Dispatches from the Creation Wars

Both AmericaBlog and TPMCafe have posts up about how the Republicans in 1995 and 1996 refused to give Clinton the power for both roving and warrantless wiretaps in an anti-terrorism bill. And they’re right. Clinton wanted both kinds of wiretaps as part of a larger anti-terrorism package and the Republicans amended those provisions out of the bill, claiming that it was a threat to our freedom. Especially telling is this quote from Porter Goss, later named by Bush to head the CIA:

Mr. Speaker, this effort comes in the wake of three horrible tragedies: The bombing of a military installation in Saudi Arabia, the loss of TWA flight 800 out of New York’s JFK Airport, and the recent pipe bomb explosion in Atlanta at the Olympics. While we haven’t had time to thoroughly assess these tragedies and the effectiveness of the antiterrorism law Congress passed earlier this year, these attacks tell us that our society remains vulnerable to terrorism. Unfortunately, terrorism is a fact of life. In response to recent events, a series of proposals were offered to solve the problem–some with merit, and some that could cause more problems than they might solve by cutting deeply–and unnecessarily–into the constitutional freedoms of American citizens. I include in that category certain proposals for expanded wiretapping authority for Federal law enforcement. This is a dangerous proposition–and one that would be ceding victory to terrorists, whose goal is to disrupt our society, create anxiety and constrain our freedoms. That’s the way terrorism attacks a free open society. Let me be clear, this bill does not–I repeat, does not–expand wiretapping authority. In fact, it goes the other direction, strengthening penalties for misuse of Government’s existing authority. That’s good news for all Americans–especially the many southwest Floridians who urged us not to succumb to the pressure to diminish our liberties.

My oh my, how that tune changed, eh? There are similar quotes from many Republicans, and if you look at the debate over those provisions in the Congress you’ll find that the two parties pretty much took the opposite position from the one they’re taking now. But here’s what I don’t get. Why aren’t those blogs also blasting the Democrats for being hypocrites in this regard? 10 years ago, expanded wiretapping authority was a vital and necessary tool in the anti-terrorist arsenal; now, it’s an absolute outrage and a huge threat to our civil liberties and it means the terrorists have won.

The two parties just exchanged scripts, because it’s not about taking a serious, principled position; it’s only about spinning a tale that benefits you politically – and that’s true for both parties, not just the one that happens to be in power now. And who took a consistent position on this question? Libertarians. Libertarians were against such expanded wiretapping authority in 1996 and we’re against it in 2006 as well, and it doesn’t matter which party will be using it. And people wonder why I don’t take the major parties seriously.

Comments

#1 Phillip J. Birmingham
September 5, 2006

Don’t you see, Ed? 1/20/2001, er, 9/11/2001 changed everything.
#2 Steve Reuland
September 5, 2006

Why aren’t those blogs also blasting the Democrats for being hypocrites in this regard? 10 years ago, expanded wiretapping authority was a vital and necessary tool in the anti-terrorist arsenal; now, it’s an absolute outrage and a huge threat to our civil liberties and it means the terrorists have won.

You’ll have to be more specific here. When exactly have the Democrats been opposed to expanded wiretapping per se? The current issue deals with warrantless wiretapping, which is altogether different. And back when the PATRIOT Act was proposed, I think there was maybe one Democrat who voted against it.
#3 Raging Bee
September 5, 2006

I’m with Steve on this: Democrats have, for reasons good or bad, supported the legal expansion of government eavesdropping authority; and are now — contrary to Republican propaganda — only complaining about Bush’s refusal to make use of the legal means created by bipartisam consensus.

The hypocricy is ENTIRELY on the Republican side; and the Republicans compound the hypocricy by opposing Clinton’s response to terrorism, and then saying the Democrats weren’t willing to do anything about it.
#4 Lettuce
September 5, 2006

Let me add my voice to those of Steve and the Raging Bee…

There may come a time for me to complain of Democrats hypocrisy. It sin’t now and it’s not on this issue.

I’m a Democrat, and opposed to even the FISA courts, but that doesn’t make the Democratic position on FISA, which I disagree with, hypocritical.

Just, by my lights, wrong.
#5 Jeff Hebert
September 5, 2006

I think the point Ed is making is that Clinton (a Democrat) was pushing for a law that included warrantless wiretapping provisions, and now Democrats are saying that warrantless wiretapping is wrong.

However, I think the point Ed is missing is that Clinton was pushing for warrantless wiretapping to be LEGAL. What Democrats (and pretty much anyone else concerned with the separation of powers and the integrity of our entire system of government) are pissed about is that Bush has BYPASSED the law that is on the books and engaged in illegal wiretapping just because he thinks the President ought to be able to ignore any law he wants in a time of peril.

The key point is that Democrats want the President to follow the law, whatever the law is. They’re not arguing that warrantless wiretapping is an inherently bad thing (which would be hypocritical, because they once pushed for that very thing), but rather that the President’s willful violation of the law is an inherently bad thing.
#6 Treban
September 5, 2006

And people wonder why I don’t take the major parties seriously.

I still wonder, with their all out assault (a winning assault to be sure) against the principles this country was founded on, why you don’t take them seriously. I mean the republicrats have basicly crippled our democracy – they need to be taken seriously and removed from power.

To the “choir.”
If for no other reason, the dems are entirely culpable for the crimes of this regime because they helped foster the environment that allowed the repubs to take power. I know very little about the clinton anti terror policy that failed to get through congress but I know it was draconian and a disgusting infringment on our civil liberties. Those who would support such measures then are not entirely hippocritical when they bash bush for doing it illegaly, at least they wanted to make it legal first, but to also call it an infringment of our rights to do it at all, is very hippocritical. And if some dems are ok with this kind of invasion of privacy, as long as it’s made legal, they are just as stupid as the repubs and deserve not the liberties they so freely give away.
#7 Ed Brayton
September 5, 2006

No, you guys are missing the point completely. Congress cannot make warrantless wiretapping legal because the 4th amendment forbids it. Nothing short of a constitutional amendment could make warrantless wiretapping legal (and nothing will ever make it just, or justified). The Democrats pushed for it under Clinton and now are calling it an enormous threat to our civil liberties (which, of course, it is). They also pushed for roving wiretaps. The Democrats were wrong then and right now; the Republicans were right then and wrong now. Both are equally hypocritical.
#8 Ed Brayton
September 5, 2006

One more comment: you cannot argue for Congressional authorization of warrantless wiretapping without completely undermining the civil liberties argument against such wiretaps. If you’re going to argue that warrantless wiretaps are a threat to our liberties, as the Democrats are now (correctly) doing and the Republicans are now (incorrectly) denying, then it does not matter whether Congress authorizes such wiretaps or not. If they are a threat to our liberty and unconstitutional, they would still be just as much a threat to our liberty and unconstitutional if Congress went along with them. Surely no one here is going to argue that if Congress right now revised FISA to endorse the NSA program, it would suddenly not be constitutionally dubious, or would suddenly not be a threat to our liberties, would you? That is why my initial argument was absolutely correct, that both parties are being hypocritical about this.
#9 Jeff Hebert
September 5, 2006

Ed Said:

If you’re going to argue that warrantless wiretaps are a threat to our liberties, as the Democrats are now

But that’s not really what the Democrats are arguing. They’re saying that warrantless wiretapping — whether Constitutional or not, whether a good idea or a bad idea, whether it’s something they’d want to try and make into a law or not — is currently, explicitly, ILLEGAL. Bush is making the argument that the President can, at any time he feels the country is in peril, ignore any law he chooses.

THAT is what Democrats are arguing is undermining our civil liberties and our system of government. Warrantless wiretapping has its own set of issues and you can argue about whether Democrats are hypocrites for wanting it, or if it’s even constitutional. But that’s not what the Democrats are talking about when they wave the civil liberties flag. They’re talking about the explicit admission of this administration that the President can ignore any law he wants any time he wants, just because he’s the President.

THAT is the issue at hand.
#10 Steve Reuland
September 5, 2006

I suppose I’ll have to see the specific provisions of the Clinton bill that called for warantless wiretapping. I was under the impression that FISA still held.
#11 Ginger Yellow
September 5, 2006

I’d happily accuse the Dems of hypocrisy if I saw any real sign that they were kicking up a fuss about the current situation. Apart from Feingold there’s been near silence about the fact that the government is claiming the right to disregard laws as it sees fit, and rip up the Bill of Rights in the process. The vast majority of Dems couldn’t run away from the censure motion fast enough.
#12 Lettuce
September 5, 2006

Treban said:

If for no other reason, the dems are entirely culpable for the crimes of this regime because they helped foster the environment that allowed the repubs to take power.

Then the Greens are the most guilty people on the planet and entirely culpable for all the crimes of this regime and the powerless Democrats as well.

But, in fact, the GOP and the Bush Administration are entirely responsible for their actions. As the Clinton Administration is entirely responsible for theirs.

Let me say it differently:

I oppose warrantless wiretapping.

However, the actions of the two administrations are not the same. To support “legal” warrantless wiretapping is not the same as arguing what this Administration does. Nor did, as far as I know, the Clinton Administration ever gin up arguments claiming the courts had no right to review such a thing.

I suspect the Clinton Administratin would have abided by a finding of unconstitutionality on 4th Amendment, or other, grounds.

I’m not so sanguine about the current crew.
#13 Ed Brayton
September 5, 2006

Jeff Hebert wrote:

But that’s not really what the Democrats are arguing. They’re saying that warrantless wiretapping — whether Constitutional or not, whether a good idea or a bad idea, whether it’s something they’d want to try and make into a law or not — is currently, explicitly, ILLEGAL. Bush is making the argument that the President can, at any time he feels the country is in peril, ignore any law he chooses.

I don’t think this is accurate at all, nor do I think it makes any sense from a principled perspective. Warrantless wiretapping is a very bad idea, regardless of whether Congress authorizes it or not. It’s a bad idea because it eliminates the entire concept of checks and balances. Requiring warrants to be signed by a judge and issued on the basis of probable cause is a vital safeguard against the arbitrary imposition of governmental authority to pry into people’s lives and engage in unwarranted searches; that is the entire premise of the 5th amendment. I certainly hope we can agree on that much. Now, it makes no sense at all to argue that if Bush asserts inherent authority to eliminate those safeguards, that is a threat to our liberty, but if Congress tells him he can, that’s not a threat to our liberty.

Look at what the left is arguing (and again, absolutely correctly) in regards to warrantless wiretaps. The ACLU lawsuit did not merely say that warrantless wiretapping violated the President’s statutory authority, it said that such action was unconstitutional. The argument isn’t merely a separation of powers argument, it’s a 5th amendment due process argument. You cannot make that argument while also maintaining that if Congress would just tell him it’s okay, the problem would magically disappear. Warrantless wiretaps are unconstitutional and bad and that has nothing at all to do with whether Congress agrees with it or not.

Let’s try this hypothetical: if Congress had a vote tomorrow on whether to allow the President to use warrantless wiretaps, would the Democrats support him? Most would almost certainly not support him (though 4 years ago, they almost certainly would have, purely for political reasons, just as they rolled over and played dead for the Patriot Act). That alone would disprove your argument that they only object to warrantless wiretapping because they haven’t approved it. No, they’re making the argument, all over the place and loudly, that warrantless wiretapping is, all by itself, a threat to our liberties. And they’re absolutely correct to make that argument. But why weren’t they also making that argument when Clinton wanted it? Because it’s all about politics, not principle. And that’s true of both parties at all times.
#14 Ed Brayton
September 5, 2006

Lettuce wrote:

However, the actions of the two administrations are not the same. To support “legal” warrantless wiretapping is not the same as arguing what this Administration does.

There is no such thing as legal warrantless wiretapping, not unless you change the constitution. If Congress authorized it, it would be just as unconstitutional as it is when the president does it on his own.

Nor did, as far as I know, the Clinton Administration ever gin up arguments claiming the courts had no right to review such a thing.

Because they never got the authority and therefore never had it challenged. This hardly absolves them of hypocrisy.
#15 Treban
September 5, 2006

But, in fact, the GOP and the Bush Administration are entirely responsible for their actions. As the Clinton Administration is entirely responsible for theirs.

Yoo miss my point completely. My point is that voting republicrat caused the current problems our country is facing. If we actually managed to break this deadlock the current concentration of power would be virtually impossible. To be clear, I am just as frightened of the dems getting the power now enjoyed by the repubs. It is impossible to know what could have been but if the clinton regime had the same power the bush regime does, who’s to say they would have been any different. Without the restraints of an opposition congress, what would have kept them from using those warrentless wiretaps without approval? Some moral high ground that only the dems are capable of? Bullshit. By hook or by crook, they would have gotten their wiretaps. As Ed mentions, approved or not it is unconstituional – the constitution aside, it is still wrong.

I suspect the Clinton Administratin would have abided by a finding of unconstitutionality on 4th Amendment, or other, grounds.

Why?

Then the Greens are the most guilty people on the planet and entirely culpable for all the crimes of this regime and the powerless Democrats as well.

Actually, I agree to an extent. I am in favor of dis-allowing political parties all together from public office. I believe a candidate should be required to run on their own merits and their own platform – not that of their party. But I suspect your crying spoiler which is a ridiculous argument against someone who is arguing for breaking the deadlock the republicrats have enjoyed for far too long.
#16 Ted
September 5, 2006

I agree with the hypocrisy of it. It was one of the reasons I found myself on FreeRepublic back then. The Simpsons capture it perfectly when Dole and Clinton are exposed as Kang and Kodos in Citizen Kang.

Abortion for some, miniature American flags for others! Ha! Go ahead and throw away your vote on a third party candidate!

I’ve never looked at the warrantless wiretapping as an aberration — only as an extension of the executive branch power-grab in law enforcement. During the Clin-Ton years we had the Clipper chip, cell phone triangulation (it’s for your own 911 goodness),and the sudden, “…no but really, we changed our mind on PGP — please, go ahead and use it now…we no longer have the reservations we had yesterday…”.

In this sense, congress is like the relationship between trailer trash, the lottery and the wealth tax. For fear of de-nutting the executive branch (and reducing the power of the presidency in foreign affairs), they are not likely to actually reign it it because, given the right scratch-off, they’ll be sitting in the White House.
#17 RickD
September 5, 2006

I’m sorry, Ed, I just don’t see the parallel between the laws that Clinton sought to get through Congress and the illegal behavior that the current President has pursued, flying in the face of FISA and the Constitution.

There is more going on here than mere advocacy of differing legal arguments. What the Bush administration is involved in is an unconstitutional power grab. Furthermore, the Bush administration was trying to do this power grab in secret, and has still refused to go on the public record in exact detail about why exactly they need to violate FISA.

Clinton was trying to get new powers – that is true. (BTW, the pages you link to do not say that Clinton was looking for the power to conduct warrantless wiretapping – if that’s your argument you should find a better source including an explanation of what he was doing.) What Clinton was not doing was simply taking the law into his own hands, trying to keep the evidence of his actions secret, and then questioning the patriotism of anybody who opposed him once the secret program became publicly known. He also didn’t engage in flat denials of his behavior, or try to pretend that the issue was simply surveillance when it was really the question of whether the Executive was going to obey the law or commit felonies.

Once the President has taken the decision to violate FISA, questions about modifying the surveillance law must deal not only with the Constitutional questions, but with the power struggle with the Executive Branch. An Executive who has shown the willingness to violate the law should not be rewarded by Congress with a new law that legalizes his prior illegal actions (and worse, declares his prior illegal actions to now be beyond prosecution).

I know you’re fond of the “pox on both of your houses” attitude towards politics, but I really think the power grabs made by the Bush administration go far beyond anything any Democrat has tried in my lifetime (though, FWIW, I was born in 1968, and LBJ would have been quite comfortable with these tactics). I really don’t think “liberal hypocrisy” is the problem here. Let’s first stop the hemorrhaging of the Constitutional system inherent in the President’s pursuit of illegal powers. And then we can worry about whether Clinton wanted to be just as bad as Bush is, right now.
#18 Jeff Hebert
September 5, 2006

Ed said:

Now, it makes no sense at all to argue that if Bush asserts inherent authority to eliminate those safeguards, that is a threat to our liberty, but if Congress tells him he can, that’s not a threat to our liberty.

I’m saying they’re two separate issues. Ignore the fact that it’s warrantless wiretapping we’re talking about and pick any other law you like, real or imagined. The argument the Bush Administration is making is that they can ignore this law any time they wish.

THAT is the grave threat to our civil liberties the Democrats (or more precisely, people with a spine like Glenn Greenwald) are responding to. Constitutionality of the law in question is irrelevant — the President is making the assertion that he can, any time he wants, ignore any law he wants, for any reason he wants.

Is it not clear that this is a totally separate issue from the specific law in question? That regardless of what Congress does or does not do with regard to this law, or what the Supreme Court may decide about its constitutionality, it is a Very Bad Thing for one branch of the government to act completely outside the law?
#19 Ed Brayton
September 5, 2006

You guys are still missing the point. Warrantless wiretaps are a threat to our liberties, regardless of whether Congress authorizes them or not. If Congress authorized the President to do it, that would only make Congress as wrong as he is.
#20 Russell
September 5, 2006

I’d like to see a run down of who voted for what, before casting claims of hypocrisy so broadly. Clinton pushed a lot of bills that were opposed by Congressmen then who had a more civil libertarian streak. Consider the broad, Democratic opposition to the DMCA. I suspect you’ll find some of the same names opposing these wiretap provisions. Certainly the Senators who have so blatantly flopped on the issue deserve to be tarred.
#21 Jeff Hebert
September 5, 2006

You guys are still missing the point. Warrantless wiretaps are a threat to our liberties, regardless of whether Congress authorizes them or not. If Congress authorized the President to do it, that would only make Congress as wrong as he is.

I think we’re talking past each other. Yes, I agree, warrantless wiretapping is a horrible, unconstitutional idea. Yes, it’s a threat to our liberties no matter what.

There, can we move past that now? You’re getting hung up on the specifics of this particular (bad) law, but it doesn’t matter if we were talking about a very “good” law completely within the framework of the Constitution.

The larger threat to our liberties, again, is that the President is making a conscious argument that he can take any law he wants, regardless of whether it’s a constitutional law or not, and break it. That line of “reasoning” is a nore fundamental threat to our liberties because it can be applied to any law (even ones that ARE constitutional), any time, any where.

Warrantless wiretapping is a specific civil liberties threat — it has boundaries and limitations on what the issue affects. It’s bad, very bad, but it’s limited in the scope of its badness.

The Bush/Yoo/Gonzales formulation of the Unitary Executive being used to defend the conscious breaking of this law, on the other hand, is a broad civil liberties threat — it can apply to any situation, any law, any person, any where, at any time, in any fashion. It’s bad, VERY bad, with a completely unlimited scope of its badness. That’s what is causing the outrage.
#22 Steve Reuland
September 5, 2006

I am very skeptical of the equivalence of Clinton’s proposed “warrantless” wiretapping with those of the Bush adminisgtration, even putting aside the legality issue. According to the Wikipedia entry on the subject:

Executive orders by previous administrations including Clinton’s and Carter’s authorized the attorneys general to exercise authority with respect to both options under FISA. [20] [21] These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton’s executive order, he authorizes his attorney general “[pursuant] to section 302(a)(1)” to conduct physical searches without court order “if the Attorney General makes the certifications required by that section”.

If this information is correct, Clinton operated wholly within the confines of FISA.

And this Media Matters page has more:

When Gorelick testified before the House Intelligence Committee in 1994 that the president had the “inherent authority to conduct warrantless physical searches,” FISA did not apply to physical searches for foreign intelligence purposes, as Media Matters for America has noted. A year later, Congress — with Clinton’s support — amended FISA to require court orders for physical searches. The Clinton administration thereafter never argued that any “inherent authority” pre-empted the new warrant requirements for physical searches under FISA. [...]

The joint CIA/FBI investigation of Ames, a CIA analyst ultimately convicted of espionage, also took place prior to the 1995 FISA amendment requiring warrants for physical searches. Therefore, when the Clinton administration ordered investigators to go “into Aldrich Ames’s house without a warrant,” they did not — as Toensing argued — “carry out their authority” to bypass the FISA requirements, because FISA did not cover such searches.

At the time of the Ames investigation, FISA did require warrants for wiretaps — as it does now — and there is ample evidence that the Clinton administration complied with those requirements.

Again, if this information is to be believed, Clinton never violated FISA. When it came to wiretapping, all such searches were done with warrants as required by law. There was one physical search done without a warrant, but at the time FISA did not require a warrant in that particular instance. The law was later amended, with Clinton’s support, to include such searches under FISA.

Perhaps there is more to it than this, but otherwise I’m not seeing how Bush’s critics on the left are hypocrites for not retroactively condeming Clinton.
#23 Carpus
September 5, 2006

I’m with you on this one Ed. I agree that the point is that both presidents have sought intrinsically illegal powers and the parties have flip-flopped for purely political reasons.

However, at least Clinton tried to go through Congress (though erroneously because they do not have the power to give him the power), whereas Bush didn’t even bother to do that.

So yes, both parties are hypocritical, but I think the level of hypocracy and the attempt to claim power is more serious now on the Republican side than it is/was on the Democratic side.
#24 Jaime A. Headden
September 6, 2006

Some might confuse “democrat” and “Democratic Party” as a basis for policy. Just as not all libertarians are painted with the same stripe, one can be a democratic lover of freedom and hate what Clinton was doing, and also hate what Bush has done. Similarly, there are still Republicans (I am sure, just not on the details) that hate what Bush has done, and hated what Clinton did, as well.

Fortunately, I’m an independant voter.