Wednesday, December 21, 2005

Ad hoc felonies

Nice discussion by Marty Lederman going on at Balkinization about the domestic spying issue.

The most recent post discusses this piece of ex post facto justification by Richard Posner in the Washington Post.

Marty Lederman writes,
Here's the most chilling line in Posner's column, taking euphemism to a new level: "It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives." That's Posner's kinder, gentler way of saying "It is no surprise that current federal laws, which unwisely criminalize this conduct, are being circumvented by the President's authorization to commit felonies."
Here's the Posnerian line, the one we're going to see popping up throughout the rightwing: "if you're not a terrorist, you have nothing to fear." And, "hey, it's not like you can't trust us to do a little bit of ad hoc correcting of laws/statutes that we don't like." Basically, that this administration has the private power to rewrite laws it deems "too restrictive" (Posner's terms) in the war on terror, and keep that rewriting from the public, even when "the public" means here "Congress." That, folks, is abuse of power in a constitutional and ostensibly representational democracy.


barba de chiva said...

Border Patrol agents, in searches of cars at the USBP roadblock 15 miles into the U.S. on I-35, often use the exact same logic. Even as they open up every door and invite their dogs onto the back seat; even as they rifle through bags of groceries; even as they tap, kick, pat, and bump my car like it's a common percussion instrument, they're always quick to point out that I shouldn't be angry . . . that I shouldn't be bothered at all. "If you're not doing anything wrong," they say, "you've got nothing to worry about." They really expect me to be cheerful about it and thank them for the search, as if it they had gone to the trouble to vindicate me.

The Border Patrol (I know it seems to be an obsession with me; if you lived here, you'd understand) has long been the quiet advance guard in the fight people like Posner are finally feeling bold enough to defend in print. It's all really depressing.

helmut said...

OK, no Border Patrol problems here. I just wish Virginians who work in DC would pay DC taxes.

But there's nary a building to enter in DC where you aren't given the shakedown. DC is one giant airport.

"S'curity." It's the American rectal obsession. Frankly, despite all their militaristic bluster, I think these people are scaredy cats.

Neil Shakespeare said...

"American Rectal Obsession" indeed. I just don't know why the government doesn't shove 'asscams' up our rectums and have done with it. Then we can just bend over so they can check our 'equipment'.

Anonymous said...

It's rich, innit? I've actually seen the comments at super right-wing blogs, where among other things people say "Yeah, but the Patriot Act should have sunset provisions only because a Democrat might get into office -- imagine Hillary with that kind of power!"

Yes, they actually write that kind of shit. Cowardly, fascist scum, the whole lot of 'em.