My Grandmother's Shotgun
This writer grew up in the old South keeping regular company with a grandmother whose personal hero was Robert E. Lee and whose values made Traveler, Gen. Robert E. Lee’s horse, more acceptable than Ulysses S. Grant.
While references to the ‘old South’ connotate slavery and civil war these days there are still those essentially Southern teachings of “death before dishonor” and loyalty to country that was my grandmother’s legacy to me and something held in common with any transplanted Southerner of any skin color who has crossed this writer’s path.
Lies were anathema, as was not ‘minding ones own business’, cheating, stealing, betraying the public trust and all the other rules that our folks in Washington, D.C. have forgotten or are ignoring.
Nothing less than courtesy and respect to ones neighbors was expected, and for at least a hundred years, Southerners held sacred that ‘your rights end where mine begin’ and the inherent and almost genetic knowledge that a few hundred years before, ‘someone had placed a shotgun behind the door’ in case those basic human rules were disregarded.
That shotgun might never have been touched, but, symbolically, it remained there behind the door in case it was necessary to protect and defend the most basic of human rights: the freedom to live in privacy and peace and to deal with nosy folks according to how nosy they happened to be, and most important, the freedom from fear that comes when these basic human rights are ignored.
In intervening years, that symbolic shotgun has been replaced with the rule of law, our courts, our fine judges, juries of our peers, and public opinion, and the ‘nosy neighbors’ have been replaced with a sitting President who has no regard for the time-honored historical and cherished American rights to freedom and privacy.
My grandmother would not approve of these changes. My grandmother would not approve of locking Americans up without a trial. My grandmother would not approve of her government of elected officials spying on her private communications. My grandmother would be reaching for that shotgun about now—at least, symbolically.
If these so-called laws that Bush and Cheney have invented to serve their nefarious ends are so all-fired benign, then this writer suggests that Bush and Cheney have these laws applied to them when the courts are finished with the impeachment process. Not if—but when.
American history and the teachings of our ancestors demand nothing less.
___________________________________________________________________________________
Police blotter: Judge lets Feds track cell phones
By Declan McCullagh
http://news.com.com/Police+blotter+Judge+lets+Feds+track+cell+phones/2100-1028_3-6006453.html
Story last modified Fri Dec 23 04:00:00 PST 2005
"Police blotter" is a weekly report on the intersection of technology and the law.
What: Invoking the Patriot Act, the Justice Department asked to eavesdrop on the location of a cell phone user without providing evidence that criminal activity was taking place.
When: U.S. Magistrate Judge Gabriel Gorenstein, in the Southern District of New York, ruled on Dec. 20 (click here for PDF).
Outcome: Cell phone tracking permitted.
Summary: Federal police may monitor the locations of Americans by constantly tracking their cell phone signals without providing evidence of criminal activity, a magistrate judge has ruled.
In a surprise ruling that differed from recent decisions by three other judges, Gorenstein said his reading of federal wiretapping law and the Patriot Act permitted police to obtain location-tracking orders without any evidence of wrongdoing.
Gorenstein also said that because the cell phone user's location is only available to police when a call is in progress, and because the location information is only a rough estimate, such tracking is permissible under the Fourth Amendment. That amendment, part of the Bill of Rights, prohibits "unreasonable" searches and monitoring.
The Justice Department has argued that it should be allowed to monitor Americans without having to show "probable cause"--that is, at least some evidence of criminal behavior. Instead, federal prosecutors say, all police need to claim is that the information obtained might in some way be "relevant" to a criminal investigation.
The Federal Defenders of New York filed a brief arguing that Americans should enjoy more privacy when being tracked in real-time through their cell phones. In a related letter (click here for PDF) sent earlier this month that the judge did not appear to consider, the Electronic Frontier Foundation argued that "only" a search warrant based on probable cause of wrongdoing satisfies the Fourth Amendment.
Gorenstein's decision this week was a surprise because other courts have rejected similar requests. That started with a decision, first reported by CNET News.com in a Sept. 2 installment of Police Blotter, from U.S. Magistrate Judge James Orenstein.
Excerpt from the court's opinion: "The only remaining question is whether the issuance of a court order for cell site information...is unconstitutional because it violates the Fourth Amendment's prohibition against unreasonable searches and seizures. (The public defenders' brief) discusses the issue in terms of whether the cell phone is a 'tracking device' and whether a warrant grounded in probable cause is necessary for the installation of such a device. But the data being sought by the government in this district is not what amicus believes it to be.
"The information does not provide a 'virtual map' of the user's location. The information does not pinpoint a user's location within a building. Instead, it only identifies a nearby cell tower and, for some carriers, a 120-degree face of that tower. These towers can be up to 10 or more miles apart in rural areas and may be up to a half-mile or more apart even in urban areas. Moreover, the data is provided only in the event the user happens to make or receive a telephone call. Thus, amicus' s reference to tracking devices and the cases considering this technology is not on point.
"The government does not seek to install the 'tracking device': the individual has chosen to carry a device and to permit transmission of its information to a third party, the carrier. As the Supreme Court has held in the context of telephone numbers captured by a pen register, the provision of information to a third party does not implicate the Fourth Amendment."
Copyright ©1995-2005 CNET Networks, Inc. All rights reserved.
___________________________________________________________________________________
Power We Didn't Grant
By Tom Daschle
Friday, December 23, 2005; A21
In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done."
As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.
On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority.
The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.
All Americans agree that keeping our nation safe from terrorists demands aggressive and innovative tactics. This unity was reflected in the near-unanimous support for the original resolution and the Patriot Act in those harrowing days after Sept. 11. But there are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion.
If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation.
In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day.
That is how a great democracy operates. And that is how this great democracy will defeat terrorism.
The writer, a former Democratic senator from South Dakota, was Senate majority leader in 2001-02. He is now distinguished senior fellow at the Center for American Progress.
© 2005 The Washington Post Company
__________________________________________________________________________________
December 23, 2005
Editorial
Mr. Cheney's Imperial Presidency
George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.
Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency - from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.
It was a chance Mr. Cheney seems to have been dreaming about for decades. Most Americans looked at wrenching events like the Vietnam War, the Watergate scandal and the Iran-contra debacle and worried that the presidency had become too powerful, secretive and dismissive. Mr. Cheney looked at the same events and fretted that the presidency was not powerful enough, and too vulnerable to inspection and calls for accountability.
The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," Mr. Cheney said this week as he tried to stifle the outcry over a domestic spying program that Mr. Bush authorized after the 9/11 attacks.
Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contactors rich. Early in his tenure, Mr. Cheney, who quit as chief executive of Halliburton to run with Mr. Bush in 2000, gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. But the task force was not an exercise in diverse views. Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.
The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.
Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.
There are finally signs that the democratic system is trying to rein in the imperial presidency. Republicans in the Senate and House forced Mr. Bush to back the McCain amendment, and Mr. Cheney's plan to legalize torture by intelligence agents was rebuffed. Congress also agreed to extend the Patriot Act for five weeks rather than doing the administration's bidding and rushing to make it permanent.
On Wednesday, a federal appeals court refused to allow the administration to transfer Jose Padilla, an American citizen who has been held by the military for more than three years on suspicion of plotting terrorist attacks, from military to civilian custody. After winning the same court's approval in September to hold Mr. Padilla as an unlawful combatant, the administration abruptly reversed course in November and charged him with civil crimes unrelated to his arrest. That decision was an obvious attempt to avoid having the Supreme Court review the legality of the detention powers that Mr. Bush gave himself, and the appeals judges refused to go along.
Mr. Bush and Mr. Cheney have insisted that the secret eavesdropping program is legal, but The Washington Post reported yesterday that the court created to supervise this sort of activity is not so sure. It said the presiding judge was arranging a classified briefing for her fellow judges and that several judges on the court wanted to know why the administration believed eavesdropping on American citizens without warrants was legal when the law specifically requires such warrants.
Mr. Bush and Mr. Cheney are tenacious. They still control both houses of Congress and are determined to pack the judiciary with like-minded ideologues. Still, the recent developments are encouraging, especially since the court ruling on Mr. Padilla was written by a staunch conservative considered by President Bush for the Supreme Court.
Copyright 2005The New York Times Company
While references to the ‘old South’ connotate slavery and civil war these days there are still those essentially Southern teachings of “death before dishonor” and loyalty to country that was my grandmother’s legacy to me and something held in common with any transplanted Southerner of any skin color who has crossed this writer’s path.
Lies were anathema, as was not ‘minding ones own business’, cheating, stealing, betraying the public trust and all the other rules that our folks in Washington, D.C. have forgotten or are ignoring.
Nothing less than courtesy and respect to ones neighbors was expected, and for at least a hundred years, Southerners held sacred that ‘your rights end where mine begin’ and the inherent and almost genetic knowledge that a few hundred years before, ‘someone had placed a shotgun behind the door’ in case those basic human rules were disregarded.
That shotgun might never have been touched, but, symbolically, it remained there behind the door in case it was necessary to protect and defend the most basic of human rights: the freedom to live in privacy and peace and to deal with nosy folks according to how nosy they happened to be, and most important, the freedom from fear that comes when these basic human rights are ignored.
In intervening years, that symbolic shotgun has been replaced with the rule of law, our courts, our fine judges, juries of our peers, and public opinion, and the ‘nosy neighbors’ have been replaced with a sitting President who has no regard for the time-honored historical and cherished American rights to freedom and privacy.
My grandmother would not approve of these changes. My grandmother would not approve of locking Americans up without a trial. My grandmother would not approve of her government of elected officials spying on her private communications. My grandmother would be reaching for that shotgun about now—at least, symbolically.
If these so-called laws that Bush and Cheney have invented to serve their nefarious ends are so all-fired benign, then this writer suggests that Bush and Cheney have these laws applied to them when the courts are finished with the impeachment process. Not if—but when.
American history and the teachings of our ancestors demand nothing less.
___________________________________________________________________________________
Police blotter: Judge lets Feds track cell phones
By Declan McCullagh
http://news.com.com/Police+blotter+Judge+lets+Feds+track+cell+phones/2100-1028_3-6006453.html
Story last modified Fri Dec 23 04:00:00 PST 2005
"Police blotter" is a weekly report on the intersection of technology and the law.
What: Invoking the Patriot Act, the Justice Department asked to eavesdrop on the location of a cell phone user without providing evidence that criminal activity was taking place.
When: U.S. Magistrate Judge Gabriel Gorenstein, in the Southern District of New York, ruled on Dec. 20 (click here for PDF).
Outcome: Cell phone tracking permitted.
Summary: Federal police may monitor the locations of Americans by constantly tracking their cell phone signals without providing evidence of criminal activity, a magistrate judge has ruled.
In a surprise ruling that differed from recent decisions by three other judges, Gorenstein said his reading of federal wiretapping law and the Patriot Act permitted police to obtain location-tracking orders without any evidence of wrongdoing.
Gorenstein also said that because the cell phone user's location is only available to police when a call is in progress, and because the location information is only a rough estimate, such tracking is permissible under the Fourth Amendment. That amendment, part of the Bill of Rights, prohibits "unreasonable" searches and monitoring.
The Justice Department has argued that it should be allowed to monitor Americans without having to show "probable cause"--that is, at least some evidence of criminal behavior. Instead, federal prosecutors say, all police need to claim is that the information obtained might in some way be "relevant" to a criminal investigation.
The Federal Defenders of New York filed a brief arguing that Americans should enjoy more privacy when being tracked in real-time through their cell phones. In a related letter (click here for PDF) sent earlier this month that the judge did not appear to consider, the Electronic Frontier Foundation argued that "only" a search warrant based on probable cause of wrongdoing satisfies the Fourth Amendment.
Gorenstein's decision this week was a surprise because other courts have rejected similar requests. That started with a decision, first reported by CNET News.com in a Sept. 2 installment of Police Blotter, from U.S. Magistrate Judge James Orenstein.
Excerpt from the court's opinion: "The only remaining question is whether the issuance of a court order for cell site information...is unconstitutional because it violates the Fourth Amendment's prohibition against unreasonable searches and seizures. (The public defenders' brief) discusses the issue in terms of whether the cell phone is a 'tracking device' and whether a warrant grounded in probable cause is necessary for the installation of such a device. But the data being sought by the government in this district is not what amicus believes it to be.
"The information does not provide a 'virtual map' of the user's location. The information does not pinpoint a user's location within a building. Instead, it only identifies a nearby cell tower and, for some carriers, a 120-degree face of that tower. These towers can be up to 10 or more miles apart in rural areas and may be up to a half-mile or more apart even in urban areas. Moreover, the data is provided only in the event the user happens to make or receive a telephone call. Thus, amicus' s reference to tracking devices and the cases considering this technology is not on point.
"The government does not seek to install the 'tracking device': the individual has chosen to carry a device and to permit transmission of its information to a third party, the carrier. As the Supreme Court has held in the context of telephone numbers captured by a pen register, the provision of information to a third party does not implicate the Fourth Amendment."
Copyright ©1995-2005 CNET Networks, Inc. All rights reserved.
___________________________________________________________________________________
Power We Didn't Grant
By Tom Daschle
Friday, December 23, 2005; A21
In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done."
As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.
On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority.
The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.
All Americans agree that keeping our nation safe from terrorists demands aggressive and innovative tactics. This unity was reflected in the near-unanimous support for the original resolution and the Patriot Act in those harrowing days after Sept. 11. But there are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion.
If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation.
In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day.
That is how a great democracy operates. And that is how this great democracy will defeat terrorism.
The writer, a former Democratic senator from South Dakota, was Senate majority leader in 2001-02. He is now distinguished senior fellow at the Center for American Progress.
© 2005 The Washington Post Company
__________________________________________________________________________________
December 23, 2005
Editorial
Mr. Cheney's Imperial Presidency
George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.
Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency - from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.
It was a chance Mr. Cheney seems to have been dreaming about for decades. Most Americans looked at wrenching events like the Vietnam War, the Watergate scandal and the Iran-contra debacle and worried that the presidency had become too powerful, secretive and dismissive. Mr. Cheney looked at the same events and fretted that the presidency was not powerful enough, and too vulnerable to inspection and calls for accountability.
The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," Mr. Cheney said this week as he tried to stifle the outcry over a domestic spying program that Mr. Bush authorized after the 9/11 attacks.
Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contactors rich. Early in his tenure, Mr. Cheney, who quit as chief executive of Halliburton to run with Mr. Bush in 2000, gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. But the task force was not an exercise in diverse views. Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.
The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.
Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.
There are finally signs that the democratic system is trying to rein in the imperial presidency. Republicans in the Senate and House forced Mr. Bush to back the McCain amendment, and Mr. Cheney's plan to legalize torture by intelligence agents was rebuffed. Congress also agreed to extend the Patriot Act for five weeks rather than doing the administration's bidding and rushing to make it permanent.
On Wednesday, a federal appeals court refused to allow the administration to transfer Jose Padilla, an American citizen who has been held by the military for more than three years on suspicion of plotting terrorist attacks, from military to civilian custody. After winning the same court's approval in September to hold Mr. Padilla as an unlawful combatant, the administration abruptly reversed course in November and charged him with civil crimes unrelated to his arrest. That decision was an obvious attempt to avoid having the Supreme Court review the legality of the detention powers that Mr. Bush gave himself, and the appeals judges refused to go along.
Mr. Bush and Mr. Cheney have insisted that the secret eavesdropping program is legal, but The Washington Post reported yesterday that the court created to supervise this sort of activity is not so sure. It said the presiding judge was arranging a classified briefing for her fellow judges and that several judges on the court wanted to know why the administration believed eavesdropping on American citizens without warrants was legal when the law specifically requires such warrants.
Mr. Bush and Mr. Cheney are tenacious. They still control both houses of Congress and are determined to pack the judiciary with like-minded ideologues. Still, the recent developments are encouraging, especially since the court ruling on Mr. Padilla was written by a staunch conservative considered by President Bush for the Supreme Court.
Copyright 2005The New York Times Company
posted by FancyRage at 8:20 AM
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