And Then There Were Three?

by emptywheel

Via DK at TPM, all three big telecoms have told Congress to fuck off they can't confirm or deny whether they've been breaking the law by cooperating with the Administration.

Three telecommunications companies have declined to tell Congress whether they gave U.S. intelligence agencies access to Americans' phone and computer records without court orders, citing White House objections and national security.

Director of National Intelligence Mike McConnell "formally invoked the state secrets privilege to prevent AT&T from either confirming or denying" any details about intelligence programs, AT&T general counsel Wayne Watts wrote in a letter to the House Energy and Commerce Committee.

Qwest and Verizon also declined to answer, saying the federal government has prohibited them from providing information, discussing or referring to any classified intelligence activities.

Used to be--back in the halcyon Nacchio days and shortly thereafter--that only two telecoms would invoke State Secrets: AT&T and Verizon. But here we have Qwest doing so too.

Is that the reason why Qwest isn't shrieking more loudly about the immunity deal its rivals might get for being more reckless with the law than Qwest?

Update: Here's a new line. It's not the program that is confidential. It's the proof that the telecoms had AG authorization to undertake the programs that is confidential.

Both Verizon and AT&T suggested in their letters that they already enjoy legal immunity under existing laws. But AT&T said that when the lawsuits involve allegations of highly classified activity, the company is unable to prove its immunity claims.

You see, the State Secrets cover the imaginary AG authorization letter, not the wiretapping of Americans with no warrant.

Right.

Go read the whole Nakashima article, which has details not included in the AP piece (I'll hunt down the letter, but I'm traveling until Friday...).

Comments

[bmaz]

This is getting absurd. They are just throwing stuff out there now; doesn't even matter if it makes sense, as long as it sounds ominous (State secrets! National Security! Terrorism!) Does State Secrets even apply to Congress per se? I understand that there are certain matters that only are discussed with/disclosed to the Intel Committees or Gang of Eight; but that is different than State Secrets.

[sojourner]

Well, gosh, BMAZ, don't you understand? I can't tell you anything because it is a state secret so you just have to understand!

You are absolutely correct -- I think Big Dick is having a pretty good laugh at declaring everything to be a secret. He probably just wants to frustrate Congress because he can't think of anything better to do. I mean, think about it! Just about everything he has touched has turned to sh*t, and all the secrets he tried to keep have been revealed. Now, Marcy has figured out that the AG granted letters immunizing the telecoms. No matter that the letters probably don't amount to a hill of beans, but...

I guess Dick is just getting bored.

By the way, I just saw a posting about Kay Bailey Hutchison possibly resigning from the Senate as early as 1/09 to run for Governor. I guess it just won't be as much fun to be in the Senate without Dubya running things in Washington. On the other hand, maybe it was because I wrote her a nastygram the other day about getting down on anonymous bloggers! ;-)

[tryggth]

Reread FISA update Summer edition. The shit that was put through was making sure all the telcos have to comply.

[bmaz]

"The company said it does not determine the requests' legality or necessity because to do so would slow efforts to save lives in criminal investigations." WTF? "Criminal investigations"? they got a problem if they are just doing this willy nilly on regular criminal cases.

"Verizon also disclosed that the FBI, using administrative subpoenas, sought information identifying not just a person making a call, but all the people that customer called, as well as the people those people called." Are these administrative subpoenas or NSLs? Jeebus, I don't know exactly what they are referring to, or is going on here, but I don't like the sound of it one bit. It sure sounds like they are using NSLs in all kinds of inappropriate cases. check this sentence out: "From January 2005 to September 2007, Verizon provided data to federal authorities on an emergency basis 720 times, it said in the letter. The records included Internet protocol addresses as well as phone data. In that period, Verizon turned over information a total of 94,000 times to federal authorities armed with a subpoena or court order, the letter said." Holy crap.

"Verizon and AT&T said it was not their role to second-guess the legitimacy of emergency government requests." Like hell its not.

"Both Verizon and AT&T suggested in their letters that they already enjoy legal immunity under existing laws. But AT&T said that when the lawsuits involve allegations of highly classified activity, the company cannot prove its immunity claims." Wow. Jiminy. Well, in the first place, I sure don't think they have any immunity where they have knowingly handed out information without proper documentation, actually any documentation, of any kind, which they appear to admit they have done 720 times. Secondly, Sure looks to me as if both Verizon and AT&T are confirming and agreeing with what I have been saying forever. They don't need no stinkin immunity; they already are protected by the nature of their agreements and relationship they have with the Bush Administration.

Sojourner - Keep pounding KayBee. She sure looks like a nice lady, but, man, when she opens her mouth it is absolutely maddening. She is as bad a Gooper talking point repeater as there is. Cornyn too. I feel sorry for you..... right up until I remember I have McCain and Kyl. Must be the water in the southwest or something....

[Mickey]

In some places, this used to be called obstruction of justice. That was back when the White House and the Laws were on the same side of things. So what is the need for secrecy here? Who doesn't already know about these programs and the telecoms involvement? I guess State Secrets used to be called common knowledge...

[radiofreewill]

EW - That's proof that the Telecom Immunity Issue is in Reality a Retro-active exoneration/ablution of BushCo's Legal Justifications (if any? Does Yoo count?) for warrantless domestic surveillance.

Granting the Telecoms Immunity from Liability for what BushCo did with Telecom Customer Data, while at the same time sweeping Judicial and Legal Review of that Liability under the rug, amounts to nothing less than a quid pro quo.

In this case, Bush is immunizing the Actions of his Agents (bag men, just like Libby) from his own To-All-Outward-Appearances Illegally, or extra-Legally, *AG* Approved, ordered Actions -- and cloaking them with his own State Secrets classification authority.

It's a ruse that can be used to excuse any behavior - legal, illegal or exta-legal - on Bush's Say-So alone. We've become a fucking banana republic!

It would be yet another total abdication of the importance and roles of the Legislative and Judicial Branches to let the horse of 'Telecom Immunity' body-mask BushCo slipping by with a 6-Year Free Pass for spying on whoever they wanted to, and enabling themselves to keep doing it, too, on the vouchsafe of "Three Bags Full" McConnell or the AG.

It's just another way for BushCo to keep doing what they've been doing all along, soon to be codified into law by Our Trout-Mouthed Congress.

[Jodi]

What part of "secret" do you not understand?

[bmaz]

"What part of "secret" do you not understand?"

That part which we desire the most, namely how to keep you secret and your presence undetectable on the otherwise wonderful threads here.

[DeeLoralei in Memphis]

So, Marcy, what you are saying is " the telecoms refuse to tell the Federal Government(legislative) what the other branch of the federal Government(executive) made them do? Talk about effing kabuki! My left foot cannot not let my right foot know the cadence to which we are marching, but it cannot even let my musculo-skeleto-neuro-transmitters from knowing that my body is propelled in a forward motion? That is just sooooooo effed up.

[bmaz]

A little off subject, but yet another indication of what Bush/Cheney hath wrought: How toxic has George Bush made the United States? Worse than Chernobyl. From today's Washington Post we learn that India is backing out tof the sweetheart deal of the century that George Bush inexplicably made with them.

"The main obstacle does not involve the specific terms of the agreement but rather India's internal politics, including fears from leftist parties that India is moving too close to the United States, according to officials and experts familiar with the deal. Besieged over the past two months by growing opposition to nuclear energy cooperation with the United States, Prime Minister Manmohan Singh indicated over the weekend that he would rather save his coalition government than the nuclear pact.

"What we have done with the U.S., it is an honorable deal, it is good for India, and it is good for the world," Singh said Saturday. "But we are in the realm of politics, and within our coalition, there are differing perceptions."

Well. There you have it. The people of India all recognize that it is an incredibly good deal for them; they just can't do it because, no matter how fantastic the deal, they do not want to be associated with the United States. This is simply amazing. George Bush and Dick Cheney have literally made the US a despised leper internationally, even among allies.

There was a very good argument that this was an ill advised, bad deal for the United States to start with; so no tears should be shed on that front. The implications, however, for the reputation and standing of America in international and diplomatic relations, an area in which we have historically stood head and shoulder above all others, are simply devastating. Why is impeachment off the table? Can somebody please explain that?

[hauksdottir]

Completely O.T., but... we finally find out that there were no fingerprints on the murder weapon.

Valerie Plame should count herself fortunate.

Her government only outed her and her entire operation. (I STILL want to know who told Novak about Brewster Jennings! Meanwhile, David Kelly's government outed him, made his life hell, and finally murdered him.

I've made this point before, on this blog and others. Perhaps it is because I read mysteries, but I have a good nose for anomalies. It twitches when things don't add up, and Judy Miller's involvement sends the twitch-o-meter off the dial.

"And maybe someday we'll find out what David Kelly really knew, why HIS government outed him, what his relationship was with Judy, Judy, Judy, and why the investigation into his "suicide" covered more than it uncovered. If I was a spy for a western power, I'd be wondering about loyalty and risk when both the US and Britain will throw away good people for momentary reasons. The news cycle is momentary. Is a week's worth of embarassment so threatening that it is worth any price to quash it?"

http://thenexthurrah.typepad.com/the_next_hurrah/2007/03/reasonable_doub.html

"Question marks have already been raised over Dr Kelly's death after it was claimed neither the cut to his wrist nor the drugs he took were enough to kill him.

A Thames Valley police spokeswoman said: "It has been confirmed that there were no fingerprints on the knife. This, however, does not change the official explanation for his death.""

http://www.guardian.co.uk/uklatest/story/0,,-6997401,00.html

[emptywheel]

hauks

That is interesting. A nice FOIA, btw--bc there's no good explanation for the absence of fingerprints and it gets to murder and coverup PDQ.

[katie Jensen]

hauksdottir,

I've been waiting for this day with baited breathe. I think most of us who had a sense of cynacism about bushco from day one, thought it was awfully suspicious that the only identified person who could confront administration claims was Kelly and that he ended up dead in such a bizzare way. I work with suicidal folks and his death didn't go down in any way that made me believe it.

It felt capricious, sudden, too violent for a scientist, without any history of depression. Nope.

So glad that someone is checking the evidence and that it has finally made press.

It is time america faced the violent truth about it's country, but I fear this country can't handle the truth.

[Andrew Foland]

Comrades, what part of "secret" can you not understand? Not everything can be printed on the front page of Pravda! The capitalist running dogs will destroy the Motherland if we cannot torture their agents in Lubyanka!

[emptypockets]

I appreciate that AT&T is the devil and all that, but is it clear they are withholding this information voluntarily?

My memory is fuzzy now, but weren't there PATRIOT provisions that kept librarians(?) from saying anything if the government demanded records of who checked out which books -- so not only couldn't librarians refuse the request, but they couldn't complain/file suit about it either? I understand all the reasons for doubting AT&T's motives, but I'm just wondering for the sake of argument if it's possible that they've been put in a similar position.

By the way, for a great take on the evil power and plans of The Phone Company, you have absolutely got to rent the 1967 intrigue/spy spoof "The President's Analyst" (link).

[emptypockets]

YouTube link here

The Phone Company: "Well, it could happen, you see, if the President of the United States were to use the power of his office to help us mold public opinion, and get that legislation!"

[MarkC]

The President's Analyst.

Now THAT's a movie. Severn Darden! Godfrey Cambridge! Makes me wish I wasn't just a baby in the 60's.

In terms of the Telecoms, it was both prescient and also in error -- it was right in terms of technology leading to decreased privacy, but wrong in that it pointed the finger at the The Phone Company, when the real threat turned out to be a criminal cabal in the government that ended up enlisting the The Phone Company in its own sinister power grab.

[orionATL]

i have to say, ms e'wheel,

you a nose for news at least as good as anyone in the sanctified media.

if i recall correctly, you started writing about gillespie, telecos, communications spying etc. eons before the slow-moving corporate media had the issue thrust in their faces by unfolding events.

headline: "little furry weblog mammals out-compete lumbering corporate dinosaurs"

[orionATL]

correction:

"you have a nose for news.."

hate editing,

hate it,

but then...

[Neil]

Look whose Homecoming annoucement is above the fold.

Renowned Political Blogger to Discuss Online Journalism

More here.

[Kagro X]

Please discard pocket part "Article I."

[bmaz]

Why I haven't seen that in a long time; thought it was already gone....

[Neil]

KayBee Hutchison may leave early, won't seek re-election
link

[bmaz]

Somebody please make it stop. Pat Leahy is ready to shepherd Mukasey to a quick confirmation. From TPM:

"Michael Mukasey is headed for swift approval as Attorney General with scant objections, the powerful Democrat who will chair his confirmation hearings said Tuesday. "I would expect him to be confirmed," Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., told reporters after meeting with the former federal judge. "I like him."..."

This is simply stupifying. One after another, the Democratic leadersheep piddle and piss away the only levers of accountability we have. Is there any step they will not take to insure that there is no accountability for the Bushies and that the wrongs BushCo. have committed against our country and Constitution are ratified into general acceptability? Who will speak for us? Who will stand up and do the right thing? Who will uphold their oath to office?

[P J Evans]

bmaz, I just e-mailed Leahy and told him that 'like' is not for nominees: they used 'liking' Bush to get him elected, and see where that led. I said that I want 'competence' and 'honesty' instead of 'like'.

(I also told him that I'm a long-time but p*ssed-off D voter.)

[JohnLopresti]

Ostensibly the librarian gag ended, but thishearing in April 2007, after Justice Ginsburg ungagged the four clerks, seems to leave some room for the unpublishable requests to continue. Early coverage there; and Horton's chronicling seems quaint and maybe obsolete there, re: how Gonzales and McNulty approached the inflammatory matter, and about which aspect E.w. blogged several times in the past. Somewhere recently I had read Mukasey has a federal bodyguard payroll of $10.k/day, based on the volatile matters in which he wrote opinions in the 1990s, so, he is likely sensitized to the security aspect after all these years; but his record concerning speech is something I need to research.
About telco liability matters, I think if there were a frank history writing, a lot more than the flurry these past seven years would emerge; but that obviously is a key aspect of one of the problems Bushco faced, essentially by trying a political countermeasure, i.e. the secrecy rhetoric, to halt the Democrats' using business law, Republican administration engaged in its own excesses, ostensibly based on a tumultuous desire to control the lawless extranational groups that organized the destruction in 2001, but aggregating a host of ancillary interests, e.g., Rove's assignment to work with Gonzales to facilitate processing while staying within bounds which demarcate authoritarian separated from simple executive function in time of emergency. The standoff in polemics remains timeworn, though; there was an epoch when the nation flag was about the country and its stated ideals of civil society and world citizenship; however, an epoch followed during which the flag was grasped as a criticism of political opposition speakers. I work with what early technology mavens used to term machine rendering of voice, i.e. computerized printing of speech; it is amazing to see the capability of the software to produce almost readable text now, compared to the output only fifteen years ago. It is still flawed, but some passages in science material with which I work appear intact in perfect English as spoken with only a few defects in several paragraphs. The issues of oversight for use of such tools by the government is a crux, to me; besides storing raw data in the data silo, the datamining algorithms are going to find a lot in even clumsy machine produced text. But oversight is going to call for value judgments, a difficult question for congress to ponder as the administration sees PAA expiration near. We will read the ad hominems as goads to get congress to keep their oversight simple; yet, it is complex, and there is a body of germane constitutional caselaw.

[emptypockets]

I guess the librarian question really should have been put as two parts.
1) are telcos under a similar gag now as librarians were then?
2) other than their intrinsic evil, what distinguishes telcos now from librarians then?

I suspect the answer is that Congress legislated the librarian gag but not the telco gag. is that it?

JohnLopresti, "[when rendered by voice-recognition technology,] some passages in science material with which I work appear intact in perfect English" -- don't worry, with a few more years of development I'm sure you can get it to render English as unintelligibly as scientists speak it ;)

[Alyx]

jodi...what a crack up....secret..eh...well I guess they want to keep a secret that they are going through your phone and your records...that part I understand, what part don't you understand...or don't you care that your privacy can be embarked upon?

[bmaz]

emptypockets - Here is what a sample National Security Letter looks like. They are not just considered secret; they are formally considered classified. Recipients not only cannot disclose what was seized pursuant to the letter, they cannot even disclose that they have received the letter at all. And the government will most definitely prosecute for such an unauthorized disclosure.

[emptypockets]

bmaz, I guess -- by definition -- we can't know whether a letter like that is used on the telcos?

just to be clear, I am not at all versed in this story. I'm just trying to get the beginnings of a grip on it, and my first question is whether we know what the telcos options (if any) were.

[Alyx]

man are they still banging those doc's out on IBM selectric's?

[bmaz]

epockets - This is from the Nakshima WaPo article: "Verizon said it had received FBI administrative subpoenas, called national security letters, requesting data that would "identify a calling circle" for subscribers' telephone numbers, including people contacted by the people contacted by the subscriber. Verizon said it does not keep such information."

The EFF (Electronic Frontier Foundation) through FOIA requests and discovery in Doe v. Ashcroft have both independently verified that the DOJ has been prolific to a geometric scale in their use of NSLs. A 2007 DOJ audit of the FBI's use of the National Security Letter found that the FBI actually issued 39,346 requests on 10,232 non-U.S. plus 6,519 U.S. persons in 2003, 56,507 requests for 2004 (8,494 non-U.S., 8,943 U.S. persons), and 47,221 requests in 2005 (8,536 non-U.S., 9,475 U.S. persons). Moreover, review of a sample of NSLs in that DOJ report found that twenty-two percent of reviewed NSLs were not included in these higher estimates, suggesting that the true numbers are even higher. As far as options for the telcos in response to this abuse, that is a complicated question to answer, but there are options. For one, I believe they have the ability to approach the FISC, although it would be awkward. Also, a traditional court challenge could be mounted, as was done by an internet provider in Doe v. Ashcroft.

[bmaz]

epockets - This is also an interesting little article from the WaPo by an anonymous recipient of a NSL. My National Security Letter.

[Nor Cal John]

I don't think I have seen this in the comments, but it certainly leads me to believe that the reason that Article I is not allowed to see behind the curtain is because it is members of Article I that have/are the ones being spied upon (along with the rest of us.)

I can certainly fault this version of Democratic Congresscritters for their lack of action on so many issues, but maybe ole' bored Dick realized that while Congress will let our civil liberties flush down the toilet, but heaven forbid that their own emails and phone calls have been tapped.

[Nell]

@John LoPresti: Your posts are often interesting, so it pains me to have to complain. But the lackof paragraphs make them almost impossible to finish.

PLEASE consider your readers and introduce some paragraph breaks!

[Mary]

My training is such that I know you don't "know" what a word is until you look to see how the term is defined in the operative documents. Like torture - which apparently means If It Makes The Georges (Bush and Tenet) All Giggly And Gay Watching It, It's Not Torture - under the DOJ guidlelines.

So I looked to see what part of "secret" I didn't understand.

http://www.usconstitution.net/const.txt

Apparently, the founders and I have the same understanding about the right of any branch of government to break the law and stamp it secret.

So, Marcy, what you are saying is " the telecoms refuse to tell the Federal Government(legislative) what the other branch of the federal Government(executive) made them do?

It's actually worse than that. The telecoms have two outs under existing statutes if they were making the info available/cooperating with wiretapping: FISA Order or AG certification.

Otherwise, they were either a) not complying with the law and/or b)not making the information available in the conventional sense (for example, allowing Gov to have everything and access it, store it, review it, all on its own whenever however and on whim).

So they are basically telling Congress that whether or not they complied with Congressionally drafted and voted into law statutes is a secret.

They are saying to Congress: if we broke the law - George says we can keep it a secret.

Basically, I'm thinking the panic is bc they don't have certifications (go look at Comey's answers to Spectre about the doc being [not]signed off on and how it is not related to any statute). They don't have them bc they bought some story like (this is just one possiblity-could be lots of stuff): IF gov had the apparatus to suck up whatever it wants, whenever it wants, that leaves them (the telecoms) out of the chain of activity and authorization and they don't have to have a certification bc the telecom isn't the actor/interceptor.

If there are no certifications - that looks, on its face, like a prima facie case for illegality. To rebut that - the telecoms would have to come up with the argument as to why they didn't need them (even in a redacted form, they could be making something available if they had it).

In order to make [something like] the [very lame] arguments that no AG certification was needed bc the telecom didn't actually have to cooperate to turn over info- NSA already had all the info and could do what it wanted - the telecom would have to reveal how NSA could get that info on its own, without telecom activity. And that becomes difficult without revealing bigger elements of 'teh program.'

http://www.usconstitution.net/const.txt

[....]

'secret' and 'freedom'... interesting clash of words... while the leaders of the preswnt roman empire loudly proclaim about the great freedoms that exist in this proud empire, they continually increase the number of declarations saying everything is secret and out of bounds... some folks, who are too brain dead to notice this and who will go unnamedfor the moment, can't seem to see the irony in any of this...what part of it don't they understand????

[bmaz]

Mary - You know what I say about that? I am pretty sure you do. Too fucking bad. Just because the telcos and the Administration put their family jewels in a Catch-22 hydraulic vise is neither our, nor Congress's, problem. And as to that Constitution thingy you referred to, there actually is real caselaw out there (as opposed to Addington/Yoo Invisible Magical Mystery Law) for the proposition that you don't get to blithely invoke secrecy and/or classification to wrongfully shield criminal, unconstitutional and unethical behavior. Furthermore, I see no issue whatsoever in relation to establishing a prima facie showing of criminality and impropriety to trigger such an inquiry; so game on. That is if any of our complicit, lilly livered, derelict Democratic Leadersheep will put the issue "on the table".

[kim]

Impeach Dick Cheney, impeach him now. (paraphrasing Brad DeLong)

[radiofreewill]

It's starting to look more and more like Bush:

- used 911 to 'inflate' an extra-legal 4th Branch that operates above the Rule of Law
- informed a 'select' number of Dems (Pelosi, Reid, Rockefeller, Harman, etc) about the 4th Branch, but told them they couldn't tell anyone or do anything with the information
- Unilaterally ordered Private Sector compliance with anything GWOT-related
- didn't provide legal justification to anyone outside a small coterie of compartmentalized DoJ-WH lawyers (Yoo-Addington)
- covered their 'activities' with *AG* certifications that were 'blind' to the legal justification
- mis-used administrative subpoenas, NSL's, to go 'below the threshold' of 4th Amendment Probable Cause
- collected three degrees of data per person-tap (wtf? probable cause by association?)
- operated 'outside' of FISA while warrantlessly wiretapping Citizens
- refused to provide auditable documentation of activities

So, giving the Telecoms Immunity is the reverse of taking away the IG protections of the NSA Rank and File workers, but they both serve the same purpose - to 'hold harmless' the Agents of Bush's Directives.

All being done without any apparent legal review. Just sort of putting the 4th Branch Bus in reverse right over its own tracks.

Quite the fashion these days, Free Passes being handed out everywhere.

What's up?

[dude]

I am not a lawyer, and I really try hard to understand the reasoning used by people on this blog. Alot of you seem to know the law. And yet, nothing of legal consequence seems to happen when these offenses and crimes against our rights and our Constitution are inflicted. Present case of the telecos is a good example. There seems ample enough legal argument to be made against this secrecy, but it also seems the entire structure of law and justice can't handle, process or digest it, so we are fucked.

So I want to know: when the day comes and Bush is history and this whole thing can be tossed out, who is doing the re-writes and what can they possibly say to prevent this whole mess from happening again?

It would seem on its face that we are not talking about re-writing mere statues and codes, because that is what is being used to defeat basic premises of Constitutional Law.

It is also clear nobody wants to walk into the SCOTUS that leans heavily rightward and toward the unitary executive to test any of the present precedents Bush has obviously put in place and nobody has challenged. That means the present shit will stand at the code and regulatory level.

So what's really left to change things and right them? It seems to me the over-arching principles that govern the whole shebang (The Constitution itself) has to be somehow adjusted to nullify the crap.

Is this making any sense to you?

[bmaz]

Dude - Yeah. Totally makes sense. The problem is that the people responsible for enforcing and protecting the Constitution willfully refuse to do so. That would be Congress and the majority party (Democrats) controlling Congress. Since any amendment would need to be passed by Congress in order to be sent out to the states for ratification, there really is no prospect of change via such method. Quite frankly, I do not think the Constitution needs to be amended to allow citizen initiative (see the hell this has caused on the state level in California); the real answer is to elect Congressional representation that will actually live up to their obligations and perform their duties.

[P J Evans]

Arlen is saying he's against telecom immunity, per Talking Points.
(Of course, since it's Arlen, he'll do whatever Cheney wants.)

[JohnLopresti]

JBalk'n waxes loquacious on the due process concerns, especially, as many of you elaborate, congress' responsibility to look at this recent history and then to write more checks and balances into FISC authorizing legislation.

[tryggth]

Really tangential...

But I'm amused by the possibility that the non-complying telco(s) have used the rarely utilized 3rd Amendment in their briefs. :)

[Kagro X]

Yes, Dude.

The real question here isn't Jodi's ridiculous one, "What part of secret do you not understand?"

It's the much more frightening prospect that we might need to ask "What part of state do you not understand?"

No one knows what the law is anymore. Not what the law says, but what it is. What does it mean to have law, if no one need obey it? If no one will enforce it? If it can be customized as necessary?

It isn't what we thought it was. As Mary says, we have no common understanding we can any longer trust that we're talking about the same thing -- or even the same kind of thing -- when we talk to one another about what law is, and what constitutes it.

This is more than a subversion of the Constitution. It is an assault on the social compact underlying civilization. And here we are counting noses to see whether we dare say anything about it.

[MarkL]

Anybody ever read Stanislaw Lem's "Eden"? I'm reminded of the epistemics of "procrustics" ( in the translation I read".
Prescient book.

[pdaly]

Does the Neocon cabal require a "war footing" for their Unitary Executive theory to work?
If so, then pre 9/11 spying on Americans puts BushCo in the doghouse. In In Damn Spot.

[Hmmm.]

For the reason pdaly points out, I am concerned that right now could be about the most dangerous time we have yet seen. Some powerful people could, perhaps, be getting rather desperate about now. I'm keeping a constant eye on the news, in case.

Hmmm.

[dude]

Slow getting back to the thread. The above comments suggest that we are at least witnessing the same disaster unfold along the same dimensions.

I am intriqued by the pdaly comment on war-footing. This is one reason why I think many of us still feel impeachment is a good route to take (exposing the truth and getting a precedent setting verdict in public, perhaps re-adjusting our understanding of the "social compact" referred to by bmaz). But the same folks who took it off the table are still going to be around next term too. I for one do not believe the cleansing effects of impeachment will occur for the same reason carrying statutory arguments to the Supreme Court won't work: the players won't play ball, don't trust the referees, and won't follow the rules.

This is usually the point where someone says,"Well, I'll just take my ball and go home!"
Which is exactly what Hmmm is worried about.

[dude]

Sorry, it was KagroX who refers to 'social compact' and the meaning of 'state' as well as 'law'. I find your comments very interesting every time I read them. I mess up attributions on this website because of the "posted by"-line which I misread as a header, not a footer.

[Kagro X]

I don't mind being misidentified. There are no royalty checks.

[bmaz]

He always says smarter and more cogent things than I do.......

[MarkH]

"Does the Neocon cabal require a "war footing" for their Unitary Executive theory to work?
If so, then pre 9/11 spying on Americans puts BushCo in the doghouse. In In Damn Spot."
Posted by: pdaly | October 16, 2007

Given their predeliction for making up shit they'll probably just say we've been (secretly) at war since the day he came into office and that given his Constitutional powers it's okay to spy on people, deny Congress oversight, wage wars on innocents and steal money by the pallet-load.

Same ol same ol.

Of course, as time goes by the public is catching on. The question is how far they will want to go or how far they will let Congress go in exacting Justice to prevent this crap from happening again.

[Kagro X]

What need of a war footing? Or at least, what need of a publicly acknowledged war footing?

The matter of whether or not we're on a war footing is itself a matter of national security, and as such, is a state secret. You are not permitted to inquire as to whether or not we're on a war footing.

Neither are you permitted to simply assume that we are, because the "administration" does not acknowledge that a war footing is necessary in order to imbue the president with his inherent powers. Why not? Because that would be giving away too much information to the enemy, whom we also do not acknowledge to exist, lest we embolden them. Which we do not acknowledge is possible, since they might not even be there.

[bmaz]

We are going to have to redact the last comment. It gives away too much; Americans are already dying......

[bmaz]

And the people responsible for sacking the last comment have, themselves, been sacked.

[Kagro X]

We can neither confirm nor deny that we can neither confirm nor deny that.

[orionATL]

JohnL

thanks for the cite.