One More Step Towards Fascism

I want to call your attention to an Associated Press article in today's Boston Globe: Medical, law calls possibly tapped: Officials say data court admissible.

Here's the background. Congress submitted some questions about the administration's warrantless wiretapping program to the Department of Justice, and the answers were released Friday night. (I'm still looking for the source document online, rather than just newspaper articles about it. If you find it, let me know.) Some of the questions concerned whether the program violates attorney/client privileges or medical privacy. The AP/Globe article quotes a Justice Department answer as saying:

Although the program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception.

So far, not unexpected, and nothing to be too alarmed about. If you have a tap on somebody, you'll hear all their calls. It's not surprising that you'd hear calls they make to their lawyer or doctor. But here's the punch line: The Department of Justice believes that they can use such information in court:

Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution.

Now, before getting to the conclusion of this statement, let's not skip over the fact that its premises are baldfaced lies: The Supreme Court has ruled that it's not a violation of the Fourth Amendment to tap agents of foreign governments without a warrant, and the administration has (entirely on its own) stretched that interpretation to allow "collecting foreign intelligence information." The first interpretation allows tapping James Bond; the second allows tapping anybody we think James Bond might have talked to. The administration has absolutely no reason to believe that this is legal. Consequently, the Terrorist Surveillance Program is not lawful -- the only reason a court hasn't thrown it out is that (since the program is secret) the victims can't prove that they are victims and can't establish that they have standing to sue.

On to the conclusion of the statement: "there appears to be no legal barrier against introducing this evidence in a criminal prosecution." In other words, the Justice Department no longer believes in attorney/client privilege.

Suppose, for example, that your lawyer has another client who is suspected of terrorism. Now your lawyer's phone is tapped. There's no constitutional basis for doing this, because the government has no probable cause to believe your lawyer is a terrorist, but no matter -- they do it because they can and because no one will stop them. You call your lawyer and discuss your defense of some offense unrelated to his alleged terrorist client. The Justice Department believes they can use that conversation against you in court.

Now, as the courts are currently constituted, that claim would never stand up. But let's not be too complacent about that. All we can conclude from this fact is that someday there will be a constitutional crisis between the administration and the judiciary. Eventually, the Supreme Court will tell them that they can't do something they really want to do.

So far, the administration and the Court have dodged this collision. The Court has found reasons to delay ruling on (for example) Jose Padilla's detention as an enemy combatant, and the administration has interpreted such rebukes as the Court has given in such a way as to be meaningless. (The Court found, for example, that the Guantanamo detainees have the right to file a habeas corpus suit. The administration now accepts that they can do so, but is arguing in court that the detainees have no rights that such a suit can enforce. They hold, in other words, that the Supreme Court has mandated an entirely empty ritual.) This dance can't go on forever, and probably can't even go on until President Bush leaves office in 2009 (assuming that he agrees to obey that provision of the Constitution).

What will happen then? Under previous administrations, I would have been confident that the executive branch would back down and submit to the laws as passed by Congress and interpreted by the courts. But this administration is in many relevant respects very different from all previous American administrations. I don't think anyone can say with confidence what they will do.

Bush May Be in Trouble Now

This morning I had one of those blood tests where you can't eat breakfast or have morning coffee, so afterward I rewarded myself with a trip to Panera. I wanted to sit near the fireplace, but that put me next to a table of old guys talking in loud working-class New Hampshire accents.

I hesitated, and then I caught the word impeach. I decided to sit down.

It wasn't your stereotypical collection of Bush-hating liberal elitists. One guy wore a "World War II Veteran" hat. Hanging on the back of another guy's chair was a jacket whose back displayed a logo from some submarine veterans group. They were kidding each other about who had and hadn't been to Ash Wednesday services yet.

And they were ripping into the administration on all fronts: tax cuts for the rich, Cheney's hunting accident. But above all, the war in Iraq. Two and a half thousand guys were dead, and for what?

Class anger was never far from the surface: It would be different if it were their kids getting their heads cut off. We wouldn't be over there then. One big difference with World War II, Roosevelt had sons in uniform. "It's always different when it's your own kids," one said. Another tied it back to tax cuts: For some reason Iraq is worth soldiers dying for, but not worth rich people paying taxes for.

Impeachment came up several times: The country is going down the tubes. We can't afford to let this go on for the rest of Bush's term. That kind of thing. They didn't get into what the actual charges might be.

I've heard a lot of people talk about impeachment lately, but always in educated liberal circles, and always in a conspiratorial whisper. These guys were spread across two tables, leaning back in their seats and talking loud enough to be heard without a hearing aid. They clearly didn't care who might be listening.

I sat quietly and pretended to read a book. At first I wanted to determine whether they were all anti-Bush, or if some pro-Bush guy was just sitting there silently. (That by itself would be interesting. I remember three years ago it was the Bush people who talked loud and the rest of us who stayed silent. We were afraid somebody would say we were traitors.) After I'd heard them all speak, I wanted to figure out whether they had always been against Bush or if something had changed their minds.

Eventually my breakfast was finished and their conversation was looping the way such conversations do. I wasn't hearing anything new. So I started gathering up my stuff to leave.

The guy on the far end, the one who claimed his baseball cap had erased his Ash Wednesday cross, waved and said "So long."

Maybe I hadn't been as discrete as I thought.

I decided not to slink away. I owned up to having listened to their conversation. They relaxed a little when I said I had enjoyed it. And that started me wondering what kinds of stereotypes I fit into, wearing my North Face cap and Ibex vest, reading a book and eating an egg souffle. Maybe I was one of those conservative professional types planning to ski on my day off. Maybe I was about to tell them how ignorant they are and explain globalization to them.

Instead, I told them I was curious about them, because they didn't look like the typical anti-Bush crowd. For one thing they were veterans. ("What'd he ever do for the veterans?" one snapped.) For another, they were religious. So I asked the question I'd been wondering: Had they opposed him all along, or did something change their minds.

They claimed they'd never liked him, though some denied being Democrats. One said he'd voted for Reagan both times and Bush Senior the first time. Nobody admitted to voting for W in either 2000 or 2004. One of the guys who had called for impeachment said the country was in for trouble because of Bush. "It's not so important for guys like me. I'm not going to live that long anyway. But young guys like you, you're going to see hard times. Everybody's against us now. Two billion Muslims. And Europe. They hate us now too."

I didn't correct his overestimation of the Muslim population, which is closer to one billion, and I made a mental note to start hanging out with more people who talk about "young guys like you."

They wanted to know about me. Was that a New York accent? No, Illinois. (I wish I'd mentioned that I picked it up at college, and that I'd grown up talking like Larry Bird.) I confessed to being a writer, and the guy with the submarine jacket said one of his friends advised Tom Clancy on The Hunt for Red October. I admitted not being as successful as Tom Clancy. "So far," another one corrected me. "You never know."

The guy with the veteran's cap went out to the car and got a book to show me. It was about airmen who'd been shot down during World War II. He fumbled with the pages and finally let me turn to page 181, where he was an unrecognizably handsome young man with his crew. He was like a movie star in those days, another guy commented. "It's the moustache," I said. "You were clean-shaven then." He had been a gunner in one of the ball turrets of a B-17. I told them my uncle had also been a turret-gunner. But I guessed wrong that he'd been in a B-25, which they said didn't have them. Was he in England or the Pacific? England, I said. B-17, they concluded.

They asked me what I wrote, and if I'd been published. I told them I'd published a couple articles about fundamentalism for a Unitarian magazine. That gave the submarine guy permission to tell me about his experience of the Holy Spirit, which was a story I think the other guys had heard. They drifted into a separate conversation, and then a couple of them left. Eventually, I thanked the remaining guys for including me in their conversation, and then I left too.

I never know how much to read into these anecdotal experiences. This one would be more impressive if they'd been Bush voters who had turned against him. But who knows, maybe some of them changed their memories when they changed their minds.

The significant thing, I think, is that in the mission-accomplished era I didn't hear anybody say a word against Bush in public. I didn't do it myself unless I knew who I was talking to and was sure nobody else was listening. On the night of Shock and Awe, I was in liberal Massachusetts. Pro-war demonstrators were waving signs on the Bedford Common, and passing cars honked their horns as if our team had just won the state championship. In those days, it seemed as if everyone were for Bush and for the war. If you weren't, there was something wrong with you.

I think that has turned around. These days it's the people who are for Bush and for the war who must be feeling isolated. If any of them were within earshot at Panera, they didn't speak up.