bagram as “the next Guantanamo.”

The Gitmo comparison is correct. Why? Because Guantanamo was created to live outside the bounds of both domestic and international law — freeing the Bush Administration, it believed, to treat the detainees however it chose. Obama’s order to close Gitmo seemed to signal and end to such lawlessness. Instead, it just moves the lawlessness elsewhere.

Understand: The U.S. is free to hold prisoners of war at Bagram without giving them habeas corpus rights. The problem in this particular case is that several prisoners — non-Afghanis — were captured outside Afghanistan and brought to Bagram. The Obama Administration is asserting these prisoners don’t have the right to challenge their detentions either. It is saying, then, that it can arrest people anywhere in the world — not merely a battlefield — and hold them without any kind of due process rights.

Ugh.

Taken as a whole, it would seem that the Obama Administration is only a little better — at best — than its predecessor at adhering to the usual norms of government accountability and due process that characterize a democratic government under the rule of law. And let’s be frank here: A little better isn’t good enough. As it stands, it now looks very much as though the Obama Administration made political and cosmetic decisions about the future of Gitmo without throwing away the wrongheaded ideas that were the foundations of its creation. It was a classic case of misdirection.

George W. Bush took the presidency in 2000 in part because many liberals looked at Democrats and Republicans and decided — much like the end of Animal Farm — that they couldn’t tell the difference between the two. Back then, the similarities were on economics issues; today, it may be the case that the two parties are simply too similar on civil liberties issues.

Since 2000, many liberals repented that they cast votes for Ralph Nader and (perhaps) accidentally gave the presidency to Bush. The lesser of two evils they (and I) came to believe might be evil, but it is still less evil. Right?

Perhaps.

But it seems that partisans on both sides of America’s political divide ought to uphold minimal standards of not-evil-at-all. Perhaps Democrats look at the deep unpopularity of the Republican Party and figure they can get away with betraying their base on these matters. They shouldn’t be so cavalier. Ralph Nader could always make a comeback.

John Yoo: Once again besmirching the pages of the Inquirer

Yes, I’m a little grumpy that the Philadelphia Inquirer keeps giving op-ed space to John Yoo. It’s not that I’m opposed to conservatives having a voice in prominent Philadelphia media. It’s that in most cases, a lawyer who thinks the president should have the power to crush a child’s testicles — provided, you know, the president means well — generally gets moved to the margins of polite discourse instead of claiming a prominent platform smack dab in the spotlight. Bryan Tierney has other ideas. I’m not the only one who gets cranky about this. Our friends at City Paper aren’t happy either. Neither are Young Philly Democrats. Nor is Brendan Skwire.

But John Yoo, like any other citizen, has the right of free speech. Guess he’s lucky President Bush apparently didn’t act on Yoo’s theories about junking the First Amendment. So let’s consider what Yoo has to say.

I’m tired and I’ve got a cranky baby, so I’m going to dispense with a carefully thought-out fisking of Yoo’s op-ed today, in which he defends newly released memoranda in which Yoo, working in the Office of Legal Counsel, at various points asserted President Bush’s wartime authority to dispense with the First and Fourth amendments to the Constitution.* (The memos were rescinded just before the election; the Bush Administration apparently didn’t want Barack Obama to have the same powers it had reserved it itself.) We’ll skip instead to Yoo’s final paragraph, where he poses the key question:

The question is not whether some imaginary perfect world of civil liberties has been destroyed, because we do not live in that world. What we should ask of the Bush administration and its successor is whether they struck the right balance between security policies and civil liberties.

That’s an easy question to answer, at least where the Bush Administration is concerned: No.

Why do I say that? Well, because the foundation of civil liberties is the limitation of government power. And John Yoo’s secret memoranda — as well as other memos of his that have been disclosed throughout the years — seem to recognize no limits on the president’s wartime power. I’ll let Glenn Greenwald sum up Yoo’s outlook, as revealed in the new memos:

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments.  It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.  And it wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls “domestic military operations” was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying — in secret and with no oversight — on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

Right. Yoo asks us to consider whether the Bush Administration “struck the right balance” with regard to civil liberties. But there’s no evidence that any balance-striking was attempted. Instead, what you see time and again Yoo’s memoranda are assertions that a wartime president is empowered to do pretty much anything he wants, that there are no limitations.

Have we detained thousands of U.S. citizens, like we did in World War II? No. Are the Alien and Sedition Acts enforced against disloyal Americans? No. But we have tortured. We have ignored the privacy rights of Americans. And we — the Bush Administration, acting on behalf of the American people — have tried to deny American citizens their due process rights. The list goes on. Yoo — whose legal advice made those violations possible — wants you to believe that because the awful actions of other wars have been absent since 9/11, everything’s OK. It isn’t.

* Conservatives like to mock expansive readings of the Constitution, but where does the Constitution empower the president to disregard it? Somewhere in the penumbras and emanations, perhaps?

Not even lip service

USA Today:

The departments of Defense, State, and Health and Human Services have not met legal requirements meant to protect Americans’ civil liberties, and a board that’s supposed to enforce the mandates has been dormant since 2007, according to federal records.

All three departments have failed to comply with a 2007 law directing them to appoint civil liberties protection officers and report regularly to Congress on the safeguards they use to make sure their programs don’t undermine the public’s rights and privacy, a USA TODAY review of congressional filings shows.

Government missteps such as putting innocent people on terrorist watch lists and misusing administrative warrants, known as national security letters, “might have been dealt with much sooner if we had … cops on the beat to make sure there are standards that are being upheld,” says Caroline Fredrickson, legislative director at the American Civil Liberties Union (ACLU).

Not to put too fine a point on it, but here’s what this tells us: The Bush Administration couldn’t be bothered to even make a lip-service effort on behalf of civil liberties. It simply wasn’t a priority for them. The country is well-rid of that awful, awful presidency.

Socialism

My conservative friend Ben (everybody’s got to have one, right?) quotes approvingly today from this Wall Street Journal editorial:

Mr. Obama is also proposing more “stimulus,” by which he means more federal spending. He wants $25 billion in federal aid to states, which would merely subsidize the most profligate state politicians. He wants $25 billion more for a “jobs and growth fund” for schools, roads and other union-driven public works. And he wants $25 billion more in loan guarantees for the Detroit automakers, on top of the $25 billion they’ve already received.

These ideas reveal that Mr. Obama thinks economic growth derives mainly from growing the government.

Or, as one commenter on Ben’s post put it: “I, for one, welcome our new socialist overlords. I’d like to remind them that as a trusted blogger, I could be helpful in rounding up others to toil in their underground community organizations.”

Which is silly.

But after eight years of a Republican administration that’s been pretty cavalier about civil liberties and Constitutional balance-of-power issues, I’m slightly amazed that folks on the right are panicked at the thought of, well, helping poor people. Especially when that panic is couched in terms of “socialism,” as an assault on the personal liberties of Americans.

Don’t get me wrong: I understand the conservative argument that economic liberty is essential to liberty. But when it comes to, say, Gitmo, then we hear things about “the Constitution is not a suicide pact” and arguments about security tend to steamroll arguments about civil liberties. It appears sometimes as though the only liberty that (some) conservatives really care about is the liberty to make and spend money as they please.

Civil Liberties watch

The Senate Intelligence Committee will investigate reports that military eavesdroppers listened to private phone calls by Americans:

Ms. Kinne and Mr. Faulk, both Arabic linguists, were based at Fort Gordon, Ga., where the N.S.A. has a large listening post focused on the Middle East. Ms. Kinne was there from 2001 to 2003 and Mr. Faulk was there from 2003 to 2007, Mr. Bamford said.

Mr. Faulk told ABC that he and his colleagues listened to “personal phone calls of American officers, mostly in the Green Zone, calling home to the United States, talking to their spouses, sometimes their girlfriends.”

He said the eavesdroppers would swap recordings of intimate calls for entertainment. “At times I was told: ‘Hey, check this out. There’s some good phone sex,’ ” he said.

The National Security Agency, of course, denies wrongdoing:

Mark Mansfield, a spokesman for Gen. Michael V. Hayden, who was director of the N.S.A. from 1999 to 2005 and is now director of the Central Intelligence Agency, said he had never approved illegal eavesdropping. “The notion that General Hayden sanctioned or tolerated illegalities of any sort is ridiculous on its face,” Mr. Mansfield said.

Maybe. But it doesn’t really matter. Once the government decides to start doing widespread wiretapping, this kind of thing is really inevitable: You throw the tuna net wide enough, you’re going to catch a dolphin every now and again — and nobody in charge is going to mean to exactly, but you’ll still have a dead dolphin on your hands.