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Jennifer Van Bergen: The JVB Line
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January 28, 2008
A Campaign Without Viable Progressive CandidatesBy JENNIFER VAN BERGEN
With Kucinich out of the race, there are NO viable candidates left.
I'm sorry, I will not vote for somebody who compromises his or her morals and betrays his/her constituents and the US Constitution, not to mention international laws.
We are at a point in history where we cannot accept half measures any longer. Our world is in grave danger , we are torturing people, we are violating every law of humanity there is, our economy is so bad -- we don't realize -- the U.S. could very well go the way the Roman Republic did . . . and we are talking about whether Obama or Hillary is worse than the other . . . or significantly better than who, Huckabee, Ron Paul?
Sorry, not me. I'm not buying anymore. I'm with Kucinich all the way. I'm going the way he goes. He is the only one willing to tell the truth and keep on fighting for it. He is the only one with integrity or morals left.
If he's not on the ballot, I don't vote. But if I can join his wagon train, I will.
I don't recognize what I thought was my country, my homeland -- in the best sense of the word. I have spent many years, both as an adult and as a young  child, living overseas, but it was always THIS country that was my home.
But I don't know if I want to be here any longer.
The dollar is dying. Does anyone here realize what that means for you and me? It means that if you are struggling now, you may well be in abject poverty soon. If you think you are powerless now, what then? Who listens to a person begging for food? Who listens to the disenfranchised? Who listens to a person who is suffering?
It means if you have health problems now, you may well die from lack of medical care sometime in the next few years. ( See here about what's happening in the Congo. Most of the 45,000 deaths PER MONTH are medically preventable.)
I'm not even bringing up what's happening in Gaza.
Who do we think we are?! Who ARE we?
It is not enough to wave a sign on a street corner. It is not enough to vote -- especially when we don't even know if the votes will be counted. It is not enough to write op-eds or articles, letters to the editor, letters to our congress-persons, to speak before crowds, big or small, to march through the streets or travel to march in D.C. or elsewhere.
It is not enough to circulate news we already innately know or views we already agree with. Not enough even to argue face-to-face with our opponents or to cry out for impeachment. It's not enough to save electricity, grow our own food, stop driving a car. None of it really matters now. It's too little, too late.
Believe it or not, I'm not a pessimist. I am inherently an optimistic person. I believe that out of the ashes can come a brave new world.
But I also believe that there is such a thing as FINALITY. Stars can explode. Planets can die. Species can cease to exist. Forever. Obama and Hillary are going to be swallowed by this, just as well as Bush and Cheney. And the rest of us sorry and weary souls.
The only thing left is to be true to yourself and to your highest values. Live as honorably and as truthfully as you can, as one lone individual. Do what good you can and spend time with people who have integrity. Do no harm to others or to the environment; protect and preserve the Good, the True, and the Beautiful as best you can.
Because when the shit hits the fan, the laws our officials flagrantly violate now in our name, for the benefit of the national security state, will no longer matter on a day-to-day basis.
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A Gonzo Argument: Gonzales' Defense of NSA Domestic Spying |
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By Jennifer Van Bergen
O ne wonders how any rational person could be fooled by the absurd argument that was put forth by the Justice Department in January about the Bush-authorized secret NSA spying program. It's an argument that has been made in bits and pieces and in so many words by a variety of Justice Department lawyers and here and there by Attorney General Alberto Gonzales.1
The argument is never fully stated by any of these officials, but put the pieces together and it would read something like this: "We don't think our secret program which spies on US citizens is illegal (even though it violates a federal law), because the President can do what he wants anyway, but we're going to play nice and get court approval for the law to make you happy -- but it's really so you can't argue it's illegal anymore, although, if the President wants to, he can reauthorize the secret program at any time without court approval."
The only legitimacy that argument has is this: it is legitimately crazy-making. In terms of argument, it is circular and absurd.
Of course, when it is laid out in plain language and in sequence, the absurdity becomes clear. But the absurdity is harder to discern when officials hang the argument on emotionally loaded terms like "national security" or "war on terror," or create bright-line assertions in their favor where the Constitution declines to (like by saying the President has the "inherent" authority to wiretap when such authority is nowhere set forth in the Constitution) , or set up false dilemmas, such as the supposed choice between the NSA program and federal law (e.g., the NSA program has the "speed and agility" needed, but federal law doesn't).
Here are the plain facts:
The program was first revealed in a New York Times article in December 2005, 2 although Bush soon admitted he had secretly and unilaterally authorized it, without court or congressional approval, shortly after 9/11. That is, Bush had secretly authorized the National Security Agency (NSA) to spy without a warrant on communications that admittedly involved American citizens.
On its face, this violates the Fourth Amendment right to be free of unreasonable searches and seizures -- which has for centuries required that law enforcement show probable cause of criminal activity in order to obtain a warrant.
According to former presidential advisor John Dean, when Bush admitted to having authorized the secret program, he became the first president to have admitted to an impeachable offense.3
On January 17, 2006, only weeks after the media revelations, the American Civil Liberties Union filed a lawsuit challenging the program. In August 2006, a federal district court ruled that the program indeed violated the First Amendment, the Fourth Amendment, and a federal law known as the Foreign Intelligence Surveillance Act, or FISA, which provides procedures and requirements for executive branch electronic surveillance collection. The Justice Department appealed to the Sixth Circuit Court of Appeals.4 (Arguments were heard in that court on January 31, 2007. The decision is pending.)
The Gonzales Letter
On January 17, 2007, a year to the day after the ACLU filed the lawsuit, Attorney General Alberto Gonzales announced in a letter to Senators Leahy and Specter that -- after five years of evading court approval -- "orders" for the program (called the Terrorist Surveillance Program, or TSP, by Gonzales) had been approved by a FISA Court judge and thus the President had determined not to reauthorize the program upon its expiration.5
This letter was issued less than two weeks before arguments were scheduled to be heard on the appeal of the case. Among other sneaky legal tactics -- including that the case cannot be heard because of "state secrets" and the plaintiffs cannot sue because they can't know whether they've been targeted or not, which, of course, they can't know because it's secret -- the Justice Department argued that the case was moot and should be dismissed since the NSA program, having been approved by the FISA Court, was now "legal."
In other words, Justice says that because a FISA Court judge approved orders under the program, even though Bush refuses to acknowledge any limitations on his authority to reauthorize it, nobody can challenge it.
One blogger on the ACLU blog noted: "The voluntary cessation of an illegal action does not dissolve its illegality."6
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Review: Aaron Burr: Conspiracy to Treason |
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Review of Aaron Burr: Conspiracy to Treason
I am going to have to differ with my fellow reviewers in their opinions both about Melton's book and about Burr himself.
Melton is an attorney and a law professor. He is also the author of another book that I enjoyed a great deal (and have reviewed also): "The First Impeachment." However, I don't feel that Melton's Burr Conspiracy book contributes much to the existing opinions on Burr, the Burr Conspiracy, or the trial.
While the book is well-researched and well-written -- and as a fellow historian, scholar, writer, book author (and also someone with a law degree), I understand the difficulties in doing that and appreciate Melton's work generally -- I have several complaints about this book, which I think are central to the issue of who Burr was and what he was up to. To be fair, my complaint is not solely against Melton but against his sources -- which, to some degree, is not Melton's fault.
Before I get into my complaints, though, let me mention that the best discussion of the Burr trial I have seen to date is in volume 3 of Albert J. Beveridge's "The Life of John Marshall" (available on Amazon).
Melton, as a practitioner of the discipline of law, knows how to find and use primary and secondary source material. However, in this book he relies heavily on Thomas P. Abernethy's "Burr Conspiracy," while almost completely ignoring Walter F. McCaleb's book of the same name. In my view, this is a huge omission, since I feel that McCaleb's book is the most important book on the conspiracy, unraveling as it does many of the mysteries of Burr's intentions in that period.
Secondly, Melton also relied heavily on Dumas Malone's multi-volume biography of Thomas Jefferson. Malone was a man who excused a great deal of Jefferson's criminal behavior with a virtual wave of the pen and was strongly biased against Burr.
While Melton does also cite to various biographies of Burr (including Parton, Davis, Daniels, Todd, Lomask, Wandell & Minnigerode, and Parmet & Hecht -- nearly all the standard ones) and to Mary-Jo Kline's important collection of "Political Correspondence and Public Papers of Aaron Burr" (as well as to much other solid primary source material), he does not cite at all to Roger G. Kennedy's ground-breaking, if rambling, book, "Burr, Hamilton, and Jefferson: A Study in Character."
The reliance on Abernethy and Malone and the failure to study and include McCaleb and Kennedy constitute, for me, a major flaw in Melton's work. I believe this omission leads to a perpetuation of speculations and misconceptions about Burr, and since Melton has more credibility because of his credentials, this lends more weight to the inaccuracies.
Many Amazon reviewers note (as did Melton) that nobody will ever know what Burr's intentions were, that Burr was brilliant and charismatic, that "the best and the brightest are always fallible," that Burr lacked principles, that the bulk of Burr's letters never surfaced, that public opinion at or after Burr's trial "overwhelmingly concluded" that Burr was "up to no good," that the "evidence strongly indicates that [Burr] was the ringleader in a plot to establish an independent nation" in the West, and so on.
I stand somewhat alone in my disagreement with each of these statements. I believe Burr's intentions are discoverable. I am tired of hearing that Burr was brilliant and charismatic and lacked principles. Burr was intelligent and charming, but the brilliant/charismat ic/unprincipled combination is grossly misleading and is used to justify all manner of unsubstantiated speculation and ill opinion about Burr.
The evidence does not "strongly indicate" that Burr was a "ringleader" in a "plot to establish an independent nation." Burr was merely one in a line of many -- including, by the way, Alexander Hamilton, and many others who were supported by Jefferson (both before and during his presidency) and his successors -- who wanted to "liberate" Spanish Mexico (and possibly even South American states), which included at the time, New Orleans.
Burr's plan was, if there was a U.S. declaration of war against Spain, to invade and liberate. He later said that Jefferson had sanctioned this plan. Absent such a declaration, Burr planned to make a (perfectly lawful) settlement north of New Orleans. The rest of his "intrigues" with agents of Britain and France were mere efforts to obtain funding (see McCaleb on this). He told those people what they wanted to hear.
Many before Burr had sought or obtained foreign funding for such expeditions( including George Rogers Clark, mentioned below, and U.S. Senator William Blount, whose enterprise some say VP Jefferson was secretly supporting). None were brought up on charges of treason. Some Westerners were even in Spanish pay -- including Jefferson's saw, James Wilkinson, and other eminent western citizens who were trusted by several Presidents -- and none were charged with treason.
But even if Burr did want to establish an independent nation, Jefferson himself had once verbally sanctioned the separation of the West from the East and the former's independence from the United States. On this issue, Burr was really on the tail end of a long line of westerners who wanted independence from the U.S. -- or who already felt they were independent. This included George Rogers Clark who was sponsored by then Virginia governor Thomas Jefferson on various covert missions, including an unlawful exploration of what was then the Spanish west. (See Kennedy's book.)
Much of Burr's personal correspondence apparently went down with his daughter at sea, but this was NOT MOST of his correspondence. There are 11 reels of microfilm of Burr's letters and another 16 reels that contain his orderly books, journal, and court documents.
Public opinion about Burr during the trial was not overwhelmingly against him. In fact, he had a tremendous amount of popular support, but with a President as your enemy, few friends will risk their careers to ally with you. Thus, friends who believed in him were afraid to stand up for him.
After all, Jefferson declared Burr guilty and ordered (or supported Willkinson in ordering) him to be taken dead or alive before his arrest or trial occurred.
While Burr may be the most famous of those Jefferson persecuted, Burr was not the only one whose life was ruined by Jefferson (or Wilkinson, for that matter -- and in this case, Burr had both men plotting against him, both knowing they were unjustifiably and illegally doing so). The full story of all Jefferson's victims has not yet been written, but for those interested in exploring the issue, I suggest David Leon Chandler's "The Jefferson Conspiracies: A President's Role in the Assassination of Meriwether Lewis," and Leonard W. Levy, "Jefferson and Civil Liberties: The Darker Side," as well as Kennedy's book mentioned above. See also Richard Zacks "The Pirate Coast: Thomas Jefferson, the First Marines, and the Secret Mission of 1805."
Wilkinson's victims, by the way, included several assassinations and/or attempted assassinations.
Like the story of Jefferson and Wilkinson's many victims, Burr's story has not yet been fully written. While he was certainly a complex man, and while his "conspiracy" confusingly led in several directions at once, both the man and the story are discoverable. I hope one day to contribute further to these understandings, but in the meantime, I hope readers can separate fact from mere speculation or inference, including such as arises out of reliance on biased sources, which is the case in Melton's otherwise well-done book.
Jennifer Van Bergen, J.D.
Author of "The Twilight of Democracy: The Bush Plan for America" (Common Courage Press, 2004), "Archetypes for Writers: Using the Power of Your Subconscious" (Michael Wiese Productions, 2007), "Aaron Burr and the Electoral Tie of 1801: Strict Constitutional Construction" (1 Cardozo Public Law Policy & Ethics Journal 92 [2003]), "In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws" (2 Card. Pub. Law Pol. & Ethics J. 107 [2003]), and "The Dangerous World of Indefinite Detentions: Vietnam to Abu Ghraib" (37 Case Western Reserve Journal of Int'l Law 449 [2006]).
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The Further Dangers of Secrecy |
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The Further Dangers of Secrecy: A Federal District Court Interprets the Foreign Intelligence Surveillance Act to Allow Spying on Those Who Are Neither Spies Nor Terrorists
By JENNIFER VAN BERGEN
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Tuesday, Sep. 05, 2006
Last December, a New York Times article revealed the existence of an NSA domestic spying program. Also that month, the Bush Administration admitted that, indeed, the NSA was wiretapping Americans' overseas phone calls, when the calls were placed to phone numbers or people the government suspected of having a terrorism connection. (A recent decision in a lawsuit against AT&T, which cooperated in the program, indicates that the program may have even wider reach.)
Previously, President Bush had claimed that his Administration did not wiretap without "getting a court order before we do so" - presumably from the court created by the Foreign Intelligence Surveillance Act (FISA), enacted in 1978 to regulate and limit presidential spying. The Administration' s December 2005 admission, however, showed that, in fact, it was bypassing the FISA Court - and bypassing Congress, which enacted FISA. As a result, many observers argued that the President had violated the constitutional separation of powers by infringing on Congress' territory, and potentially violated the Fourth and First Amendments as well, by infringing on people's privacy and rights to free speech and association.
It was in this context that an August 14 decision by Judge T.S. Ellis III of the U.S. District Court for the Eastern District of Virginia was handed down. If other courts follow this decision, then there may be little reason, anymore, for the Administration to even bother to bypass FISA - for the ruling broadens a critical definition in FISA to such a degree that one wonders whether the law offers much limitation any more. In so doing, the ruling betrays both FISA's intent, and, like the NSA program, the First and Fourth Amendments.
FISA: The Basic Fourth Amendment Problem
Before Congress passed the USA PATRIOT Act, FISA seems to have been fairly strictly applied, as was Congress' original intention, to investigations that involved primarily foreign intelligence. There was a clear division between criminal investigations, which required a showing - borrowed from Fourth Amendment jurisprudence -- of probable cause of criminal activity to obtain a warrant, and foreign intelligence investigations, which did not require that showing.
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