Saturday, January 07, 2006

Bush's Battle Endangers The War

By Jonathan Rauch,
National Journal© National Journal Group Inc.
Friday, Jan. 6, 2006

On September 18, 2001, when Congress passed a joint resolution authorizing President Bush 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," it thought it was approving a military attack on Al Qaeda and the Taliban. It should have known better.
Bullshit where does the author come up with that. Read the resolutions. The reason they are so open ended is because terrorists have no allegiance to a specific country. Also the WAR is a war on TERROR not just Al Qaeda. Mr. Rauch is doing something the left loves - "revisionist history". As a matter of fact, knowing the facts is something that the left abhore. Here are the opening words of the resolution:
One Hundred Seventh Congress
of the
United States of America
Begun and held at the City of Washington on Wednesday,
the third day of January, two thousand and one
Joint Resolution
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad;

Notice how the last words are "at home and abroad"

Warrantless domestic surveillance seems fine for four days, four weeks, or even four months. But for four years, with no end in sight?
Has the THREAT ended?
Congress should have understood that presidents, given war-making authority, take it and run. According to Bush, what Congress was in fact giving him was the power to pursue the enemy on the battlefield as he sees fit. And it was giving him the power to decide, unilaterally, who the enemy is. And to define the battlefield -- again, unilaterally.
As Commander in Chief I believe that is his job. Does Mr. Rauch have a list of anyone labeled an enemy who has proven not to be? The battlefield was defined by Congress "at home and abroad"
Define it he did. In a July hearing before the U.S. Court of Appeals for the 4th Circuit, a federal judge asked if the administration was "prepared to boldly say the United States is a battlefield in the war on terror." Replied Paul D. Clement, the solicitor general: "I can say that, and I can say it boldly."
In other words, says Tim Lynch, the director of the libertarian Cato Institute's project on criminal justice, "From Anchorage to Dallas to Honolulu, it doesn't matter -- it's all a battlefield." Well no shit dipstick that's the battlefield because that's where the people that they want to kill live. You know us Americans... I guess the enemy is going to try and just kill Americans in Austria or maybe South Africa.
And so Bush has claimed power, as commander-in-chief, to redefine limits on the detention and interrogation of prisoners. He claims the power to seize U.S. citizens on U.S. soil and to hold them without formal charge in a military brig for as long as he wants, without meaningful access to courts or lawyers. And now it emerges that he also claims the power to eavesdrop without warrants on Americans in the United States, in seeming violation of the 1978 Foreign Intelligence Surveillance Act, known as FISA.
Once again this brilliant commentator has not read the FISA act or all the court cases that go with it. It clearly states that it does NOT infringe on this very ability of the President.
In peacetime, these breathtaking claims to unilateral executive authority would be shocking. But America is at war. By the standards of wartime presidents -- with an important exception, about which more later -- Bush is a pussycat.
Yet Mr. Rauch decries him like he's Stalin.
During the Civil War, President Lincoln suspended the right of habeas corpus, a prerogative that the Constitution grants to Congress alone. When a federal court declared his order unconstitutional, Lincoln ignored the ruling. His administration locked up 10,000 to 15,000 people, including some whose only offense was to denounce the war. Hardly apologetic, Lincoln predicted that history would blame him for making too few arrests, not too many.
In World War II, President Roosevelt detained thousands of loyal Japanese-Americans, many of whom lost their homand livelyhoods. Less widely known is that, when the government captured a band of German infiltrators in the United States, FDR declared he would execute them no matter what any court said.
They did hang a whole bunch of Germans that snuck into Florida
During the Korean War, President Truman tried to use his authority as commander-in-chief to seize and nationalize the American steel industry. (He backed down when the Supreme Court rebuffed him.) Throughout the Cold War, under Democratic and Republican administrations alike, government spying on Americans was endemic.
By comparison, Bush has been as restrained in the exercise of his claims to wartime authority as those same claims have been expansive. He says he can lock up anyone he pleases for as long as he pleases, and no court or lawyer can say boo about it. But in practice, he has detained only two U.S. citizens, one of them captured on a foreign battlefield. He has not threatened to defy the courts. As for the National Security Agency's domestic surveillance, no one seems to be suggesting that it was used against war dissenters or political enemies.
BULLSHIT that is exactly the inclination the left would have us all believe read the news and listen to Pelosi, Kennedy and Reids speeches.
Civil law may have been violated, but not, from appearances so far, civil liberties.
All true and to Bush's credit. Yet there is an important difference between Bush's behavior and that of Lincoln, FDR, and Truman: time.
The Civil War, World War II, and, to a lesser extent, the Korean War were intense, acute conflicts. Lincoln, Roosevelt, and Truman believed they were taking emergency measures during a conflict that they expected to be short. When it became clear that the Civil War would drag on, Lincoln went to Congress for the 1863 Habeas Corpus Act, formally legalizing his detention policy. Lincoln understood that he could not run a long war on a fly-by-night basis.
Bush, in contrast, seems determined to treat the war on terror as a permanent emergency. The administration says the 2001 use-of-force resolution allowed the government to collect battlefield intelligence here at home, superseding FISA. Invoked immediately after an enemy attack, that argument makes legal and strategic sense. Warrantless domestic surveillance and legal improvisation seem fine for four days, four weeks, or even four months.
But four years -- with no end in sight? Bush seems to have had no intention of regularizing his surveillance program by building a legal framework for it. Instead, his plan apparently was to run a secret domestic spying program outside the boundaries of conventional law for, well, how long? Decades? Forever?
#1 The eavesdropping on TERRORISTS calling each other inside and outside the country is NOT outside the law. #2 Tell us oh great sage Mr. Rauch on what day will the TERRORISTS stop trying to kill us? How long from now? A week, a month a year, etc etc. #3 I love this part build a legal framework, besides that it is already legal, lets look at what you're asking. The President should go before this pack of spineless traitors that are in the congress now and say to them, come up with additional laws to spy on terrorists that are in this country RIGHT NOW trying to plot our deaths. Cut me a break. This group can't even renew the Patriot Act after it has been softened to address some of those very civil liberty worries that he states.
The legal implications of Bush's program will take months to parse, but the strategic implications are no less worrisome. Like the Cold War, the war on terror is a long war of attrition. Tim Naftali, an intelligence historian and the director of the presidential recordings program at the University of Virginia's Miller Center of Public Affairs, notes that people get tired of wars and that skullduggery provokes public backlash. In the Cold War, secret domestic spying went on for years, only to eventually blow up in the face of the intelligence community.
Do you think the people will accept the excuse of "well you were tired of letting us track the terrorists" when the next Terror attack takes place? or will you and your ilk be the first to scream that not enough was done.
"The administration is just saying, 'Trust us,' and you can't go on doing that for 20 years," Naftali says. "At some point, you've got to regularize this, because you can't lose your soul fighting terrorism. And terrorism is a chronic problem."
A chronic problem that a whole party in congress refuses to even acknowledge exists.
In a war of nerves, an unsustainable strategy is a losing strategy. But Bush appears to view Congress and the courts not as potential partners in the war effort, but as obstacles and adversaries; (which is how half of them are acting) not as a source of legitimacy and sustainability, but as busybodies and pests. "It's almost," Naftali says, "as if this is a war to win a conflict over executive power."
And so, with a fierce consistency, the administration has battled to keep Congress and the courts out of the war on terror.
Which is how it should be. So far the courts have tried to give Miranda Rights to enemy combatants on the battlefield. The last war that Congress ran was Vietnam they did such a great job with that one, and so far they have already tried to give American civil liberties to our enemies.
It has sought no new legal framework for the detention of suspected terrorists and unlawful enemy combatants, even though a new framework is sorely needed. It resisted legislation to draw clearer lines between legal and illegal interrogation practices. In the past several weeks, it has played what appears to be a legal shell game intended to forestall Supreme Court review of its handling of Jose Padilla, a U.S. citizen who was clapped incommunicado into a military brig.
And even now, with the secret out, the administration has offered no hints that it will try to regularize its domestic surveillance program. The program, Bush asserts, is vital and it saves American lives. If so, one might think Congress would be pretty likely to approve it. (What sort of Drugs are you on Mr. Rauch? What in this Congresses track record would lead you to believe that?) At some point, even an observer who sympathizes with Bush's goal begins to wonder if he remembers just what the goal is: fighting terrorism, not avoiding oversight. One begins to wonder, indeed, if his administration has lost sight of the distinction, especially when Vice President Cheney defends warrantless surveillance by saying, "Either we're serious about fighting the war on terror, or we're not."
The Truth Hurts half you people can't even see a threat from TERRORISM
For a casebook demonstration of a better approach, Bush and Cheney need look no farther than their own USA PATRIOT Act, currently up for renewal. By asking Congress in 2001 for a new law, instead of claiming authority to do as he pleased, Bush opened a messy debate that shows no signs of ending. But the result is a law that works well (as Bush attests), that stands on legal terra firma, and that commands undoubted public legitimacy. The mystery is why Bush subsequently turned his back on an approach that succeeded.
Excuse me didn't Harry Reid just make a Press Announcement that "We just Killed the Patriot Act"?
The notable exception among wartime presidents was James Madison. Though the War of 1812 was a dire crisis (New York was invaded, New Orleans was attacked, Detroit fell, the White House itself was burned), Madison undertook no extra-legal maneuvers. Toward the end of his long life, he reflected that the American Framers were distinguished not by their understanding of rights but by their appreciation of institutions. "The rights of man as the foundations of just government had been long understood," he said, "but the superstructures projected had been sadly defective." Structure, Madison understood, was the key to sustainability.
Bush keeps a bust of Winston Churchill in his office. But after four years, World War II was ending and Churchill was soon to be thrown out of office. The war on terrorism is still just beginning, and Bush has three years left. If only someone would give him a bust of Madison. The war of 1812 ended in a stalemate Mr. Rauch. Is that what you want the President to be inspired to achieving?
-- Jonathan Rauch is a senior writer for National Journal magazine, where "Social Studies" appears. His e-mail address is

When you read articles such as this it is very upsetting. So many of the academic intelligentsia live in a fantasy world. At a time when judges on the most secret court in the country are leaking to the NY Times and the Democrats feel that the best way to regain seats is to place American lives in danger this is the quality analysis we get. What a sad joke these people are. If they were at least honest in their criticism and applied it to both sides they would not inspire scoffs and ridicule. Since however objectivity has long been lost let them stick their heads in the sand and when they pop them up we'll chew them off.

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