Barack the Cable Guy?

That's the way in which liberal commentator, Bob Beckel, describes Barack Obama in this piece from a couple of hours ago. The reference is meant in the nicest possible way. You see, Barack Obama is all about getting things done. (as such the Cable Guy reference, Get'er done)

What the Republicans and many in the political chattering class are calling flip flopping by Obama is nothing more than political pragmatics, and Obama is very good at it. In fact, given the array of problems facing the next president, learning to adjust as events warrant will be an essential tool. Obama is only concerned with mastering whatever process is needed to get from here to there, nothing more, nothing less.

Obama is not trying to lead America to an era of post partisanship. The whole fixation with post partisanship was ridiculous to begin with. Democracy can not survive without partisanship. What Obama is about is seeking an era where 20th century political polarization will be replaced by a 21st century era of political realism where practical consensus among partisans replaces ideological obstructionism. That is not idealism, it is good politics.

To be sure Obama has adhered to 20th century liberalism in his brief political career, but that's what the Democratic Party process demanded to secure the presidential nomination. All those Democratic interest groups who think Obama is the next generation FDR or JFK are in for a rude awakening. This guy isn't about adherence to a liberal agenda long past its political life expectancy and usefulness (and for years it was so very useful). And he certainly isn't a closet adherent to a conservative agenda that has thankfully run its course and is now thoroughly discredited.

Barack Obama is about process not ideology. He's Larry the Cable Guy but with a Harvard education and a towering intellect. As Larry is fond of saying "you gotta do what it takes to get 'er done", and Obama will do just that as president. Good for him. Good for the country. It's not complicated, and it should come as no surprise. It is exactly what Barrack Obama has done his entire adult life, but for some reason most people either don't get it, don't believe it, or chose to deny it.

The main problem with this analysis is two fold. First, this so called spirit of bi partisanship and pragmatism that Beckel thinks simply "gets things done", just happened to conveniently be discovered just in time for the general election. So, this spirit of cooperation that has replaced partisanship also happens to put him in the best electoral position. Right after he rode a wave of partisan liberalism to the nomination, he is now attempting to ride a spirit of bipartisanship during the general.

Second, and significantly more troubling, is that Obama has never really gotten anything done besides getting himself elected. For instance, Beckel points to Obama's 2000 loss for the U.S. House of Representatives as a sign that Obama learns and gets things done.

When Obama read the cards wrong and got crushed in a congressional race he changed tactics and ran for the Illinois State Senate. He had read the cards right until the retiring incumbent changed her mind and the machine told him to back out. To "get 'er done" he successfully challenged the signature petitions for not only the incumbent but four other challengers and had them all disqualified. He then allied himself with the powerful Senate leader to get his support for the US Senate. Once again Obama "got 'er done".

Of course, the problem is that everyone agrees that Barack Obama is very skilled at getting himself elected. After all, he is a first term Senator with a history of accomplishing nothing and now he is on the brink of becoming elected President. Of course, getting himself elected is not the same thing as getting things done.

Here is how Beckel portrays some of Obama's record of getting things done.

While he genuinely opposed the Iraq war he recognized that the cards gave him an opening to challenge the Democratic frontrunner for president who supported the war. His anti war credentials gave him the support of the most fervent Democratic activists who, along with his experience as an organizer, gave him the caucus victories he would need to overcome the frontrunners advantage in big state primaries.

Now Obama runs for president and the cards have changed once again and he adjusts accordingly. He wants out of Iraq but recognizes he needs the military to support significant troop withdrawals so he is willing to 'refine' his 16 month timeline. He recognizes that he misplayed his hand on bitter gun-loving church goers so he finds a nuance to support the Supreme Court's reversal of the DC gun ban. Ditto the surveillance of private telephone conversations.

Obama's recent openness to offshore drilling is the cable guy at his best. Listen carefully and what he said was he might be willing to compromise a wee bit on drilling but you can be sure he will get in exchange most of his own energy plan including massive investment in alternative energy. In other words the cable guy will give a little in order to "get 'er done".

But the cable guy knows that in order to find consensus on a myriad of issues that are acceptable to him he must raise the bar on the stakes involved in failure to achieve consensus. Hence the soaring rhetorical symphony that heightens the expectations for the play on the stage where his opponents must meet him. Although the danger of soaring to messianic heights has the potential to (and to a degree has) become a negative in a campaign setting, it is an essential ingredient in the cable guy's prospects of success should he be elected president.

Of course, none of these are proof of anything besides a politician that knows how to read a standard poll. Obama still refuses to acknowledge that the surge he opposed worked. Furthermore, he has always been for some sort of a timeline and he has always been for some sort of a residual troop presence after the withdrawal. The only thing that has been adjusted is the the beginning of the timeline and the size of the residual force. The only thing that has changed is the facts on the ground. In other words, Iraq has improved so drastically that his plan seems to some as plausible. Of course, had Barack Obama had his way he would have withdrawn most troops long before things improved.

As for off shore drilling, the only thing this shows is that Obama can read polls. Simply acknowledging that he might be in favor of some drilling is not getting things done. If Barack Obama really wanted to get things done, he would have demanded the Senate get back in session. Simply acknowledging his brand new support for qualified drilling while the Senate is on recess while doing nothing to make it a reality, is simple and naked political opportunism.

The same can be said about his sudden reversals on the second amendment and warrantless wiretapping. The only thing that Obama did was put his own position in line with the majority of the population just in time for the general election. His change in position was NOT done in conjunction with any bill or other legislative action. He has lead on none of these issues. He promised to lead a filibuster of the warrantless wiretapping bill while his audience was mostly liberal activists. Once it was time for him to lead, he pandered to a totally different audience instead. That isn't getting things done but naked political pandering.

In fact, this whole analysis is shockingly lacking in substance. Normally, I find that Beckel is informed in his liberal positions. In this piece, all he really does is twist the truth to turn naked political opportunism into some sort of pragmatic spirit of getting things done. When you examine Barack Obama's record, nothing could be further from the truth than some sort of bi partisan spirit of getting things done.

Warrantless Wiretapping Passes

Fox News reports the bill passed the Senate 69-28.

The Senate on Wednesday approved a bill that will overhaul rules on terrorist surveillance while giving the Bush administration a win it had sought for months: legal immunity for telecommuncations companies that helped in its secret eavesdropping program.

The Senate approved the changes to the Foreign Intelligence Surveillance Act on a 69-28 vote.The action sends the bill the president's desk. The House approved the measure last month.President Bush is expected to give remarks from the White House Rose Garden at 4 p.m. ET.

Earlier Wednesday, senators affirmed their intention to follow through on a promise to protect telecoms by turning back three amendments that would have altered the bill.

The long fight on Capitol Hill — lasting nearly a year — has centered on one question: whether to shield from civil lawsuits telecommunications companies that helped the government eavesdrop on American phone and computer lines after the 9/11 terrorist attacks, without the permission or knowledge of a secret court created by FISA.

Hot Air has all the latest updates. I predicted months ago that we would be where we are now and that ultimately this bill would pass largely in the condition it is in. The Democrats have spent the last four months doing a lot of accusing, fingerpointing, and espousing soaring rhetoric and in the end, they backed down to the President and gave him what he wanted. I predicted this because the Democrats have played chicken with the President on national security multiple times since 2006 and each time they have backed down. They have just done it again.

As for Obama, he voted in favor of two separate amendments that would have put retroactive immunity for telecom companies in jeopardy. Each failed. He ultimately voted in favor of the final bill which will give them retroactive immunity. Hillary voted against the final bill and Hot Air hypothesizes that the netroots might have a last minute change of heart.

The nutroots for their part are lamenting. Here is Daily Kos , the Huffington Post, and this stinging rebuke from Glenn Greenwald at Salon. More troubling for Senator Obama is the mutiny going on at his own web site over FISA. Here is the Chicago Tribune story (H/T to Red State). I continue to predict that this move to the center won't have a large effect on Obama however if he moves to the center on Iraq...that is another story.

We aren't going to know how much damage, if any, this has had until the July fundraising numbers come out. If those are poor, the Barack Obama may really be rethinking his plan to reject public financing. No predictions here. I will just wait for those numbers to come out.

Flip Flops McCain Vs. Obama

The punditry, in my opinion, almost always does a terrible job of providing proper context to its viewers of what a flip flop actually means in any meaningful sense. In other words, all flip flops are NOT created equal.

There is absolutely no way a politician with any sort of a political career will ever keep each and every single one of their positions exactly the same at all times. Furthermore, I would be very distrustful of one that did. Politicians change their positions for any number of reasons and craven political opportunism is only one of them. Sometimes, the facts or the climate changes. Sometimes a politician is in a different role. Being mayor of New York is different than being President and thus the same person would see the world differently from those two perspectives. Sometimes being presented with new evidence changes a perspective. Sometimes, of course, a politician merely sees a political opportunity and adjusts their position for no better reason than craven ambition.

Unfortunately, to know which motivation a politician has we would have to read minds and thus we are never really sure what motivates a flip flop. The big political evil of craven flip flops is that it reveals a politician with no core and one willing to do or say anything merely to advance their own agenda. Furthermore, craven flip flops reveal a politician with absolutely no courage. Once the political winds swing so will their positions. Craven flip flops reveal the worst and most cynical in politics.

This brings us to the simultaneous flip flops of the two Presidential candidates. Nothing is more annoying to me at least than a Democrat defending Obama flip flops by pointing to McCain flip flops. Bill O'Reilly is fond of saying that you can't excuse bad behavior by pointing to other bad behavior. This is an example. Furthermore, McCain has a thirty year plus record and with it a political core. Furthermore, we have rarely had a politician with more courage than McCain.

Thus, let's examine the recent flip flops of each and see if they are equal.

McCain

1)Bush Tax cuts.

This is a favorite so called flip flop that many Democrats point to. First, when McCain opposed the Bush tax cuts that was itself a flip flop. McCain has long been a proponent of tax cuts. His position in 2003 was the unusual one. Now, five years later, McCain wants to make those tax cuts permanent. Now, the Democrats can call this a craven attempt to pander, but are they really saying that in five years the only thing that has changed is political expediency? Here is McCain on the Senate floor explaining his opposition to the Bush tax cuts in 2003.



For the most part, his opposition had to do with timing and more than that with a lack of spending cuts. McCain wasn't opposed to the concept of tax cuts. McCain has certainly never been in favor of tax increases. Furthermore, any first level econ class can tell you that you never raise taxes when the economy is weakening.

As such, the Democrats can pretend as though McCain's reversal on the Bush tax cuts is nothing more than craven opportunism but in reality there are many more possible reasons.

2) Off shore drilling

This McCain reversal was sudden and it was unexpected, and thus it lends credence to political opportunism.

Beyond mere opportunism though, we are also facing $4 a gallon gasoline prices. It is also reasonable to conclude that an environmentalist will adjust their position when the country is on the brink of economic crisis.

Thus, we have room to conclude either craven opportunism and sound political adjustment.

3) Torture

On this issue, I really see nothing beyond craven political opportunism. While I agree with McCain's current position on torture, I could certainly respect how he came to his previous conclusion. It is certainly possible that he has become privy to new intelligence that makes him conclude that enhanced interrogations do work, however no amount of intelligence could be as relevant as first hand experience. If he believed that his own experiences lead him to conclude that enhanced interrogations don't work then that is what he should have stuck with.

4) FISA and Warrantless Wiretapping

On this issue, there also only appears to be craven political opportunism. It appears that McCain saw an opening to be tough on national security and wanted two more issues to bang against the head of Barack Obama.

5)Immigration.

This is another favorite flip flop of Democrats. That's because most supported his original position. Democrats wonder aloud about where the maverick with the comprehensive plan went. Well, isn't the definition of insanity doing the same thing over and over and expecting a different result. Comprehensive reform failed and miserably. It nearly cost him his nomination. Is it really surprising that he has since taken on a different position? Do the Democrats really expect him to change nothing following an otherworldly defeat.

If a football team gets crushed and the quarterback is benched, is the coach also a flip flopper?
Barack Obama

1) Free Trade

Never in the history of flip flops has their been one so craven and opportunistic as the one perpetrated by Barack Obama on free trade. Throughout the primaries Obama tried to use this as a wedge issue in places like Iowa, Pennsylvania and Ohio where Democrats furiously oppose free trade. In fact, he tried to blunt Hillary using Bill's record by pointing out Bill's support for NAFTA throughout the primary.

Suddenly, now that the primary is over, Barack Obama is saying that his previous unambiguous opposition to free trade was nothing more than "inartful" statements in the heat of the campaign.

No one should be surprise, that's exactly what his advisor Austen Goolsby allegedly told the Canadians during the primary...

Goolsbee told the Canadian government his anti-NAFTA rhetoric "should be viewed as more about political positioning than a clear articulation of policy plans."

Obnama of course denied this conclusion at the time and continued his protectionist rhetoric. Now, suddenly, like a magician, Barack Obama has taken on a more balanced approach toward free trade in time for the general election. This is craven political opportunism of the worst kind.

2) FISA

Obama responded to McCain's craven political opportunism with craven political opportunism of his own. Obama was so virulently against the FISA bill in its current form that he proclaimed he would lead a filibuster if it was attempted to be passed with retroactive immunity. That was during the primary when his audience was largely liberal activists that held the same position. Now that his audience is largely independents much more sympathetic to tough national security measures he backs away from that position.

3) The 2nd Amendment

This flip flop is so outrageously obscene because it spans time and place and furthermore he has flip flopped so often that he has taken nearly every position you can on the issue. In 1996, he answered a questionnaire from a liberal group with positions that bordered on supporting a total repeal of the amendment. Obama has since denied that those were his views even though his handwriting was on the questionnaire and the group said they did an interview with him following the questionnaire in which he confirmed his answers.

He has since said that both the second amendment is an individual's right to keep and bear firearms and that the D.C.'s total ban on handguns is proper. Furthermore, after the Heller decision he said he agreed with the court even though the overturned the very D.C. handgun ban he has said he supports.

Furthermore, he says that he would appoint judges like Ginsberg, Souter, and Stevens and all three dissented in the decision he says he supports. In other words, Barack Obama's position on the second amendment is whatever he thinks is politically expedient at any given time. Craven political opportunism doesn't even begin to describe what Barack Obama has done with this issue.

4) Public Financing

Once again we have a craven flip flop of political opportunism. During the primary Obama was all for being a part of public financing system. At the time, two things were happening. First, he hadn't yet realized his fundraising prowess. Second, he was developing a theme of being against the special interests. Since he now believes he could raise up to $500 million he no longer believes in public financing which would cap him much lower. Furthermore, his explanation that most of his money will be raised in small amounts is simply a distortion. While there is no doubt that he has exhibited prowess in raising obscene amounts of money in small portions ($50 and less), he has also exhibited prowess in raising money in bundled portions. This idea that he is going to be financed exclusively by small donations is a simple lie. The reality is that plenty of his fundraising will come from special interests.

In other words, he is everything he claims is wrong with the system.

5) Iran, Iraq, Jerusalem, Foreign Policy and more

On all of these matters, Barack Obama has shown a propensity for flip flops and corrections simply because his position is difficult to understand. It isn't that he changes it for political expediency but that he doesn't really understand his own position.

He told AIPAC that Jerusalem wouldn't be split up and in the hands of Israel only to find out that this is just simply improper. He called Iran a dangerous threat and a tiny country on subsequent days. He has said that he would negotiate with our enemies with no preconditions, some preconditions, and many pre conditions all at different times.

He has said that he wants to get out of Iraq by March 2008, March 2009, and 16 months after he is inaugurated, and then, he has said that he would follow the directions of the generals. Of course, he has not explained what he would do if the generals didn't want to follow his timeline.

On all these issues, you see a political novice that really doesn't know what he wants to do. More dangerous than a political opportunist is a clueless rookie figuring it out as he goes along, especially during war time.

So, on the whole, we have two politicians that at times succombed to nothing more than craven political opportunism. Frankly, I don't know many that haven't done the same at one time or another. No one should look for a pure politician or you will wind up like Diogenes who was looking for an honest man. Given McCain's principled and politically courageous backing of the surge, when no one else would, he can be excused one or two politically expedient positions. Furthermore, his political courage was otherworldly when he alligned with Ted Kennedy during the Republican primary. Finally, while I won't in anyway defend his craven political opportunism on FISA and torture, is there any doubt that on the whole he plans on pursuing an aggressive GWOT policy?

Still, there are those that at times succomb to political opportunism at the expense of principle, and then there is Barack Obama. It is one thing to be John McCain and see a thirty five year record. It is another to be Barack Obama and have no record. Furthemore, the sheer magnitude, scope, and breadth of Obama's flip flops far surpass anything McCain has exhibited. Barack Obama gained favor of the press and the Democratic establishment by running to Hillary's left during the primaries. Now, he is running even faster to the middle so that he won't be defined as too liberal. Furthermore, there is no issue, position, or principle he won't sell or change. Obama's flip flops range on just about any issue or policy you can find. Given that his record is bare, there are worries about core and courage that we don't have with McCain.

FISA Deal Near?

Several media sources most prominently the Wall Street Journal are reporting that a deal on FISA is very near. A couple months back I predicted that the Democrats would finally blink in this game of political chicken and give in to the President. The reason I predicted this is because the Democrats have stared the President down a number of times over the last two years and they are the ones to blink every single time. This appears to be what has happened now. The main sticking point was over telecom immunity. The President wanted blanket immunity for the telecom companies. The Democrats wanted to keep the option open for suing and pursuing criminal charges against telecom companies that were deemed to have gone out of bounds.

The compromise appears to be in the language of conditional immunity. Here is how the language is spelled out.

The agreement would also pave the way for [telecom] companies ... to shed the nearly 40 lawsuits they face for allegedly participating in a prior version of the NSA program... To win immunity, they would have to pass review from a U.S. District Court.

...Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed.

Of course, telecom companies are always approached by the executive branch and frankly any telecom company that decides on its own to run surveillance should be prosecuted. As such, this is not much of a compromise. The Democrats caved in. In the meantime, they spent several months blocking this vital piece of national security legislation. After all their grandstanding, they ultimately arrived in the exact same place the President has always been in. Thus, one wonders why they needed to grandstand then.

Liberal Misconceptions, Lies, and Misunderstandings on GITMO, Warrantless Wiretapping, Habeas Corpus, and Other Such Things

With the recent ruling by the Supreme Court, that GITMO detainees deserve rights of habeas corpus, the same battle lines for debate have been drawn. I have battled liberals on many of these issues for several years, ever since the warrant less wiretapping program was illegally revealed, and I have found that they constantly stick to the same misconceptions. I think it is time that each and everyone of them be debunked.

1)Warrant less wiretapping and illegal detentions are aversions to the Constitution and the President is acting like a king.

This is nonsense. The President is NOT acting like a king but rather like the Commander in Chief, as the Constitution instructs him to be. In fact, the misconception that liberals make is that we should apply criminal laws and statutes to enemies in war. Terrorists are NOT criminals but rather enemy combatants. They have committed no crime but rather an act of war. In fact, many times they haven't even committed that act of war yet but are still in planning stages. Applying criminal procedures, like warrants and habeas corpus, to such a situation is not only ridiculous but dangerous. If there was a murder committed, then of course, before an arrest is made there needs to be enough evidence. Of course, before a phone is tapped or a home is search, there needs to be a warrant signed by a judge. That's because that is a CRIME.

If someone is planning on blowing up a big building in order to weaken a nation that is an act of war. That individual is no longer given the protection of a criminal. That's because they aren't a criminal. They are an enemy combatant committed to waging war against our nation.

In fact, if the current President needs a warrant to listen into Al Qaeda, then he will be the first President to need a warrant before spying on the enemy. Does anyone think that Lincoln needed a warrant before spying on the Confederacy? Did FDR get a warrant before spying on the Nazis? Did LBJ get one before spying on the VC?

Did any of these men put any of the enemy we captured on trial in civilian courts? Were any of the enemy given habeas corpus protection? Lincoln suspended habeas corpus for our own citizens for heaven's sake.

2)What the President is doing is an unprecedented power grab.

Of course, this doesn't hold up to any reading of history. In fact, the current President has usurped far less power during war time. FDR set up an office of censorship. Lincoln suspended habeas corpus against American citizens. He tried the Confederacy in military tribunals. Wilson was so paranoid about war opponents in the U.S. that he set up the creel commission to, among other things, spy and open up mail of those that he deemed war opponents. LBJ created a draft during the Vietnam War. All of these are significantly bigger power grabs than spying on the enemy without a warrant or not giving the enemy habeas corpus protections.

3)The President can only use war powers when war is declared.

If you can get a liberal to admit that the President was using war powers and thus not subject to criminal statutes then the next logical argument for them is that the President has no war powers since war wasn't declared. First, this is nonsense because the Authorization to Use Military Force against Al Qaeda was declared. This is no different than a declaration of war and the President received this overwhelmingly in the aftermath of 9/11. Furthermore, the President does NOT need a declaration of war to use war powers. The President is always the Commander in Chief. He doesn't just become Commander in Chief when war is declared. That's why LBJ instituted the draft during the Vietnam War, which was technically a "police action". Bill Clinton sent troops into the Balkans with no declaration of war. He sent bombers intent on dropping bombs on Iraq with no declaration of war. What powers exactly were all those Presidents using if not the powers of Commander in Chief?

It seems to liberals sending men and women to die in armed conflict is fine without an actual declaration of war but if you dare and spy on the enemy without a warrant then you've stepped over the line.

4) The President will be allowed to abuse the system and arrest and spy on anyone and no one will know.

First, the President doesn't need any extra powers to abuse the power he currently has. Second, while common folks will certainly never know what the President has done, the Constitution has long accounted for classified programs. It isn't as though the President is the first to run classified programs. In fact, Congress still needs to exercise its power of oversight and there are plenty of committees with security clearance. While the general public may never know about any specific cases related to warrant less wiretaps, GITMO, or any other classified programs, the Congress had better. In fact, it is the Congress' job to make sure than none of these programs are abused, and of course, any abuse is immediate grounds for impeachment.

5)Since this war is endless, the power you are giving the President is endless as well.

This of course totally misunderstands the powers the President has and furthermore the checks and balances that our system has. I am not giving this power to the President. The Constitution is giving the President this power. The President always has the right to spy on the enemy during war time. The President doesn't need a judge's permission to do this. The President always has the power to detain the enemy during a conflict and it is always up to the military to deal with the enemy. Furthermore, it is always up to the Congress to make sure there is enough oversight to make sure none of these powers are abused.

6) What Bush is doing to the terrorists at GITMO violates the Geneva Convention.

This misreads the depth with which the Geneva Conventions were written. The Geneva conventions weren't meant merely to define the proper treatment of the enemy during armed conflict. It also defined the proper enemy. That way those waging illegal wars could also be identified. In the Geneva Convention, soldiers were defined as those in uniforms battling for a country. Furthermore, soldiers are on a battlefield battling other soldiers. Terrorists fit neither of those roles and thus are not soldiers. They don't wear a uniform. They don't fight for a country, and they target civilians not other soldiers. They are waging an illegal war and thus deserve no Geneva Conventions protections.

7) GITMO is a scourge of civil rights violations and it is a black eye on America.

That maybe the perception however most of those condemning GITMO have no better idea for where to house these terrorists. Why don't we send them all to a federal facility in Massachusetts if John Kerry is so upset? Kerry would raise quite a stink if any of these folks ever got anywhere near his state. In fact, most of the nations that are condemning the U.S. for GITMO want nothing to do with any of the folks that call their countries home. Canada is among the first to condemn GITMO, but says no thanks to taking any Canadians from GITMO from us. Many of these folks call Middle Eastern nations like Syria, Saudi Arabia, and Egypt home. While the UN and Human Rights Watch condemn GITMO they say nothing of the torture they would receive if they were ever sent home. GITMO may not be perfect but if someone is going to criticize they had better come up with a better alternative.

8) Water boarding and other tough interrogation techniques are torture. The U.S. does not torture and torture doesn't work.

Whether or not it is torture is an open question. Whether or not they work is not. It works. Khalid Sheik Muhammad and Abu Zubaydah were each broken down by water boarding. The information we received as a result is invaluable. These terrorists are waging an illegal war. They are targeting civilians. They wear no uniforms, and if they have their way, they will blow up a nuclear bomb in the U.S. Liberals can spew all theory they want. They can quote Ben Franklin

those that trade liberty for security deserve neither

if they want as well, however they all live in the world of theory. In the real world, there are folks right now plotting to kill mass civilians. If any of them are captured, our government has the responsibility to extract as much information as possible. I am not an interrogator and neither is any of the idealistic liberals to cry that it doesn't work. I will trust the professionals. I will give them whatever room they need to do their job.

Detainees to Get Habeas Rights

According to the SCOTUS Blog, the Supreme Court ruled just recently that foreign nationals held at Gitmo are entitled to rights of habeas corpus.

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.

For those not familiar with Latin or jduicial terminology, here is the definition of habeas corpus.

is the name of a legal action, or writ, through which a person can seek relief
from unlawful detention of themselves or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual
freedom against arbitrary state action.

Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

In simple terms, habeas corpus prevents an individual from being detained without being charged. It is one of the bedrocks of our CRIMINAL justice system.



My problem with this perspective as well as that on FISA is that applying criminal laws and philosophies to war is nonsensical. Let's take the case of Jose Padilla. He was stopped at O'Hare Airport and he is suspected of trying to blow up a so called "dirty bomb" within the U.S. Now, do we really want the government to only detain someone like Padilla only after they have enough to criminally charge him?

Do we really want to make the standards for all terrorists a legal one? This is what I have never understood. During World War II, the U.S. apprehended six German spies in New York. Should we have afforded them criminal rights? In my opinion, that is absolute nonsense because these spies were NOT committing crimes. They were committing acts of war. The same goes for Padilla and everyone else being held at Gitmo. They don't deserve the legal protections afforded to criminals because they are NOT criminals. They are enemy combatants attempting to commit acts of war.

The two are wholly different. In a criminal investigation, a crime has already been committed. In this case, an act of war is about to be committed. If we wait until there is enough evidence to detain someone like Padilla, the evidence may very well be the "dirty bomb" he is trying to set off. Never before in the history of U.S. warfare has the enemy been afforded the rights of criminals in our judicial system. Yet, that's exactly what some want now. How can we possible prosecute the war on terror effectively if our enemy is treated as criminals rather than enemies in war? Yet, that's exactly what this ruling has done.

More coverage from Michelle Malkin and Red State and Daily Kos and Huffington Post on the left.

FISA Deal in Works?

So says the Politico.

Congressional staffers from both parties met with administration officials Monday to discuss controversial electronic surveillance legislation, confirmed an aide to House Majority Leader Steny H. Hoyer (D-Md.), offering a ray of hope for the long-stalled bill.

For the first time since February, representatives from both parties, from both sides of the Capitol and from the administration gathered to discuss the stalled bill, according to the aide. The meeting revived hopes for an update of the Foreign Intelligence Surveillance Act.

It stalled in February over the question of whether telecommunications companies that aided the government with surveillance after the Sept. 11 terrorist attacks should be granted immunity from prosecution. The companies are facing almost 40 lawsuits over their role in the program, primarily from civil liberties organizations.

Several weeks ago, I said the Democrats would blink and give in to the President's demands. Whether that is happening or not is unclear, however it is clear, to me at least, that we need the tools of warrantless wiretapping for the GWOT. Even if the Dems give in and give the President what he wants, I won't gloat. All that really matters is that a deal is done and warrantless wiretaps continue.

The Dem Leadership and the Definition of Insanity

You know the old saying

the definition of insanity is doing the same thing over and over and expecting a different result

The Dem leadership has faced off with the President on multiple occasions in a political game of chicken and every single time the ones that have blinked have been them. Back in May of last year, the lost a stare down contest over timetables for withdrawal. They ultimately blinked and passed an Iraq War spending bill that had no timetable for withdrawal. (they subsequently tried and failed to pass a timetable so many times that I lost track of exactly how many times they tried and failed) In November, the Dems blinked on SCHIP and again passed the SCHIP plan that was favored by the Reps and the President. This was after a long battle and even after they used a child to address SCHIP during one of their responses to the President's weekly radio address. Why just this past August, the Dems again blinked and passed an extension on warrantless wiretapping for six months.

So, here we are again. We are now six months later and the Dems are in another game of political chicken with the President. This time it is over another extension of warrantless wiretapping. The Dem leadership passed another version of warrantless wiretapping WITHOUT a retroactive immunity for the phone companies.

The House on Friday approved a Democratic bill that would set rules for the government's eavesdropping on phone calls and e-mails inside the United States.

The bill, approved as lawmakers departed for a two-week break, faces a veto threat from President Bush. The margin of House approval was 213-197, largely along party lines.Because of the promised veto, "this vote has no impact at all," said Republican Whip Rep. Roy Blunt of Missouri.

The president's main objection is that the bill does not protect from lawsuits the telecommunications companies that allowed the government to eavesdrop on their customers without a court's permission after the Sept. 11, 2001, terrorist attacks.

This is the second time the Dem's have passed a version of legislation over warrantless wiretapping in the last month. The last one was nearly identical to this one and that one was vetoed and that veto wasn't overridden. This current battle is much like their previous battles over other issues, and even like their previous battle in August. Every single time the Dems have faced off with the President in a political game of chicken it is the Dems that blink. The Dems face the extra problem of being on the wrong side of the public. (on this issue that is. Despite having public backing for timetables and for SCHIP they still blinked) Their base is not impressed with a good fight that they then lose. The public is not impressed with stalling tactics that wind up getting us to the same place only months later. I have seen this movie before and I know how it ends, and I am frankly tired of the Democrats constantly doing a sequel even though we all know how it will end.

Putting Warrantless Wiretapping into Historical Perspective

Warrantless wiretapping has become a controversial issue. It has become a cause celebre for both partisans on the right and on the left. Much has been made of the controversial program. Here is how some of the language against the program goes.

Think about it. Warrantless wiring taping sounds as if what you did was without a warrant, which would make it illegal. Warrant-free just means you were unfettered by warrants. That sounds so much nicer, doesn’t it? Like sugar-free is superior to sugarless, or law-free is better than illegal.

And eavesdropping is what Lucy did to Ethel when she was trying to find out what
Ricky was getting for her birthday. Wiring tapping…well, that makes makes you think of Watergate.

and...

This is an outrage. Bush has provided no evidence that his illegal domesticspying scheme has made Americans safer against terrorism, and congressional Democrats appear likely to cave in to his demands. Worse yet, I have not been able to find any details of this legislation. Congress should not rush to pass any legislation amending FISA without allowing citizens to review and comment on it.

If you believe some of the most fervent opponents of the program, this is an unprecedented assault on the Constitution. Is it though?

Let's see how prior Presidents acted during war and other conflicts.

Abraham Lincoln suspended habeas corpus three times during the Civil War. In other words, by Presidential decree, Lincoln began to arrest war opponents (the target of his suspension) without charging them with any crimes. While a judge eventually did rule his act unconstitutional, this was only done after the war ended. Beyond that, he jailed dissidents and he even shut down newspapers. Furthermore, he tried Confederate soldiers in military tribunals rather than regular courts.

During WWI, Woodrow Wilson set up something known as the Creel Commission. Here are some of their duties...

These groups spied, tapped telephones, and opened mail in an effort to ferret out "spies and traitors." The targets of these groups was anyone who called for peace, questioned the Allies' progress, or criticized the government's policies. They were particularly hard on German Americans, some of whom lost their jobs, and were publicly humiliated by being forced to kiss the American flag, recite the Pledge of
Allegiance, or buy war bonds.

During WWII, FDR took all sorts of drastic steps. For instance, he created an office of censorship which filtered the media during WWII.

All Americans abhor censorship, just as they abhor war. But the experience of this and of all other Nations has demonstrated that some degree of censorship is essential in wartime, and we are at war.

The important thing now is that such forms of censorship as are necessary shall be administered effectively and in harmony with the best interests of our free institutions.

It is necessary to the national security that military information which might be of aid to the enemy be scrupulously withheld at the source.

It is necessary that a watch be set upon our borders, so that no such information may reach the enemy, inadvertently or otherwise, through the medium of the mails, radio, or cable transmission, or by any other means.

It is necessary that prohibitions against the domestic publication of some types of information, contained in long-existing statutes, be rigidly enforced.

Finally, the Government has called upon a patriotic press and radio to abstain voluntarily from the dissemination of detailed information of certain kinds, such as reports of the movements of vessels and troops. The response has indicated a universal desire to cooperate.

More famously, he set up internment camps which isolated Japanese Americans from the rest of the population.

February 19 will be forever known as a “day of infamy” for Japanese Americans. On this date in 1942, President Franklin Roosevelt signed Executive Order 9066, the innocuously titled “Executive Order Authorizing The Secretary of War To Prescribe Military Areas.” Yet, there was nothing harmless about this initiative. Although it did not specifically mention “Japanese” or “Japanese Americans,” the order’s intent was clear. Executive Order 9066 authorized the federal government to incarcerate nearly 120,000 Japanese Americans--without due process--in internment camps throughout World War II.

Finally, during the "police action" known as the Vietnam War, LBJ ordered a draft, forcing men of fighting age into war.

All of these Presidents, used extraordinary measures by the power granted to them as Commander in Chief by the U.S. Constitution. I have had many an arguement with opponents of warrantless wiretapping in which I have used these historical references. Each and every time, the response has been that each of these other Presidents also went over the line. It is a silly and desperate view that every President stepped over the line during war. In fact, they did not. During wartime, the most important thing is victory. War is an unprecendented and extraordinary situation, and it requires action not warranted during peace time. Each of these Presidents understood that and they did what they felt was necessary to insure victory in their respective wars. Given their own extraordinary use of war powers, I think the debate on warrantless wiretapping takes on a whole new context.

House to Revisit FISA After Break?

The political miscalculation that the Democrats hav made regarding warrantless wiretapping will rival that of Rudy's fifty state strategy in my opinion. By leaving for break without extending the law, they have left themselves wide open to further criticism that they can't be trusted on national security.

Now comes this story from the Weekly Standard. The Dems are reportedly ready to act however they haven't reconciled yet with the Senate version. The House is insistent on not extending liability protection for compliant phone companies. This is an advertisement campaign waiting to happen.

Liberals in the House are unwilling to extend liability protection to telecommunications companies that facilitated surveillance on suspected terrorists operating abroad. Quin Hillyer looks at the lawsuits that House Democrats are insisting go forward:

It is unclear what the Dems think they will accomplish, however they are quickly driving for a resolution that would allow this bill to be passed in roughly the form the President wants, only it will be passed after a recess. By doing this, the Dems will be painted as not serious about national security. Keep in mind that the temporary FISA bill expired. If they wait until after the recess to pass largely the exact same bill, they will rightly be painted as totally unserious about national security. The irony is that the options get worse from there. They can let this drag on and turn it into a front burner issue and really be painted as unserious. They can refuse to pass it at all and turn this program into a critical election issue. (Keep in mind that Obama and McCain each take opposing views of this) That is pretty much it for the Dems, worse, even worse, and worst.

Frankly, their options only get worse from there. They could drag this out and allow this to become a front burner issue. This will make it even easier to paint the party as unserious about national security. They can attempt to pass this bill without protection for phone companies though that would never make it out of the Senate.

Their options are limited to bad and worse. That's because they played to their looney base that hates warrantless wiretapping and anything, frankly, resembling aggressive GWOT prosecution. By doing so, they left themselves wide open to be painted as weak on national security, and so far they are doing nothing to change that perception.

Nicholas Sarkozy and The Republicans

If the Republicans want a guide on how they should campaign in 2008, they ought to look at the campaign of Nicholas Sarkozy in France for inspiration. In 2007, Sarkozy painted himself as the agent of change and his opponent, Segolene Royal, as the agent of the establishment and rode that to victory. The irony is that it was Sarkozy that was a part of the unpopular government of Jacques Chirac and Royal that was a member of the opposition government. He did this by identifying those things that the French people found objectionable about his own government's rule and then proposing substantive reforms to it. Rather than running away from or needlessly defending the failed policies, he took them all head on and painted himself, not his opponent, as the agent of change.

While no comparison is exact, there is plenty to learn from Sarkozy's masterful campaign. I think the Republicans, lead by McCain, need to focus on fiyr core issues and turn themselves into the agent and turn the Democrats into the party of the same failed policies.

1)Smaller government and fiscally responsibility. This used to be hallmark issues for the Republicans until power got to their collective heads, and they used spending as some sort of bribing mechanism to get votes. McCain has been out front on this issue and needs to lead a new Republican revolution on spending and smaller government.

The Democrats, on the other hand, have been the agent's of bigger government. They all want universal health care, government lead stimulus, and more interference in the mortgage market. All of these policies lead to more bureaucracy, more waste, and more corruption, and they must be labeled as such.

The contrast must be created. One party is ready to lead toward smaller more efficient government, and the other wants to expand government even more.

2)Victory in Iraq and generally aggressive foreign policy.

It is high time that Republicans stop running away from Iraq as an issue and turn it into albatross on the Democrats not themselves. We have a successful policy. That policy was created and implemented by General David Petraeus. One party wants to give Petraeus the time he needs to fully implement this policy so that it leads to victory, and the other wants to pull troops out as soon as they can. McCain is the perfect voice for victory in Iraq. He has the credibility, and he was the first to call out the failed Rumsfeld strategy. Obama is a foreign policy lightweight who is proposing a radical change of an effective policy. This is not something to run away from but to challenge and bring to the forefront as much as possible.

Secondly, the Democrats are for re tooling the Patriot Act, eliminating warrantless wiretapping, eliminating Gitmo, and moving most terrorists into federal court. The Republicans want aggressive sanctions against countries like Iraq, whereas the Democrats want to meet unconditionally with their leaders. The leading Presidential candidate has already said so, and the Speaker has already met with one. The Republicans must make this a choice between the party that wants to keep us safe and the party that wants to protect the rights of terrorists and respect the wishes and concerns of our enemy. It is easy to frame the issue as such and the Democrats inaction on warrantless wiretapping only adds to this perception.

3)Strict Constructionist Judges

I have said it before and I will say it again. Barack Obama is to the left of Planned Parenthood on abortion. If a baby is aborted and that abortion fails and the baby survives, Obama is fine with killing the baby anyway, infanticide. The Dems have already hitched their wagons to partial birth abortion. All of these radical social stances along with things like taking under God out of the pledge, gay marriage, and other issues are created by activist judges. The Republicans must stand firmly behind strict constructionist judges and make that another campaign issue.

4) Attack global warming, alternative energy, and other eco friendly issues through aggressive tax cuts. If the Republicans get behind Newt Gingrich's green conservatism, they will offer an alternative for dealing with these issues. These problems come down to one basic debate: do you believe that this is government's problem to solve or do you want to empower the private sector with the tools to solve it? Rather than dismissing these issues as trivial, over blown and non existent, the Republicans must firmly stand behind offering free market, small government solutions to them. I propose cutting the capital gains tax to zero on all alternative energy, anti global warming, and other eco friendly sources.

If the Republicans move away from proving whether these things are real or important, and move toward deciding whether you want to expand government or the private sector to deal with them, then I think they will get on the right side of the issues.

The Reps Political Warrantless Wiretapping Strategy

As soon as the House leadership decided not to re new the terrorist surveillance program, I knew that was a foolish political move if not an even more foolish national security move. There is nothing that plays better for the Republicans than this single issue. Nothing plays to their strengths better and simultaneously to the weaknesses of the Dems than this program. Now, the Republicans have lined up their attack and I believe that I am speaking as more than just a partisan when I say that this one will be quite effective.

Newt Gingrich summarized the arguement with this piece.

It's hard to think of an action that has put as many lives at risk as House Speaker Nancy Pelosi's (D.-Calif.) declaration of unilateral disarmament in the War on Terror last week.

By refusing to renew our ability to monitor terrorist communications overseas, Speaker Pelosi has put Americans at risk. She has blinded our counterterrorism capability and shut down America's most sophisticated defenses against the irreconcilable wing of Islam. As of midnight last Saturday, the law governing America's defense is totally inadequate to stop terrorists.

Why? Because the Democratic left believes lining the pockets of trial lawyers is more important than stopping terrorists.

The Dems have to know that their rep on national security is already shaky, and they have to know that protecting the homeland is one of the few areas that the folks still trust the Reps more than them. Why would the House leadership, in such an inexplicable and haphazard way no less, move to table this legislation until after a break? This was nothing short of reckless and self destructive politics on the part of the Democrats. Besides keeping their lunatic fringe happy there was nothing to gain by not moving forward with this legislation.

This is a lose and lose even more proposition for them. Their best case scenario is that the House comes back from break and passes the extension immediately. If they do that, the House leadership will admit playing politics and furthermore admit losing in their game. That is their best case scenario. If they drag this out, this program will become the front burner issue in the election cycle. Obama will have to continue to explain his vote against it, and Hillary will have to explain why she didn't even vote at all. The longer this goes, the more the Reps can paint the Dems as siding with the terrorists not to mention the trial lawyers. The Dems can try and make their theoretical civil liberties arguements if they like. During a war, those sort of arguements will fall on deaf ears.

The Democrats have already left themselves open as weak on national defense during war time. Focusing on civil liberties while evil zealots plot to kill us is misguided in my opinion, however without a doubt a foolish political strategy. If that strategy can further be tied to protecting a hated constituency like the trial lawyers, it will be a disaster for the Democrats.

Supreme Court Throws Out FISA Appeal By the ACLU

The SCOTUS refused to revisit a lawsuit thrown out by the sixth circuit that was filed by the ACLU against the President challenging the validity of FISA.

Among the more significant cases the Court refused to hear was an appeal by
the American Civil Liberties Union seeking to revive its lawsuit —
dismissed by a federal appeals court — challenging the Bush
Administration’s no-warrant program of electronic eavesdropping of global
telephone calls and e-mails when that monitoring reaches inside the
U.S. (ACLU v. National Security Agency, 07-468). A Sixth Circuit
Court majority ruled that the groups and individuals who filed the challenge
could not show that they had been wiretapped unless they had access to
information that was beyond their reach because protected by the government’s
“state secrets privilege.”

The legalisms on this are quite confusing. While the SCOTUS is making warrantless wiretapping constitutional, the program remains in flux because the Congress hasn't passed the proper legislation to make it legal.

The Politics and Psychology of FISA

Last week, I spoke a bit about the policy rationale behind warrantless wiretapping. As a matter of policy, there are interesting and divergent arguements to be made. On the issue of politics though, the outlook is rather clear...this is one of the few big winners the Reps have in 2008. In fact, the Democrats in the House handed the Reps a political gift by failing to pass the legislation authorizing warrantless wiretapping and insulating phone companies from lawsuits.

FISA was passed initially in part in response to the revelation that Martin Luther King and other civil rights leaders had their phones tapped by Presidents in the 1960's. This is important to know because in politics one almost finds themselves in the majority when they defend sympathetic victims and attack those easy to demonize. I have already pointed out how effectively some politicians have accomplished this in the ongoing debate in the aftermath of the mortgage crisis...where they side with the borowers and attack folks like me, the mortgage brokers. The problem for the Democrats now is that there are no sympathetic victims for them to side with. By blocking this legislation, they can, and have, be effectively painted as siding with the terrorists themselves. While they speak of theoretical civil rights, there are no actual victims of any sort of illegal warrantless wiretaps. All the supposed victims are theoretical. There are, on the other, hand real victims of real terrorist attacks, and the rest of us want no more.

The other problem for the Dems is the manner in which this issue has been approached. They waited until it nearly expired in the summer only to blink and pass a six month extension in the last minute. Now, the Senate has passed it overwhelmingly (68-29) whereas the House has sat on it. Their high principles don't match their actions. While they can act as though they are standing up for the highest principles, they are acting much more like cowardly politicians.

Because the details of this program are classified, no one will know how exactly it is used and just how vital it is (or not so vital depending on your perspective). That is left up to perception. The President will continue to hammer home that it is vital and he will send out folks like Mike McConnell, CIA chief, to stress its vitality. The Democrats will send out folks like Steny Hoyer to claim the President is fear mongering. Unfortunately, the Democrats already start at a disadvantage. They carry the perception of being soft on national security. The CIA has taken a hit to its reputation recently, but in a battle of perception, I will take the CIA on issues of national security over Steny Hoyer.

The polls on the subject are ultimately inconclusive and all depend on how the question is asked. Americans are overwhelmingly for listening to terrorists with or without warrants, however against Americans being listened to without warrants. This brings me back to my original point: the terrorists are real whereas the Americans are ultimately, for now at least, hypothetical. Without any documented cases of abuse, this issue will ultimately work for the Reps because it will be seen as a tool against terrorists. This is just one of several issues where the Democrats leave themselves open to serious vulnerabilities by playing to their base. Whatever the polling of Americans, the polling among the Dem's base is clear: they hate it. By playing to it though, they leave themselves wide open to attacks on national security grounds.

McCain has already taken the rhetorical lead in this debate and he will likely try and make national security and the GWOT key issues in the campaign. In my opinion, the Dems are in trouble if this campaign becomes about national security, the GWOT, and even Iraq. They will win if they focus on domestic issues like the economy, health care, and others like those. Had the House merely allowed the passage of this law to go through, it would have put it to the back burner where it would have been best for the Dems. Instead, it will become a front burner issue for at least two weeks. Clinton didn't even vote when the measure came up in the Senate and Obama voted against it.

Clinton's non vote will only go to perpetuate her image as a waffler and politician who doesn't want to take a firm position. Obama, on the other hand, will actually give policy. Obama's strength is not specific policy, in my opinion. (His ridiculous jobs plan is the most recent example of what happens when he actually comes up with something specific) Obama has not only voted against the measure, but is on record as saying he would end the program altogether. As long as Obama is talking about hope and togetherness he perpetuates the image of the hope of all. Once he talks about specific policies, he perpetuates the image of tax and spend liberal (like with his jobs plan) on domestic issues, radical liberal on social policies (like being to the left of Planned Parenthood on abortion), and dovish on national security like this issue.

Either way, politically, in the long run, the longer this goes the worse it is for the Dems and the better it is for the Reps.

Revisiting FISA

Soon, I believe we will have a political battle over the President's ability to spy on purported Al Qaeda without first receiving a warrant. The core of the issue is that the President doesn't give any consideration of the purported Al Qaeda is an American citizen and if they are in America when the call, email, or other communication is made. To me this is not only a cut and dry policy issue but also a cut and dry poltical issue. I won't get into the politics of it because anyone can look at any polls, but suffice to say, this is one of the few issues that is a huge winner for Republicans. The Dem's base is doing them a huge disservice on this because overwhelmingly the folks just want to be protected.

As for policy, that is a more interesting question. On the surface, one would think that the President is acting outside his power. After all, it appears that FISA was created exactly to deal with this. By spying on AQ without a warrant the President appears to be clearly violating the law. That said, upon closer examination I believe that there is really no question but that the President is not only well within his rights, but frankly, that it would be crazy for him to do otherwise.

The first reason that the President is well within his rights comes right from the Constitution. The President and the President alone is the Commander in Chief. Thus, he and he alone directs all of our armed forces. Spying on the enemy is a crucial part of warfare. To cede that power to a judge is to cede the power of the Commander in Chief. Naysayers always point to one part of this arguement. They say that while it is all good and well that we spy on AQ, who decides who is AQ and who is the rest of the world. Unfortunately for the rabid anti Bush types, the decision is ultimately left to the Commander in Chief. If the Commander in Chief abuses this power, then of course that must be dealt with. That said, a judge can't cede that power until there has been abuse. FISA is a law that has been around since the 1970's. The President has been the Commander in Chief since the Constitution was created and the Constitution trumps any and all laws.

Frankly, the President's power as Commander in Chief is the only power he needs to spy on any enemy as long as that is part of a military action, however in this case he has even more inherent power. The second part of his power comes from the authorization to use military force against Al Qaeda signed September 18, 2001. Naysayers, again, say this was not a declaration of war. This is of course nonsense. There is no difference between an authorization to use military force and a declaration of war. That is the definition of a distinction without a difference. Whatever differences there may or may not be, they certainly don't affect the President's ability to spy on the enemy. Here is the relevant part of the AUMF.

To authorize the use of United States Armed Forces against those
responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

This specifically gives the President full authority to do use the military in any means necessary to protect the United States against the enemy, Al Qaeda. Spying on the enemy is a critical part of protecting the United States. Again, the President and the President alone is the Commander in Chief. The Congress gave the President broad powers to go after Al Qaeda and then want a do over when he dared to use those same powers liberally. If the President is to aggressively use the military to protect the United States from attack, he certainly must be allowed to spy on the enemy whenever he sees fit, and no judge can override that power. If the framers wanted a judge or a committee to be the Commander in Chief, that is what they would have writtten into the constitution. They didn't. The Commander in Chief needs to be able to make quick and decisive actions and no committee or judge is fit for that. The powers of the Commander in Chief can't be chosen randomly. They are absolute, and when the Congress grants the President sweeping powers to be Commander in Chief, they must understand that he will use them.

Like I said, all the power the President needs comes from the Constitution, however the President also has the power of precedent. Let's look at how other Presidents used their powers as Commander in Chief during war time. First, spying on the enemy during war time is not new. It has gone on since Washington spied on the British. Neither Washington, Lincoln, Wilson, FDR, or LBJ ever went to a judge to get paperwork before they spied on the enemy. Lincoln spied on the Confederates throughout the war. He never got a warrant before hand.

Let's look at what Woodrow Wilson did during WWI. He set up what was known as the Creel Commission, and here is what they did.

These groups spied, tapped telephones, and opened mail in an effort to ferret out "spies and traitors." The targets of these groups was anyone who called for peace, questioned the Allies' progress, or criticized the government's policies. They were particularly hard on German Americans, some of whom lost their jobs, and were publicly humiliated by being forced to kiss the American flag, recite the Pledge of
Allegiance, or buy war bonds.

Opponents of warrantless wiretaps always point out that it is unprecedented to spy on Americans during war time. Of course, first, what warrantless wiretapping doesn't do is immunize an American from being wiretapped if that American is working from the enemy. Second, the Creel Commission shows that spying on Americans during war time isn't unprecedented.

Other Presidents also took drastic steps during war time. FDR set up an office of censorship. During peace time this is an obvious and obscene violation of the Constitution, but during war time it was a necessary step to win the war. Lincoln went so far as to suspend Habeas Corpus and threw war opponents in jail without charging them. Again, during peace time, this would likely be an impeachable offense, but it was yet another necessary measure to win the war. LBJ instituted the draft and forced able bodied men to go into military service. Vietnam was never a declared war, but a police action. Bush is not the first President to take extraordinary steps to fight a war, and in fact, almost all Presidents use their powers liberally during war time. To make it seem as though the current President's steps to spy on the enemy with no approval from anyone disregards the Constitution, the AUMF and the precedent of those that held the office prior to him.