"There is nothing outside the War on Terror-as-text;" or, "Oceania has always been at war with Eurasia"

Gwading is ovuh, and I am wested and wecovuhd. Wet the howidays begin!

What a way to begin.

Perhaps my re-editing of Derrida is a bit mistaken: When I began this post, NPR's Morning Edition is on; Susan Stamberg will soon be on with an interview with the food guy from Queer Eye for the Straight Guy, seeking advice for holiday meals. Christmas is indeed coming, for which I am thankful. To be sure, NPR has had a couple of featured stories about all this. But. Given NPR's reputation in some quarters for being politically-biased against President Bush, and given the recent revelations about the Presidential order permitting the NSA to eavesdrop on "American people" (in quotation marks because, I've learned these past few days, this is a legal term) and, in so doing, not obtaining warrants to do so because, in his reading of the powers granted to him by Congress just after 9/11, he's allowed to, NPR's restraint has been remarkable--if it so chose, NPR could easily fill the two hours of Morning Edition with stories exploring the ramifications of this matter.

But: it would be difficult to do so in a truly balanced manner. The very strong sense I get in the reading I've been doing about all this (at both "liberal" and "conservative" blogs) is that it is difficult to find many people outside the administration willing to give these actions even strong legal justifications for the President's actions, much less ringing endorsements of the same.

Below the fold, I've provided some links to posts that I've found especially informative, along with some personal (and lenghty and rambling, but heartfelt all the same) comments. For reasons I state below, I encourage my readers to do the same, no matter who may be reading.

Over at the excellent law blog Volokh Conspiracy (not, by the way, exactly a bastion of liberalism on the internets), Orin Kerr offers a lengthy, detailed legal analysis of the constitutionality of the arguments used to justify the President's circumventing of FISA in ordering the NSA to eavesdrop on domestic communications.

Kevin Drum pulls together some disparate statements in this post and concludes that the NSA is up to something besides traditional wiretapping that, as Josh Marshall concludes here, simply wouldn't be permitted by law because too broad and vague in its aims. And speaking of Marshall, in another post, he responds to an article in today's Washington Post by William Kristol and Gary Schmitt by invoking Jefferson and exploring the implications during times of war for such basic constitutional notions as the separation of powers and the system of checks and balances if a President chooses not to acknowledge that he is beholden to the law.

I hope no one determines that the lack of rhetorical foamed spittle in this post is an indication that I don't feel strongly about this. Indeed, that is why I am posting on this subject at all and not about butterflies and moonbeams or how crappy my _____________ is. As Kerr says in the post I linked to above, constitutional law on this matter is murky--and, to my mind, that is more than enough reason for this administration to tread lightly in the area of constitutionally-protected civil liberties. No one denies the President the right, even the responsibility, to protect the nation from its enemies. But surely part of protecting the nation is observing and respecting not just congressional and judicial oversight but also the rights of its citizens.

In various ways, these three posts of mine, read together, strongly imply that the Administration has actively sought to game its prosecution of the War on Terror so as to elude both domestic and international oversight, or even rig that oversight in its favor. Add to that the fact that the War on Terror has been characterized as a war whose conclusion is years in the future and will be difficult to determine, and eluding/rigging oversight becomes more and more ominous to contemplate. Who ultimately gets to say what government activity does/does not fall under the umbrella of the War on Terror? Who is to say when that war ends, especially given the transnational nature of terrorist organizations? How will we all know, independent of those prosecuting it, when it has ended?

And what of citizens' part in all this? For too long we collectively--the media, the citizenry, the legislative and judicial branches--have let the executive branch define the terms of this war's prosecution pretty much on its own terms, insisting that scrutiny and questions and criticism amount to, at best, not being patriotic. Given that one of the clear intellectual foundations of this nation's war to come into being is precisely the right to dissent, more of us should have, from the beginning, labelled that argument from the outset as specious in the extreme.

We are familiar with the idea that our military serve to protect the nation and safeguard our freedoms; some veterans use this idea to challenge civilians who complain about the endangering of civil liberties; they (veterans) ask rhetorically, "While I and others were spilling our blood to protect this nation, what were YOU doing?" A fair question, we must admit. And many of us have no good answer: we vote infrequently; we do not write our representatives to let them know we approve/disapprove of pending legislation or their votes; the complaints and snarks of others substitute for our action. Just as with our muscles and brains, the other way we ensure the health of our rights is by actively learning about and exercising them--and, via things like posts on humble blogs, encouraging others to do the same. Those soldiers do indeed sacrifice in vain if we don't remind those in power of our rights via their exercise.

Technorati tags:
NSA, War on Terror, War powers, Civil rights