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But Conservatives LOVE Free Speech

…don’t they? Well, they love it when it applies to Danish newspapers publishing anti-Muslim cartoons with the explicit purpose of mocking Islam, but they aren’t such big fans when it comes to, say, verbally criticizing our elected administration. Because that’s treason.

It is now considered bad form to criticize those who commit seditious acts against the United States. Challenging the patriotism of a traitor draws more ire than engaging in treasonable activities. Calling out those who undermine our nation creates more of a backlash than actually undermining our nation.

Ben cites a few quotes from Al Gore, John Kerry and Jim McDermott as examples of “sedition.” Now, you’d think that a Harvard law student would have a dictionary handy, and could look up the word “sedition” — because a pretty key component involves an intent to incite “rebellion agaisnt the authority of a state.” That isn’t what any of these three men did — they criticized U.S. policy, which, given the existence of the First Amendment, is a pretty fair thing for them to do.

At some point, opposition must be considered disloyal. At some point, the American people must say “enough.” At some point, Republicans in Congress must stop delicately tiptoeing with regard to sedition and must pass legislation to prosecute such sedition.


Things like this should frighten all of us. Here we have a person arguing, in all seriousness, that we should suspend our basic First Amendment rights, and Republicans should take measures to criminally prosecute anyone who speaks out against the war or the government. These are not American values, and this should deeply offend people at all degrees of the political spectrum.

“Freedom of speech!” the American Civil Liberties Union will protest. Before we buy into the slogan, we must remember our history. President Abraham Lincoln suspended the writ of habeas corpus and allowed governmental officials to arrest Rep. Clement Vallandigham after Vallandigham called the Civil War “cruel” and “wicked,” shut down hundreds of opposition newspapers, and had members of the Maryland legislature placed in prison to prevent Maryland’s secession. The Union won the Civil War.

And historians have certainly been critical of that aspect of Lincoln’s presidency. While I’m definitely not a proponent of habeas suspension, Ben — as a frigging Harvard Law student — should know that suspending the writ of habeas corpus is different from Congress passing a law allowing for the prosecution of people who speak out against the administration.

Under the Espionage Act of 1917, opponents of World War I were routinely prosecuted, and the Supreme Court routinely upheld their convictions. Justice Oliver Wendell Holmes rightly wrote, “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” The Allies won World War I.

Well, it’s a little more complicated than that, but Ben is confident that his readers are idiots and will swallow his re-vamped version of history. And I should add that the argument of, “Well they did it before” isn’t exactly the best one. Take Japanese internment, for example: They did it before, but it doesn’t make it right.

Except, oh wait, according to Ben it does:

During World War II, President Franklin D. Roosevelt authorized the internment of hundreds of thousands of Japanese-Americans, as well as allowing the prosecution and/or deportation of those who opposed the war. The Allies won World War II.

Consider the implications here: We interned an entire race of people, and that’s why we won the war. This is an example we should repeat.

Nervous yet?

During the Vietnam War, the Supreme Court repeatedly upheld the free speech rights of war opponents, whether those opponents distributed leaflets depicting the rape of the Statue of Liberty or wore jackets emblazoned with the slogan “F— the Draft.” America lost the Vietnam War.

I love this: America won WWI and WWII because we squelched free speech and prosecuted opponents; we lost Vietnam because we allowed protests. Right. I get the feeling that Ben would be much happier living in, say, Iran, where no one publicly speaks ill of the government, pornography is under control, and that “girls gone wild” culture that offended Ben so much he wrote a book about it just doesn’t exist. I’ll even pay his airfare if he promises never to come back.


61 thoughts on But Conservatives LOVE Free Speech

  1. Maybe a good time to post this again:
    From my favorite Republican:

    “The President is merely the most important among a large number of public servants. He should be supported or opposed exactly to the degree which is warranted by his good conduct or bad conduct, his efficiency or inefficiency in rendering loyal, able, and disinterested service to the Nation as a whole. Therefore it is absolutely necessary that there should be full liberty to tell the truth about his acts, and this means that it is exactly necessary to blame him when he does wrong as to praise him when he does right. Any other attitude in an American citizen is both base and servile. To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public. Nothing but the truth should be spoken about him or any one else. But it is even more important to tell the truth, pleasant or unpleasant, about him than about any one else.”

    TR—Kansas City Star—1918

  2. If I’m not mistaken, Lincoln was well within his authority to suspend habeas corpus:

    The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.

    Art. I, Sec.9

    I think the Civil War qualifies as “Rebellion.” However, it’s quite clear that the Framers had in mind a situation where the country was fighting a war at home. And Lincoln met a lot of opposition for exercising it on his own, so he got an authorization from Congress.

    It’s also been used to stop the Klan, in the Philippines in 1905, and in Hawaii during WWII (Hawaii, of course, having been invaded).

  3. Let us not forget the “Alien & Sedition Acts” that were met with such revulsion by the American People that the Federalists were chucked out of power.

  4. How Ben Shapiro can spew up the garbage he wrote and manage to get it published is astounding enough by itself.

    Of course the line, “The Democratic National Committee told me that they had not released a statement regarding Gore’s speech and had no plans to do so. The New York Times editorial board, the official outlet of the American left, wrote nary a word about the speech.”

    I could just imagine the people on the other end of the line at the DNC or the NYT getting a call from some little squeaky voiced Harvard virgin like himself demanding an ‘explanation’ for Gore’s remarks and trying to spurn a comment by calling out the word ‘sedition’.

    Must have been a hoot on the other end.

    If it weren’t scarier to think that there are a large number of people who will swallow his idiocy and adopt it as their own without question.

  5. holy mother. sometimes i feel like i’m on a tilt-a-whirl with this stuff.

    historians have certainly been critical of that aspect of Lincoln’s presidency

    exactly. did shapiro think he could slide this one by on Lincoln’s saint status among americans in general? “lincoln did it, it must be cool.” lincoln did a lot of great things, but he was a complicated, flawed person like anyone else, and thus he also did some questionable things.

    hell, he might even have been gay. lincoln did it, it must be cool…

  6. One must ask: how did the detention of Japanese Americans cause the Allies to win WWII? I’m more than confident that internment and “Fuck the Draft” t-shirt don’t determine the outcome of a war…

  7. the media that has and is now republishing the ‘cartoons’ in Canada – are all right-wing-nuts too… same ones that railed (are about to again) against same sex marriage and Canada’s (decieving) refusal to join the US in the war of terror.

    nonetheless, all the ‘leftists’ i know are getting sucked into the misleading ‘free speech’ debate promoted in large part by ceaseless attention to riot images (extremist violence)…

    it’s really seemngly quite easy to destract entire populations of people into non-contextualize, and largely irrelevant debates. but.. well, i guess y’all aleady knew that (eg: Bush’s second electoral victory)….

    : )

  8. Wow. I don’t think I’ve ever heard anyone defend the Espionage Act convictions during WWI. That’s generally taken as a cautionary tale about the extremely adverse effects of wartime hysteria.

    The Espionage Act made it a crime, punishable by 20 years in prison, to insult the flag. I mean, seriously: if you said “the flag is ugly,” you could be sent to prison for 20 years. Is that honestly what Ben Shapiro thinks should be our model?

  9. I love this bit: It is now considered bad form to criticize those who commit seditious acts against the United States. Challenging the patriotism of a traitor draws more ire than engaging in treasonable activities.

    Um, where, exactly? In what corner of the media universe? ‘Cause, you see, I read and hear and see ‘wingers referring to liberals and opponents of the Bush Administration as “traitors” roughly every five seconds or so, and with the exception of the lefty blogosphere I haven’t seen any ire whatsoever drawn by these obscene accusations.

    Ben Shapiro — and the small army of conservadorks like him that seem to run every college paper in the country — hates freedom. He cannot stand the idea that other living, breathing, thinking human beings disagree with him, and so he fantasizes about silencing us. Well, it ain’t gonna happen, Sparky.

  10. Conservadorks run your college papers?

    In Canada’s they run from moderate liberal to damn near seditious. Actually really seditious. (Honestly, I’m a fan of sedition.)

  11. Not all colleges are liberal in the US, unfortunately. UND (University of North Dakota) is safely status quo conservative, for instance.

  12. My campus paper was very non-political when I was in school; most of the editorializing was on issues relevant to the school — a big concern since we were going through state budget cuts and tuition hikes. I don’t remember the paper commenting on liberal vs. conservative issues.

    I understand that now there’s a right-wing campus paper there that was started up in the 90s.

  13. Lincoln was on shaky legal ground at best. In Ex Parte Merryman (17 F. Cas. 144) in 1861, the US Circuit Court for Maryland held that Lincoln did not have the right to suspend habeas corpus. In response, Lincoln threatened to have Chief Justice Roger Taney (who was sitting on the circuit court and wrote the decision) arrested.

    Habeas corpus, and circumstances where its suspension would be Constitutional, is mentioned in Article I, Section 9 of the Constitution, which defines the limits on congressional power. As I understand it, Lincoln did not have the power to unilaterally suspend habeas corpus. So yeah, that one fails, too.

  14. Wrongo.

    See instead Ex Parte Milligan 71 US 1, to wit:

    While we do not admit that any legislation of Congress was needed to sustain this proclamation of the President, it being clearly within his power, as commander-in-chief, to issue it; yet, if it is asserted that legislative action is necessary to give validity to it, Congress has seen fit to expressly ratify the proclamation by the act of March 3d, 1863, by declaring that the President, whenever in his judgment the public safety may require it, is authorized to suspend the writ of habeas corpus in any case throughout the United States, and in any part thereof.

  15. Don’t overlook Craig R.’s link. He’s writing about the New Mexico nurse who is being investigated for sedition because, while an employee of VA, she wrote a letter to the editor which criticized the President.

  16. Poop. Knew I shoulda read that one more closely.

    But…don’t forget that Ex Parte Milligan 71 US 1 (1866) still repudiated the suspension of habeas corpus, saying that habeas corpus could not be suspended by Congress or anyone else while civilian courts were still in operation; habeas corpus can only be suspended when civilian courts are forced closed. Because of that, civilians facing criminal trial must stand trial in civilian courts, not in front of a military tribunal, which was what happened to Milligan and four of his friends.

    So the reference to Lincoln by Shapiro is still crap.

  17. The trouble with Berg’s letter is that she used the word “force” in an ambiguous way. (“We need to wake up and get real here, and act forcefully to remove a government administration…”) There would be more (and possibly exculpatory) ambiguity if she’d written this in 2003 when there was an election coming up, but she wrote it in 2005; talking about removing an administration forcefully is problematic and generally has to be investigated.

  18. The Espionage Act made it a crime, punishable by 20 years in prison, to insult the flag. I mean, seriously: if you said “the flag is ugly,” you could be sent to prison for 20 years. Is that honestly what Ben Shapiro thinks should be our model?

    I find this kind of funny, because about five minutes ago, when the Valerie Plame scandal was in heavy media rotation, liberals were all about enforcing the Espionage Act.

  19. The trouble with Berg’s letter is that she used the word “force” in an ambiguous way. (”We need to wake up and get real here, and act forcefully to remove a government administration…”) There would be more (and possibly exculpatory) ambiguity if she’d written this in 2003 when there was an election coming up, but she wrote it in 2005; talking about removing an administration forcefully is problematic and generally has to be investigated.

    There was nothing ambiguous; she wanted them forcibly removed from office via court proceedings:

    Bush, Cheney, Chertoff, Brown and Rice should be tried for criminal negligence. This country needs to get out of Iraq now and return to our original vision and priorities of caring for land and people and resources rather than killing for oil. Katrina itself was the size of New Mexico. Denials of global warming are ludicrous and patently irrational at this point. We can anticipate more wild, destructive weather to occur as a response stress of the planet. We need to wake up and get real here, and act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit. Otherwise, many more of us will be facing living hell in these times.

  20. I find this kind of funny, because about five minutes ago, when the Valerie Plame scandal was in heavy media rotation, liberals were all about enforcing the Espionage Act.

    “We” were?

    Setting aside issues of civil liberties specific to the Espionage Act, do you think it’s hypocritical to differentiate between “Fuck the Draft” and “the release of classified information to unauthorized persons”?

  21. “We” were?

    Not, not all of “you” were. Some on the left, like Chris Hitchens, had the integrity to deplore the call for aggressive enforcement of a potentially speech-chilling law for nakedly partisan purposes. But hey, this very post is titled “But conservatives LOVE free speech”, and then quotes exactly one conservative, so glass houses and all that.

    Setting aside issues of civil liberties specific to the Espionage Act, do you think it’s hypocritical to differentiate between “Fuck the Draft” and “the release of classified information to unauthorized persons”?

    No, it’s not hypocritical. My point was simply a few months ago, there were liberals who were excited about the opportunity to use a very broadly-written law to hurt an administration that they hate, without any concern for the possible free-speech consequences. How many government whistleblowers do you think you’re going to hear from if you starting using the Espionage Act the way liberals wanted it used in October?

  22. My point was simply a few months ago, there were liberals who were excited about the opportunity to use a very broadly-written law to hurt an administration that they hate, without any concern for the possible free-speech consequences.

    Self-serving and ultimately incredibly dangerous, but completely different from specifically advocating the punishment of speech because it’s dissenting speech. If liberals had wanted to throw Maureen Down in jail because she criticized Clinton, that would be analagous.

  23. Self-serving and ultimately incredibly dangerous, but completely different from specifically advocating the punishment of speech because it’s dissenting speech.

    I think it’s worse, because we didn’t even know then (and still don’t really know now) what Rove said or didn’t say, and yet liberals were chomping at the bit to throw him in jail.

  24. Ok, let’s get this straight. The Espionage Act, passed in 1917, made it a crime to publicize military secrets, among other things. The 1918 amendment made it a crime to insult the “form of government” of the U.S., the military, the flag, the uniforms of the military, etc. You honestly think it’s hypocritical to criticize the 1918 amendment, which was clearly a violation of the First Amendment, but not the original act, which is debatable?

    I don’t think that liberal bloggers thought enough about the implications of the Plame affair for press freedom. But it’s silly to suggest that it’s hypocritical to criticize the speech provisions of the Espionage Act but not the official secrets provisions.

  25. …Chris Hitchens is on the left? I thought he abandoned us a decade ago.

    He’s actually sort of all over the place. But he’s all over the place in a way that would make him completely gung-ho about outing a female CIA operative to punish her husband for opposing the war in Iraq. The idea that his stance on this had to do with his “integrity” over free speech issues is either stupid or dishonest.

  26. …Chris Hitchens is on the left? I thought he abandoned us a decade ago.

    He came to the realization that left-wing economic programs were not reality-based about a decade ago. Since then he’s been re-appraising various leftie tropes he’s always endorsed, sometimes continuing to hold them, sometimes coming over to the good side of the force.

  27. I find this kind of funny, because about five minutes ago, when the Valerie Plame scandal was in heavy media rotation, liberals were all about enforcing the Espionage Act.

    No, Jon. It’s not the same Espionage Act anymore. The portions of the Act that dealt with sedition or disrespect for the flag or criticism of the government have long since been repealed or declared unconstitutional. The parts that deal with protecting our intelligence assets have remained. It is those that Patrick Fitzgerald is considering as part of the Plame investigation and prosecution.

    But for someone who complains about a conclusion drawn about conservative views on free speech from a single blog entry, you’re pretty careless about drawing a conclusion about liberals being “all about” the Espionage Act from a single blog entry. Frankly, I don’t remember seeing much mention of it at all in the liberal blogosphere. Au contraire, the liberals were all about enforcing the Intelligence Identities Protection Act of 1982, section 421. Which, far from being a “very broadly written law,” is quite specifically on point:

    (a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

    Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.

    In any event, the provisions of the Espionage Act you cite are not nearly so “very broad” as you represent.

  28. The trouble with Berg’s letter is that she used the word “force” in an ambiguous way. (”We need to wake up and get real here, and act forcefully to remove a government administration…”) There would be more (and possibly exculpatory) ambiguity if she’d written this in 2003 when there was an election coming up, but she wrote it in 2005; talking about removing an administration forcefully is problematic and generally has to be investigated.

    Sorry, but “act forcefully” does not mean “act with force.” And acting to oust an administration through impeachment proceedings is not the same thing as seeking to overthrow the government, which kind of entails lack of due process and probably a suspension of the Constitution.

    But then again, if you *do* believe that acting forcefully to oust a sitting administration is treasonous, then you must, therefore, believe that the Republicans who tried to impeach Clinton were traitors.

  29. But for someone who complains about a conclusion drawn about conservative views on free speech from a single blog entry, you’re pretty careless about drawing a conclusion about liberals being “all about” the Espionage Act from a single blog entry.

    I wasn’t complaining about overgeneralization, I was just pointing out to piny that I should get some slack because I was basically playing by the same rules as Jill did in her original post. In any event, I think a fair reading of my second post makes clear I wasn’t referring to “all” liberals. But there were liberals who were calling for the Espionage Act to be used against the White House. That’s simply a fact- maybe an inconvenient one for you, but a fact nonetheless. Mark Kleiman and others who I understand are taken somewhat seriously in leftwing circles were arguing exactly for this.

    With regard to the IIPA, you’re right that it’s much more narrowly drawn, which is why it was ridiculous to argue that it applied to the actions of Libby, Rove, or anyone else involved in the imbroglio. But as you correctly note, that didn’t stop many liberals from arguing that it did.

    And as for the Espionage Act, yes, the more egregious parts have been amended out. But as to the remaining provisions’ breadth, well, don’t take my word for it- here’s the ever-unbiased Media Matters, arguing that the Act is, in fact, quite broad. Interested parties can read the pertinent section of the Act for themselves at that link and make up their own minds.

  30. But there were liberals who were calling for the Espionage Act to be used against the White House. That’s simply a fact- maybe an inconvenient one for you, but a fact nonetheless. Mark Kleiman and others who I understand are taken somewhat seriously in leftwing circles were arguing exactly for this.

    That still doesn’t change the fact that it’s an entirely different section of the act under discussion. It’s not inconvenient for me at all, since I understand that different sections apply to different situations, and I also understand that criticizing the current occupant of the White House is in no way comparable to deliberately and for political reasons blowing the cover of one of our own covert agents.

  31. randomliberal/Robert:

    Didn’t mean to dis..but Lincoln did have a statutory basis. There was also a 1791 statute and an 1862 (not mentioned) and the Milligan stuff was just dicta.

    But yeah, he’s so full of shit….

  32. Sorry, but “act forcefully” does not mean “act with force.”

    Oookay.

    It doesn’t have to mean that, I’ll grant ya. Flexible thing, our mother tongue. And of course, that flexibility carries with it some ambiguity.

    And acting to oust an administration through impeachment proceedings is not the same thing as seeking to overthrow the government…

    Surely. In fact, her message can most plausibly be interpreted as an entirely legitimate expression of grievance. Or it could be a coded call for revolt. I agree that the last possibility is quite remote. However, we investigate remote possibilities in this particular arena, for good reason.

    From what I can see, the investigation against her boiled down to her boss looking at her work computer. She didn’t get fired or demoted or transferred to the urinal storage facility in Adak; I can’t even find a record of her getting a stern talking-to. It’s teh Apocalypse!

    I notice here another strengthening of the dishonest reporting meme that has a bad tendency to self-marginalize left-wing political discourse. Berg wasn’t investigated for saying mean things about the President; if we investigated everyone who said mean things about the President, every third person would be an FBI agent and there’d still be a backlog. No, she was investigated because there was some intemperate language in her letter that could plausibly be construed as a possible threat. 99.9% percent, it was crap, and everyone knew it – the guys who investigated her probably spent most of their time muttering about what a waste of time it was. But nonetheless people who say things like this get looked into, for good reasons. And everybody understands that – but it serves a partisan purpose to be able to run screaming banner headlines at ACLU.org about the oppression of the speakers-of-truth-to-power.

  33. From what I can see, the investigation against her boiled down to her boss looking at her work computer. She didn’t get fired or demoted or transferred to the urinal storage facility in Adak; I can’t even find a record of her getting a stern talking-to. It’s teh Apocalypse!

    Oh, but dear Robert, who does not share the same sense of idiom that I, a native English speaker, does,

    The New Mexican nurse had a specific, written complaint of “sedition” lodged against her in her gummint job.

    Sedition. That’s quite a heavy charge, with all kinds of connotations of “working to overthrow the *entire* governmental system” rather than the far more prosaic “throw the bums out.”

    Incidentally, or perhaps not so, you never did answer the question of whether, if calling for the overturning of the Bush government is sedition, actually impeaching President Clinton doesn’t also fit the bill?

    Berg wasn’t investigated for saying mean things about the President; if we investigated everyone who said mean things about the President, every third person would be an FBI agent and there’d still be a backlog. No, she was investigated because there was some intemperate language in her letter that could plausibly be construed as a possible threat. 99.9% percent, it was crap, and everyone knew it – the guys who investigated her probably spent most of their time muttering about what a waste of time it was.

    Sorry. Common usage doesn’t get you there. And certainly speaking to the woman before you level charges of sedition would perhaps deal with the issue.

    However, in a world where Ann Coulter is not immediately besieged by federal agents for publicly calling for the poisoning of Justice Stevens, what expectation can we reasonably have that a critic of George Bush wouldn’t be investigated for her opinion, which was not 100% supportive of Our Dear Leader?

  34. The New Mexican nurse had a specific, written complaint of “sedition” lodged against her in her gummint job.

    No, she didn’t.

    Incidentally, or perhaps not so, you never did answer the question of whether, if calling for the overturning of the Bush government is sedition, actually impeaching President Clinton doesn’t also fit the bill?

    That’s true, I didn’t answer that question. Since I didn’t argue that democratically or procedurally removing the Bush administration would be sedition, I’m not going to address your straw person.

    I’ve grown weary of – every single time you decide to argue against something I have to say – you misrepresenting my words and arguing against a twisted parody.

    So I’m simply ignoring those sections of your responses. I don’t know if that will work any better than the previous strategy of painstakingly documenting the misrepresentations, but it will take a lot less time.

  35. The New Mexican nurse had a specific, written complaint of “sedition” lodged against her in her gummint job.

    No, she didn’t

    Yah-huh.
    .

    After her computer was seized, Berg wrote a memo to her bosses seeking information and an explanation.

    Mel Hooker, chief of the human resources management service at the Albuquerque VA, wrote Berg back on November 9 and acknowledged that “your personal computer files did not contain the editorial letter written to the editor of the weekly Alibi.”

    But rather than apologize, he leveled the sedition charge: “The Agency is bound by law to investigate and pursue any act which potentially represents sedition,” he said. “In your letter . . . you declared yourself ‘as a VA nurse’ and publicly declared the Government which employs you to have ‘tragically misplaced priorities and criminal negligence’ and advocated, ‘act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit.’ ”

    Looks like a written sedition charge for me.

    I’ve grown weary of – every single time you decide to argue against something I have to say – you misrepresenting my words and arguing against a twisted parody.

    Nobody’s asking you to stay. If you’d be more comfortable elsewhere, by all means, be my guest.

  36. What you describe isn’t a “written sedition charge”.

    What you describe is a case of a bureaucrat advising an employee that the potential for sedition had been discovered attached to her, and that they were conducting an investigation into the question. No charge, to my knowledge or reading, has been filed.

    Ms. Berg, to my knowledge, faces no court action, no cause or other reason to appear before some magistrate or commission; she’s a talker who wrote a fiery memo, at this point.

    I accept the premise that this represents a (very) slight chilling of political speech – but it is a chilling in an area where I, not alone among our countrymen, don’t much mind low temperatures. The state is a caged beast; please do not poke the beast, thanks.

  37. Why can’t Americans understand English?

    To act forcefully– to use energy and work to pursue a goal.
    To act forcibly— to use violent or the threat of violence to pursue a goal.

    Her statement was NOT a threat.

  38. …criticizing the current occupant of the White House is in no way comparable to deliberately and for political reasons blowing the cover of one of our own covert agents.

    After several years and millions of dollars, Patrick Fitzgerald to this day has not confirmed that Plame was a “covert agent”, and neither Scooter Libby nor anyone else is under indictment for “blowing her cover.” Liberals wanted to use the Espionage Act to punish speech, plain and simple- this has never been about protecting national security or our intelligence assets. If you don’t believe that, just look at the difference between the liberal reaction to the Plame story, where at most one agent was “outed”, and the publishing of the details of the NSA terrorist surveillance program (which actually was undeniably covert). The latter was likely far more detrimental to our security efforts than the former.

  39. Robert, if you like low temperatures when it comes to criticizing clear governmental violations, Iran is probably best for you. The state should be poked on a regular basis; after all, it was created, at least in theory, to be one of the people, by the people, and for the people. Even a “slight chilling” of plitical speech is a slippery slope.

  40. After several years and millions of dollars, Patrick Fitzgerald to this day has not confirmed that Plame was a “covert agent”, and neither Scooter Libby nor anyone else is under indictment for “blowing her cover.”

    Sorry. Fitzgerald’s grand jury investigation cost just $723,000 in its first 15 months. Compare to the $21 million over 10 years spent by the independent counsel investigating Henry Cisneros, who copped a plea in 1999. Yet the IC, David Barrett, stayed in business for six more years to fish around for something to pin on the Clinton administration. Ken Starr spent over $40 million over five years because of a blow job.

    Libby was charged with perjury; he obstructed the investigation and prevented the grand jury from getting the information it needed to charge anyone with specific violations. And the grand jury’s been re-impaneled, so it’s not over yet.

    Also, it’s not Fitzgerald’s job to confirm whether Plame was a covert agent. It’s the CIA’s, and they say she was.

    Liberals wanted to use the Espionage Act to punish speech, plain and simple- this has never been about protecting national security or our intelligence assets. If you don’t believe that, just look at the difference between the liberal reaction to the Plame story, where at most one agent was “outed”, and the publishing of the details of the NSA terrorist surveillance program (which actually was undeniably covert). The latter was likely far more detrimental to our security efforts than the former.

    I’m really not in the mood to once again have to point out that Valerie Plame’s cover involved getting intelligence on exactly the kind of weapons that were the latest stated reason for getting into war with Iraq. I’m also not in the mood to point out that the NSA “terrorist surveillance” program has turned up bupkus.

    But it’s pretty sad that you feel that the exposure of an illegal program of the government spying on its own citizens is more harmful than the program itself.

  41. First, I don’t believe sedition is a crime in the United States. If it is, I’d like a statute cite.

    Employees do not give up their 1st Amendment rights by virtue of their employment. There is a long line of case law on this beginning with Pickering v. Board of Ed. 391 U.S. 563 (1968) and fleshed out in Connick v. Meyers 461 U.S. 103 (1986).

    An employee has the right to speak out on “matters of public concern” but not internal matters only. Katrina is a matter of public concern, no?

  42. I’ll concede I was wrong about the cost of the Fitzgerald investigation; I believe the rest of my post stands on its own. It’s not been proven that Plame was covert, and no one has been charged with “blowing her cover.”

    I’m also not in the mood to point out that the NSA “terrorist surveillance” program has turned up bupkus.

    Right, except for, you know, that key Al Qaeda terrorist that it caught, who’s now challenging his conviction based on published reports of the NSA program. Whatever else the program might have “turned up”, we don’t know, because (I repeat) it was covert.

  43. The idiot who thought he could bring down the Brooklyn Bridge with blowtorches is a “key Al Qaeda terrorist”? That’s rich.

    Jon, the problem with the NSA program is not that it is covert, it is that it’s being done without warrants. There’s a court specifically set up for the very purpose of issuing those warrants, and its rules are so generous that the government doesn’t even have to get the warrants in advance. Yet the NSA program bypasses this court for no good reason. Don’t you want to know why? I sure do.

  44. Jon C:

    At the point there is no oversight by the courts or Congress, what’s to prevent this President or any President from abusing their power? Nixon did. Or doesn’t absolute power corrupt absolutely anymore? Don’t know about you but a president, any president saying “Trust me” doesn’t cut it with this American. Please see #1 post and comment.

  45. At the point there is no oversight by the courts or Congress, what’s to prevent this President or any President from abusing their power?

    There was Congressional oversight. Bush regularly updated the Congressional floor leaders and Intelligence Committee chairmen and ranking members of both parties on the program. When the program was initially exposed, the House Intelligence Committee’s Ranking Democrat, Jane Harman, actually came out and said:

    As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities.

    She quickly changed her tune though, after she got her party’s marching orders.

  46. You confuse being briefed with having oversight. Oversight implies having some power to rein in the program, which Congress does not have.

  47. So about those courts, Jon?

    What about them? Are you arguing we should cede control over matters of national security to the judiciary? If so, that’s where you and I part ways.

    You confuse being briefed with having oversight. Oversight implies having some power to rein in the program, which Congress does not have.

    If the members of Congress briefed on the program were so disturbed about it, they should have introduced legislation to change or abolish it. Tellingly, they aren’t even taking this step now, which you would think would be the obvious step if it’s so blatantly illegal.

  48. If the members of Congress briefed on the program were so disturbed about it, they should have introduced legislation to change or abolish it. Tellingly, they aren’t even taking this step now, which you would think would be the obvious step if it’s so blatantly illegal.

    They couldn’t do anything about it before it was exposed, because they’re bound by secrecy rules.

    And they don’t have to pass a law to abolish it, BECAUSE IT’S ALREADY ILLEGAL. There *is* a law in place that forbids just this kind of spying — it’s called FISA.

  49. Oversight implies having some power to rein in the program, which Congress does not have.

    “Here’s your budget for next year. It’s zero dollars. Good luck with that!”

    Congress has the power of the purse, which is the ultimate in oversight power.

    They couldn’t do anything about it before it was exposed…

    Uh huh. Well, now it’s exposed. They doing anything?

    There *is* a law in place that forbids just this kind of spying — it’s called FISA.

    People with credible arguments in the government say that this is not in fact the case. Perhaps they are wrong; however, their arguments concerning the separation of powers and the inherent authority of the executive are slightly more credible to at least this observer.

  50. People with credible arguments in the government say that this is not in fact the case.

    Yep. And while I don’t have the time or the expertise to get into a full-blown argument over the legality of the program, I’d just note thatClinton’s Office of Legal Counsel also defended the inherent constitutional authority of the President to conduct electronic surveillance in furtherance of national security.

  51. Jon, not the same thing.

    Did you read the original material linked from the Corner? Because these are the first two paragraphs:

    Under Title III of the Omnibus Crime Control and Safe Streets Act, law enforcement officials may share with the intelligence community information obtained through surveillance authorized by courts pursuant to Title III where it is done to obtain assistance in preventing, investigating, or prosecuting a crime.

    Law enforcement may also share with the intelligence community information obtained through surveillance authorized by the court pursuant to Title III where the information is of overriding importance to national security or foreign relations and disclosure is necessary for the President to discharge his constitutional responsibilities over these matters.

    The Clinton Administration, in other words, was talking only about sharing information that had been gathered through surveillance that had been authorized by the court. The Bush program bypasses the FISA court. See the distinction?

  52. Yeah, I read that. Did you read this?

    [T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation,” Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President’s authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President’s constitutional authority and should be read to be “subject to an implied exception in deference to such presidential powers.” Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.).

    In other words, the President’s inherent constitutional authority can trump FISA’s statutory requirements. You may also want to check out In re: Sealed Case, in which the FISA Court of Review held as follows:

    The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information… We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

  53. Truong involved a pre-FISA surveillance, and a foreign surveillance at that. As the court in In re Sealed Case made clear, the Fourth Circuit did not consider the FISA statute carefully because it didn’t apply.

    The Constitutional authority referred to in the case is to gather foreign intelligence. The problem we have is that the NSA is that it involves gathering domestic intelligence. FISA specifically excludes purely foreign communications; what it does is require a warrant for spying on US persons communicate with foreign persons.

  54. The Constitutional authority referred to in the case is to gather foreign intelligence. The problem we have is that the NSA is that it involves gathering domestic intelligence.

    Not really; it involved collecting intelligence from international sources where one end of the communication was in the US.

    But legalisms aside, it doesn’t really matter, because the program’s not doing much of anything now that it’s been exposed and our terrorist enemies are likely taking greater precautions in communicating amongst themselves. And as bad as exposing Plame may or may not have been, this is far worse.

  55. My God the conservatives are still believing this Clinton did it too shit. No, he didn’t. His order specifically excluded U. S. Citizens. Read it. All.

    K. Jon, if the President does not need a Court Order to surveill a U. S. Citizen who, pray do tell, is the FISA law supposed to protect? If it isn’t foreigners and it isn’t Americans, it would be….

    Jon, if the President doesn’t have to answer to Congress or the Courts the person or institution protecting our Constitutional rights would be….

    If you’re going to quote Sealed Case, read it. All.

    See again post #1.

  56. from “Robert” —

    The trouble with Berg’s letter is that she used the word “force” in an ambiguous way. (”We need to wake up and get real here, and act forcefully to remove a government administration…”) There would be more (and possibly exculpatory) ambiguity if she’d written this in 2003 when there was an election coming up, but she wrote it in 2005; talking about removing an administration forcefully is problematic and generally has to be investigated

    .

    Bull shit.

    Reading the letter gives full context, and attempting to claim that the use of the word “forcefully” can be taken, in that context, as being to use force to overthrow the government has about as much validity as the claim of today’s neo/pseudo-cons that they are the “party of Lincoln” or that those same pseudo-cons are in favor of such conservative ideals as smaller government intervention in our private lives.

    And Shrub proclaiming a “war or terra” still does not meet the requirements that define that the nation is in a State of War.

    From Magis —

    My God the conservatives are still believing this Clinton did it too shit.

    Yes.

    Whenever something inconvienient comes up, the reflex seems to be either along the lines of “It all started when he hit me back,” claim “He did it first” or run in circles and shout “Clinton! Clinton!” (except for the ones who accuse Jimmy Carter of being a traitor)

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