When last we left the U.S. Attorney General, he and the Deputy Director for National Intelligence were leisurely explaining to the piss-poor American press corps the "legal underpinnings" for the Executive Branch&undefined;s warrantless searches of the electronic communications of its subjects—phone calls and email messages, largely. (Though if, as alleged, Dan Rather really had been using hand- and/or facial-signals while delivering the CBS Nightly News in the summer and fall of 2004 to communicate directly with Osama bin Laden and his top lieutenants in a bid to overthrow the Bush regime, presumably the National Security Agency would have intercepted and decoded these signals, too.) As the Attorney General explained (Dec. 19), the Executive Branch&undefined;s rights and powers to engage in the electronic surveillance of its subjects derive from two alleged facts of American life. First, that the Authorization for Use of Military Force resolution adopted jointly by the Senate and the House of Representatives on September 14, 2001, and signed into law four days later by the President, granted the Executive Branch expansive war-powers "for the duration of the hostilities," along with a vast array of legal practices that count as "fundamental incidents of war," including warrantless searches and seizures. "Our position," the Attorney General stated, is "that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence." And not only to engage in "signals intelligence." But also to engage in anything else that counts as a "fundamental incident of waging war." Whether it be declaring a category of enemy combatant that falls outside Geneva Convention-type protections and U.S. law. Denying the Congress and the Judicial Branch oversight powers. Bombing and invading foreign countries. Even declaring the President the King of Infinite Space. All of this flows from the September 14, 2001 Authorization for Use of Military Force. Second, more brazenly, the Attorney General explained that the "President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." Where this kind of activity specifically refers to the warrantless searches and seizures of American citizens. And by inherent authority is meant the kind of authority that falls to the President during wartime—the authority to use all necessary means to wage the war for as long as the United States is at war. Now. All of this may sound viciously circular. Good. Because it is viciously circular. Nor is there any actual legal reasoning taking place here. At least none worth mentioning. Just a lot of posturing. Legerdemain. Head-fakes. Legalistic dekes. Shucking and diving. As I have been repeating for quite some time now, none of what the Executive Branch and its acolytes at the statist-reactionary end of the global political spectrum have been arguing makes any sense at all as an argument unless one first is willing to make a simple assumption—an assumption that quite typically is left unstated, though an assumption the force of which is betrayed by everything this regime does, and by most of what its members say, whenever they scramble to explain what it has been doing (witness the Attorney General&undefined;s Dec. 19 news conference): Namely, that the United States is a Tyranny. And that within the U.S. system of government, the President is The Law. Indeed. Everything that seems difficult, if not impossible, to accept about the Executive Branch&undefined;s various exercises in legal rationalization for all kinds of criminal conduct resolve themselves instantaneously once we disregard the kind of nonsense taught in Constitutional Law and Civics classes, adopt the point of view of an American Tyranny—and learn to love the War on Terror, and stop worrying. I mean, wasn&undefined;t this the gist of the argument—if we can call this kind of monumental question-begging an argument—marshalled by the Attorney General in the document his office delivered to the Senate only yesterday? "As I have previously explained," the Letter of Transmittal asserts, "these [National Security Agency] activities are lawful in all respects….In the ongoing conflict with al Qaeda and its allies…." And so on. And so on. The trump card (i.e., legal rationale, the ultimate debate-silencer) throughout all of this is that we are living in an Age of Terror or that we are engaged in the War on Terror (and the like). This War is global in scope and infinite in duration. (At least no end is in sight.) From here, how much further does one really need to read? A tyranny…well…is a tyranny. The Tyrant a Tyrant. The U.S. National Security State a National Security State. Logically, the existence of the tyranny, the Tyrant, the National Security State, precedes all else. But the essence of the Enemy in particular. Therefore, (a) since as far as the U.S. National Security State is concerned, all times are war-times; (b) since the current War on Terror truly is global in its dimensions (if not yet interstellar), and the territorial United States clearly falls within the War on Terror&undefined;s global theater of combat; naturally (or inherently), then, (c) it follows that our bedrooms, bathrooms, and kitchens, our backyards and automobiles, our interpersonal lives and the entire social contract to boot (but especially our neighbor&undefined;s sexual practices), and, last but certainly not least, our inner lives, our psyches, our hearts and our minds and our souls, also are theaters within this all-encompassing conflict—theaters over which the Executive Branch exercises sovereignty, ultimately. This, roughly and sketched in thumbnail fashion, is where the Executive Branch&undefined;s "argument" on behalf of the rights and prerogatives of the American Tyranny currently stands. The Bush regime has proclaimed the "Homeland" to be no less a theater in its "War on Terror" than the mountainous border region between Afghanistan and Pakistan or the streets of Baghdad and Fallujah. Let&undefined;s face the facts: We are all unlawful enemy combatants now. Our only real choice is between celebrating this fact. Or cowering in fear before it. There is no middle ground.
Authorization for Use of Military Force Joint Resolution, United States Congress, Public Law No: 107-40, September 18, 2001 "Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence," White House Office of the Press Secretary, December 19, 2005 Legal Authorities Supporting the Activities of the National Security Agency Described by the President, U.S. Department of Justice, January 19, 2006 (as posted by FindLaw.com). (Also see the accompanying Letter of Transmittal from U.S. Attorney General Alberto Gonzales to U.S. Senate Majority Leader Bill Frist, Jan. 19, 2006.) Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Elizabeth B. Bazan and Jennifer K. Elsea, Congressional Research Service, January 5, 2006 Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions, Alfred Cumming, Congressional Research Service, January 18, 2006 "Why the NSA Surveillance Program is Unlawful," Geoffrey R. Stone et al., The Faculty Blog, Law School of the University of Chicago, January 9, 2006 "The Hidden State Steps Forward," Jonathan Schell, The Nation, January 9, 2006 "Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends," Lowell Bergman et al., New York Times, January 17, 2006 "White House steps up defense of surveillance," Bob Deans, Atlanta Journal-Constitution, January 20, 2006 "White House details its eavesdropping defence," Caroline Daniel, Financial Times, January 20, 2006 "Domestic Spying Gets a Boost," Richard B. Schmitt, Los Angeles Times, January 20, 2006 "Legal Rationale by Justice Dept. on Spying Effort," Eric Lichtblau and James Risen, New York Times, January 20, 2006 "Bush launching aggressive defense of eavesdropping," Steve Holland, Reuters, January 20, 2006 "Justice Dept. gives 42-page rationale for secret spying," Edward Epstein, San Francisco Chronicle, January 20, 2006 "Administration Paper Defends Spy Program," Carol D. Leonnig, Washington Post, January 20, 2006 "Treason and the American President," ZNet, December 18, 2005 "Attacking Domestic Society I," ZNet, January 8, 2006 "Attacking Domestic Society II," ZNet, January 20, 2006
Postscript (February 10, 2006): "Vice President Cheney and the Fight over &undefined;Inherent&undefined; Presidential Powers," John W. Dean, FindLaw.com, February 10, 2006
Postscript (March 17, 2006): Some very important material here on the depths to which the criminal spirit flows beneath the American Government:
And since we ourselves can&undefined;t vote the Military-Industrial Complex – slash – National Security State out of office—and by this stage in American history, any national election in which the liquidation of this complex of institutions isn&undefined;t an option must be regarded as worse than a sham—indeed, as a colossal subversion of the will of the people—perhaps the time has come for us to begin to appeal to those other forces around the world that might be able to come and help liberate us?
Postscript (May 11): For a frightening wake-up call of how expansive the state of the American tyranny really is:
"NSA Has Massive Database of Americans&undefined; Phone Calls," Leslie Cauley, USA Today, May 11, 2006
"The NSA&undefined;s domestic program," Leslie Cauley explains, "is far more expansive than what the White House has acknowledged."
Last year, Bush said he had authorized the NSA to eavesdrop – without warrants – on international calls and international e-mails of people suspected of having links to terrorists when one party to the communication is in the USA. Warrants have also not been used in the NSA&undefined;s efforts to create a national call database.
In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," Bush explained, "one end of the communication must be outside the United States."
As a result, domestic call records – those of calls that originate and terminate within U.S. borders – were believed to be private.
Sources, however, say that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans. Customers&undefined; names, street addresses and other personal information are not being handed over as part of NSA&undefined;s domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information.
Every person involved in this criminal enterprise belongs behind bars.