Saturday, August 04, 2007

If the US is a battlefield in the War on Terror, Who are "The Terrorists?" You, that's who.

First Amendment Militia - Free Press Uniform Tee shirt

First, a little history lesson on the justification for the Iraq war by means of deceit, deception and demagoguery.

As a result, even deeply conservative Republicans are troubled; Bruce Fein, for example, is speaking out against Bush and his badly-hidden agendas. What agendas? Well, with all the utter bullshit flying about, it's difficult to say for sure, but a few truths are emerging. Alternet is bold enough to baldly come to this conclusion about the Administration's domestic spying agenda.

The extraordinary secrecy surrounding the spying operations revealed in Alberto Gonzales' Senate testimony is not aimed at al-Qaeda, but at the American people.
They proceed to back it up with both reason and evidence, evidence based primarily on Gonzalez's awkward and obvious perjuries.

Sorry, Perjury is a legal term. Let me restate it; his lies.

Anyway, here's some reason to seriously doubt assertions that a total cloak of secrecy on the matter of the extent of domestic surveillance is vital to national security.

[T]here's no reason to think terrorists would change their behavior significantly if they knew that the U.S. government was engaged in massive data-mining operations, poring through electronic records of citizens and non-citizens alike.

The 9/11 attackers mostly stayed off the grid and many of their transactions, such as renting housing, would not alone have raised suspicions. Indeed, the patterns that deserved more attention, such as enrollment in flight-training classes and the arrival of known al-Qaeda operatives, were detected by alert FBI agents in the field but ignored by FBI officials in Washington -- and by Bush while on a month-long vacation in Texas.

Bruce Fein is far more troubled by the threat the President poses to the future of this nation than any number of Al-Queda attacks.

Via Raw story, a dry, but thorough excerpt from his statement before Congress regarding legal and constitutional issues surrounding the President's willful misinterpretation of the AUMF as justification for domestic surveillance in violation of FISA.

President Bush’s intent was to keep the program secret from Congress and to avoid political or legal accountability indefinitely. Secrecy of that sort makes checks and balances a farce. Sunshine is the best disinfectant. Popular government without popular information is impossible. Neither Congress nor the American people can question or evaluate a program that is entirely unknown. Mr. Bush could have informed Congress that he was acting outside FISA without disclosing intelligence sources or methods or otherwise alerting terrorists to the need for evasive action.

Since 1978, FISA has informed the world that the United States spies on its enemies, and disclosing the fact of the NSA’s warrantless surveillance program would not have added to the enemy’s knowledge on that score. That explains why the Bush administration continued the program after The New York Times’ publication. Second, President Bush’s refusal to disclose the number of Americans that have been targeted under the surveillance program and the success rate in gathering intelligence useful in thwarting terrorism from Americans targeted makes a congressional assessment of its constitutionality or wisdom impossible. Fourth Amendment reasonableness pivots in part on whether the government is on a fishing expedition hoping that something will turn up based on statistical probabilities, like breaking and entering every home in the United States because a handful of emails might be discovered showing a communication with an Al Qaeda member. Without knowing the general nature and success of the surveillance program, Congress is handicapped in fashioning new legislation or undertaking other appropriate responses.

Third, President Bush’s interpretation of the AUMF is preposterous, not simply wrong. FISA is clearly a constitutional exercise of congressional power both to protect the Bill of Rights and to regulate the power of the President to gather foreign intelligence through either electronic surveillance or physical searches during both war and peace. The necessary and proper clause in Article I authorizes Congress to legislate with regard to all powers of the United States, not simply those of the legislative branch. Congress was emphatic that FISA was intended as the exclusive method of gathering foreign intelligence through electronic surveillance or physical searches. And FISA was enacted when the United States confronted a greater danger to its existence from Soviet nuclear-tipped missiles than it does today from Al Qaeda. The argument that the AUMF was intended an exception to FISA is discredited by the following. Neither any Member of Congress not President Bush even hinted at such an interpretation in the course of its enactment, including a presidential signing statement. The interpretation would inescapably mean that the AUMF also was intended to authorize President Bush to break and enter homes, open mail, torture detainees, or even open internment camps for American citizens in violation of federal statutes in order to gather foreign intelligence. To think Congress would have intended to inflict such a gaping wound on the Bill of Rights by silence is thoroughly implausible. The AUMF argument was concocted years after its enactment. It does not represent a contemporaneous interpretation entitled to deference. Further, numerous provisions of THE PATRIOT ACT would have been superfluous if the AUMF means what President Bush now says it means. Finally, FISA is a specific statute prohibiting the gathering of foreign intelligence in both war and peace except within its terms, whereas the AUMF is silent on the issue of foreign intelligence. The specific customarily trumps the general as a matter of statutory interpretation. FISA is more definitive against the President than the failure of Congress to enact legislation in Youngstown because the former tells the Commander-in-Chief “you cannot act” whereas the latter simply said “we are not conferring this power to seize private businesses.” Fourth, President Bush has evaded judicial review of the legality of the NSA’s warrantless surveillance program by refusing to use its fruits in seeking FISA warrants or in criminal prosecutions. Pending private suits are problematic because of difficult standing questions. The President’s evasion of the courts makes it proper for Congress to step into the breach to express its on view on the legality of the spying program. Fifth, President Bush’s theory of inherent prerogatives under Article II to justify warping a natural interpretation of the AUMF would reduce Congress to an ink blot in the permanent conflict with international terrorism. The President could pick and choose which statutes to obey in gathering foreign intelligence and employing battlefield tactics on the sidewalks of the United States, akin to exercising a line-item veto over FISA and its amendments.

Of course, the question to all of the above is why. What possible motive would the President have for taking these and many other steps that have alarmed a growing proportion of the informed public? Dave Lindorff, writing at, suggests that a declaration of martial law is the next step in the evolution of the President's ambitions and notes that everything is in place save an appropriate pretext.

From the looks of things, the Bush/Cheney regime has been working assiduously to pave the way for a declaration of military rule, such that at this point it really lacks only the pretext to trigger a suspension of Constitutional government. They have done this with the active support of Democrats in Congress, though most of the heavy lifting was done by the last, Republican-led Congress. [Emphasis Mine]

The first step, or course, was the first Authorization for Use of Military Force, passed in September 2001, which the president has subsequently used to claim-improperly, but so what? -that the whole world, including the US, is a battlefield in a so-called "War" on Terror, and that he has extra-Constitutional unitary executive powers to ignore laws passed by Congress. As constitutional scholar and former Reagan-era associate deputy attorney general Bruce Fein observes, that one claim, that the US is itself a battlefield, is enough to allow this or some future president to declare martial law, "since you can always declare martial law on a battlefield. All he'd need would be a pretext, like another terrorist attack inside the U.S."

The 2001 AUMF was followed by the PATRIOT Act, passed in October 2001, which undermined much of the Bill of Rights. Around the same time, the president began a campaign of massive spying on Americans by the National Security Agency, conducted without any warrants or other judicial review. It was and remains a program that is clearly aimed at American dissidents and at the administration's political opponents, since the Foreign Intelligence Surveillance Court would never have raised no objections to spying on potential terrorists. (And it, and other government spying programs, have resulted in the government's having a list now of some 325,000 "suspected terrorists"!)

The other thing we saw early on was the establishment of an underground government-within-a-government, though the activation, following 9-11, of the so-called "Continuity of Government" protocol, which saw heads of federal agencies moved secretly to an underground bunker where, working under the direction of Vice President Dick Cheney, the "government" functioned out of sight of Congress and the public for critical months.

It was also during the first year following 9-11 that the Bush/Cheney regime began its programs of arrest and detention without charge-mostly of resident aliens, but also of American citizens-and of kidnapping and torture in a chain of gulag prisons overseas and at the Navy base at Guantanamo Bay.

The following year, Attorney General John Ashcroft began his program to develop a mass network of tens of millions of citizen spies-Operation TIPS. That program, which had considerable support from key Democrats (notably Sen. Joe Lieberman), was curtailed by Congress when key conservatives got wind of the scale of the thing, but the concept survives without a name, and is reportedly being expanded today.

The only problem with the declaration of martial law, aside from the fairly straightforward matter of generating a suitable pretext, is the question of "you and what army." Lindorff continues:

Bruce Fein isn't an alarmist. He says he doesn't see martial law coming tomorrow. But he is also realistic. "Really, by declaring the US to be a battlefield, Bush already made it possible for himself to declare martial law, because you can always declare martial law on a battlefield," he says. "All he would need would be a pretext, like another terrorist attack on the U.S."

Indeed, the revised Insurrection Act (10. USC 331-335) approved by Congress and signed into law by Bush last October, specifically says that the president can federalize the National Guard to "suppress public disorder" in the event of "national disorder, epidemic, other serious public health emergency, terrorist attack or incident." That determination, the act states, is solely the president's to make. Congress is not involved.

Fein says, "This is all sitting around like a loaded gun waiting to go off. I think the risk of martial law is trivial right now, but the minute there is a terrorist attack, then it is real. And it stays with us after Bush and Cheney are gone, because terrorism stays with us forever." (It may be significant that Hillary Clinton, the leading Democratic candidate for president, has called for the revocation of the 2002 Authorization for Use of Military Force against Iraq, but not of the earlier 2001 AUMF which Bush claims makes him commander in chief of a borderless, endless war on terror.

I've devoted extensive thought to the imposition of Martial Law and the resulting Civil War that I strongly believe it would provoke. The key to my understanding has always been the lack of available boots on the ground and the very important question as to the percentage of US forces who are willing to fire upon fellow citizens. I've mentioned this as an imponderable, simply because there is no real way to know until it happens, but I'm quite certain that obedience to presidential orders cannot be taken for granted. Lindorff concludes with the observation that, due to overuse of the existing military and an increasing resistance to continued service on the part of vital mid-level officers who would be vital to such an enterprise, it's increasingly unlikely that the president could impose martial law - at least, not upon the United States as a whole. I and many others publicy doubt the ability of the current available forces to pacify California, or even Greater Los Angeles.

But then, the Administration must be aware of that. So expect a continuation and escalation of covert actions against the American People, particularly those that present either symbolic or direct threats to the President, or to his network of backers and advocates. I particularly expect the administration to use "The Financial Death Penalty" against a number of carefully selected targets, along with an effort to keep those actions secret for as long as possible, while the Pentagon - through it's contractors, such as Blackwater - attempts to develop an "off the books" force of mercenaries that
could be relied on.

I must rely on others better positioned than I am to discern how well-advanced such efforts are, if they exist, and to what degree they are feasible. But there are hints and rumors out there that covert activity is not the sole province of the President's Men. There are a lot of former military people with quite current skills who are disaffected and determined to do something.

My conclusion is that the Administration wold be well advised to put off it's apparent plans for world domination at least another generation.

But then again,
when has the Administration ever profited from being well-advised?


Dave Lindorff wrote:

To readers of the This Can't Be Happening! website:

In a curious coincidence, the day that this site published an article on the string of steps that this government has taken to put in place the legal niceties to Prepare for a Potential Declaration of Martial Law, including a sidebar on the possibility of an assassination of Pat Tillman,
my site suddenly ceased allowing me to access it for any further editorial changes.

I have been in repeated contact with the help desk (sic) at Earthlink, and have been informed that the site's pages have been "Fatally Corrupted."They advised me that I might have to rebuild the site and start over.

When I pointed out that the site itself is still up and available to readers, and so should be recoverable on the server, they said that they would attempt to fix it, making it a "priority" item.

That was yesterday.

It has now been locked down for a total of 4 days.

Not sure what to make of the whole thing at this point, though it could all just be coincidence
and innocent ineptness at Earthlink.

Dave Lindorff
Interesting, don't you think?

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