A government looking for witches will find them

While the nation’s political class has been fixated on a potential government shutdown in Washington this week, the NSA has continued to spy on all Americans and by its ambiguity and shrewd silence seems to be acknowledging slowly that the scope of its spying is truly breathtaking.

The Obama administration is of the view that the NSA can spy on anyone anywhere. The president believes that federal statutes enable the secret FISA court to authorize the NSA to capture any information it desires about any persons without identifying the persons and without a showing of probable cause of criminal behavior on the part of the persons to be spied upon. This is the same mindset that the British government had with respect to the colonists. It, too, believed that British law permitted a judge in secret in Britain to issue general warrants to be executed in the colonies at the whim of British agents.

General warrants do not state the name of the place to be searched or the person or thing to be seized, and they do not have the necessity of individualized probable cause as their linchpin. They simply authorize the bearer to search wherever he wishes for whatever he wants. General warrants were universally condemned by colonial leaders across the ideological spectrum -- from those as radical as Sam Adams to those as establishment as George Washington, and from those as individualistic as Thomas Jefferson to those as big-government as Alexander Hamilton. We know from the literature of the times that the whole purpose of the Fourth Amendment -- with its requirements of individualized probable cause and specifically identifying the target -- is to prohibit general warrants.

And yet, the FISA court has been issuing general warrants and the NSA executing them since at least 2004.

The Obama administration is of the view that the NSA can spy on anyone anywhere.

Last week we learned in a curious colloquy between members of the Senate Select Intelligence Committee and Gen. Keith Alexander and Deputy Attorney General James Cole that it is more likely than not that the FISA court has permitted the NSA to seize not only telephone, Internet and texting records, but also utility bills, credit card bills, banking records, social media records and digital images of mail, and that there is no upper limit on the number of Americans’ records seized or the nature of those records.

The judges of the FISA court are sworn to secrecy. They can’t even possess the records of what they have done. There is no case or controversy before them. There is no one before them to oppose what the NSA seeks. They don’t listen to challenged testimony.

All of this violates the Constitution because it requires a real case or controversy before the jurisdiction of federal courts may be invoked. So when a FISA court judge issues an opinion declaring that NSA agents may spy to their hearts’ content, such an opinion is meaningless because it did not emanate out of a case or controversy. It is merely self-serving rhetoric, unchallenged and untested by the adversarial process. Think about it: Without an adversary, who will challenge the NSA when it exceeds the “permission” given by the
FISA court or when it spies in defiance of “permission” denied? Who will know?

For this reason, the FISA court is unconstitutional at best and not even a court at worst. It consists of federal judges administratively approving in secret the wishes of the government. By not adjudicating a dispute, which is all that federal judges can do under the Constitution, these judges are not performing a judicial function. Rather, they are performing a clerical or an executive one, neither of which is contemplated by the Constitution.

And yet, the president and his secret agents and the politicians who support them would have you believe that the NSA’s spying has been approved by bona fide federal courts. It has not. Does the Constitution permit the federal government to put us all under a microscope? It does not. The government is supposed to work for us and derive its powers from the consent of the governed. Do you know anyone who consented to all this? I do not.

The traditional bar that the government must meet in order to begin gathering data on any of us is individualized articulable suspicion about criminal behavior. The purpose of that requirement is to prevent witch hunts and inquisitions and knocks on doors in the night. Without that bar, there are no limits as to whom the feds can pursue.

What will become of us if the feds can watch our every move and hear our every conversation and learn our every expenditure and read our every email and find out what we eat and whom we love and how we live? There are well over 4,500 federal crimes. The feds can find something wrong that anyone has done. Stalin’s chief of secret police, the monster Lavrenti Beria, once famously proclaimed: “Show me the man and I will find you the crime.” History teaches that a government on a witch hunt, unconstrained by law or Constitution, will not stop until it can brand someone as a witch. And an unbridled inquisition will not stop until it finds a heretic. The Constitution simply never entrusted the people who run the government with this awesome power. Rather, in the Fourth Amendment, it prohibited it.

If the right to life, liberty and the pursuit of happiness -- which are the stated reasons for forming the United States of America in the first place -- mean anything, they mean that we all possess the inalienable right to be different and the inalienable right to be left alone. Neither of these rights can be honored when the government knows all. And when the government knows all, and doesn’t like what it knows, we will have an authoritarian state far more odious than any history has ever known.

On the face of an all-knowing secret government are large and awful eyes -- and no smile.

US: Taliban Attack Could Have Been Foreseen

U.S. commanders at a base in Afghanistan where two Marines were killed in a surprise insurgent attack last year had no explicit warning but intelligence officers there had "consistent indicators" of Taliban interest in attacking, according to an investigation report released Tuesday.

The U.S. Central Command investigation's conclusions led the top Marine, Gen. James Amos, to announce on Monday that he had forced two senior Marine generals to retire early. Amos held Maj. Gen. Charles Gurganus and Maj. Gen. Gregg Sturdevant responsible for failures to protect their forces.

The Central Command's report indicated that the Marines at Camp Bastion, one of the largest coalition airfields in Afghanistan, could have foreseen the possibility of a Taliban effort to penetrate the base's perimeter on the night of Sept. 14, 2012.

It said the base's intelligence officer reported that the threat to all major installations was "high" at the time of the attack and that there were "consistent indicators that the Taliban wanted to gain access" to Bastion and attack it.

A group of 15 Taliban fighters used wire cutters to cut through a chain link fence on Bastion's perimeter and walked onto the base undetected. They destroyed six Marine fighter jets and wounded 17 people in addition to killing two Marines.

The investigation report said that in the weeks prior to the attack there had been numerous breaches of Bastion's supposedly secure perimeter, some of which had been captured on surveillance videos. One video showed an individual who entered the base through a hole in its perimeter chain-link fence, "looked around inside an empty guard tower and departed again."

It said many people, including Gurganus, who was the commander of all coalition forces in southwestern Afghanistan, had expressed concern about the breaches but "accepted them" as related to theft or other incursions that did not necessarily pose a security danger to the Marines.

The report faulted Gurganus for failing to take sufficient actions to ensure security prior to the attack.

"He underestimated the threat posed by the enemy's capabilities, overestimated U.S. and coalition capabilities to counter that threat and failed to take prudent steps to counter or mitigate an enemy attack," it concluded.

Sturdevant, who commanded the Marine aviation unit in the region, mistakenly assumed that other military units on Bastion would provide adequate protection for his aviation forces, the report said.

"This misjudgment unnecessarily exposed his personnel and equipment to enemy attack," it said.

Sturdevant and Gurganus issued statements Monday saying they respected Amos' decision.

A Marriage Of Bad Policy And Toxic Economics

By Douglas Elliott
I do not want to be writing this column about the likely shutdown of the federal government. The shutdown will create costly inefficiencies, distract our leaders from more important tasks, and reduce our influence in a dangerous world by making us look incompetent and divided. It’s not even good politics for the Republican party that is forcing the issue and will be blamed by most Americans for the result, even if it serves the ideology and the political agenda of a minority within that party.

I want to be writing about the crucial German elections and their impact on the Euro Crisis. There are also fascinating and potentially quite important new reforms in China that establish a free trade zone in Shanghai with much less regulation. It may signal nationwide reforms transforming the size and shape of the Chinese economy and affecting all of us. I am sure my foreign policy colleagues would rather be writing about the potential for a deal with Iran and other issues of life and death. The list of real issues goes on and on.

Instead, we have to take a few days or weeks to endure a shutdown that is likely to last only until the damage is great enough that the leaders of the Republican party who are in touch with reality have the evidence of political damage to allow them to push through a sane deal.

This is not a good use of national resources or legislative time. It is not the right way to reach the hard compromises that will need to be made to put us on the right track for the long term. Neither party has a monopoly on virtue or common sense; in fact these sometimes seem singularly lacking in politicians on both sides. But, forcing a shutdown over the health care bill is the wrong way to resolve that policy dispute.

There are only two pieces of good news here. First, Republicans are unlikely to be stupid enough to try this again anytime soon, unless the polls are very mistaken about the public’s reactions. Maybe we just have to get this out of our collective system every decade or two. Second, having this fight now may allow the debt ceiling debate to be handled more sanely after the inevitable public backlash against the shutdown.

I would be much more worried about the long-term consequences of defaulting on our public obligations than I am about the short-term distraction of a government shutdown. This does not justify the shutdown, but is more like choosing between a hernia and a heart attack.

Our nation is better than this. I only hope that our politicians will eventually find a way to overcome the toxic political environment. Of course, we as voters must share a lot of the blame. We keep electing leaders who support or accept polarization rather than moderation and compromise.

It has been said that America always does the right thing … after trying everything else. I hope that we finish our destructive search soon and move on to building a better country.