U-2 FLIGHTS, PRESIDENTIAL POWERS, AND THE CONSTITUTION

[Bob Sheridan]

Sean Wilson wrote:

"It's time for this generation of academic culture to let go of the 
political drama that shaped its social learning (watergate, nixon) and 
live in the world that exists today. Like the great depression, 
terrorism has simply created the need for policy innovation, plain and 
simple. The result is that ancient rituals of the liberal state in the 
area of criminal procedure are simply less important to the nation right 
now than making sure that regime-sponsored clandestine networks are not 
going to poison water supplies, blow up levies, launch chemical 
weapons or fly planes into nuclear facilities. Just as I wouldn't want 
Miranda or the right to counsel to apply to enemy coverts, I sure as 
heck do not want warrant logic either. Leave national security problems 
to national security standards, and criminal law problems to criminal 
procedure."

***
Sorry, but I don't think it's possible to forget what we lived through, 
the things which taught by their example what to try to avoid and what 
to keep strong.  To adopt the prescription would be like trying to give 
up our national identity.  We might just as well forget the stories of 
our revolution and of the relationship between races.  Why would we want 
to do that?  That's what makes us us.

As far as formulating new policy to meet new needs, that's a different 
proposition.  It needs to be done, but if it can't be done consistent 
with the values that define us, we're a different, and not necessarily a 
better people.  I'm having difficulty regarding hard bought legal 
guarantees as meaningless rituals.  Whenever I'm in criminal court, 
which has been often over the years, and see the routine waiver of the 
right to be informed of the charges (because the attorney and client 
have chatted about them in advance) or of the appearance of the 
defendant where it is voluntarily waived (for similar reasons), I'm 
tempted to think that the dispensed-with formality is just that, a 
ritual, until I think of the Guantanamo detainees.  Then I realize that 
what we so take for granted that we routinely waive it is a matter of 
life and death for those who don't have the protection.

rs


> ... only if you assume that the capacity to strike is a 
> fixed constant. That is, each time would be a plane, a car bomb, etc. 
> If this was all that terrorism could muster, it would be no different 
> than organized crime, and there would be no reason to be using 
> national security logic to defend the country from these sorts of 
> attacks. Indeed, under such a scenario, statutory law would be king.
>  
> However, the capacity to strike is not a fixed constant. As many in 
> the intelligence community know, there were credible threats after 
> 9/11 that terror networks had suitcase nuclear devices and that the 
> possibility of dealing for chemical weapons and WMD were quite strong. 
> Indeed, had there not been a massive national security response -- if 
> cruise missiles had been the only thing America did to these people -- 
> there is no reason to think that the capacity to inflict mass 
> destruction on a large and awesome scale might not have been realized. 
>  
> Honestly, I am amazed at all of the hand-wringing I've seen over this 
> issue. I had not realized what a bastion of faith the warrant ritual 
> is to liberal academics. As a criminal defense  lawyer, I had always 
> found the warrant procedure to be rather ridiculous. It 
> rarely protected anyone. The judges in these secret courts do not deny 
> these warrants. The reason we need to bypass this procedure is purely 
> rational: (a) because of the nature of the problem, some searches need 
> to be made on hunches and computer profiling (the utility derived from 
> this far outweighing its cost) and (b) the program needs the freedom 
> to make decisions unencumbered by an operational ritual invented 
> in common law England and transported to the colonies for use there in 
> the game of cops and robbers.
>  
> Don't get me wrong; some rituals of criminal procedure -- like the use 
> of juries -- are indeed quite important in altering the balance of 
> power between the people and its state. But we have spent the better 
> part of the last half of the 20th century demolishing the warrant 
> edifice in criminal law. Excuse after excuse has been allowed by the 
> Court. It would be simply ridiculous now to so exalt this inflexible 
> practice as to require the President's national security operations to 
> abide by it as though one could not have a legal nation state in its 
> absence. Honestly, I cannot see why liberal academics are so fixated 
> on this. This is in fact why I detest liberalism as a political 
> philosophy. (I detest conservatism, too). All of this huffy puffy 
> reactionism directed at something so nonsensical without first having 
> a proper assessment of the utility derived from the security policy 
> and whether this utility far outweighs its social cost.      
>  
> I continue to believe that if Democrats were smart about this, they 
> would find better ways to spy instead of allowing republicans to 
> monopolize the anti-terror market. I remind people that living 
> constitutionalism is about to die a major death on the Court if the 
> next presidential elections are not won by Democrats. A recent poll 
> found that only 16% of the country classifies itself as liberal. It's 
> time for this generation of academic culture to let go of the 
> political drama that shaped its social learning (watergate, nixon) and 
> live in the world that exists today. Like the great depression, 
> terrorism has simply created the need for policy innovation, plain and 
> simple. The result is that ancient rituals of the liberal state in the 
> area of criminal procedure are simply less important to the nation 
> right now than making sure that regime-sponsored clandestine networks 
> are not going to poison water supplies, blow up levies, launch 
> chemical weapons or fly planes into nuclear facilities. Just as I 
> wouldn't want Miranda or the right to counsel to apply to enemy 
> coverts, I sure as heck do not want warrant logic either. Leave 
> national security problems to national security standards, and 
> criminal law problems to criminal procedure.
>  
>     
>  
>
>
> */Bob Sheridan <bobsheridan at earthlink.net>/* wrote:
>
>
>     Am I glad that Pres. Eisenhower, the former general, instituted
>     the U-2
>     program, which lasted until U.S. Lt. Col. Gary Francis Powers was
>     shot
>     down in 1960 when Russian missiles finally developed climbing
>     power? You
>     bet I am. The Cold War was played for far higher stakes than the
>     Trade
>     Center, with no disrespect intended to them and those. Mutually
>     assured
>     destruction, mad as it was, existed for a reason. Gaddis is
>     wonderful,
>     incidentally, on the Cold War psychology, including such paradoxes as
>     that total nuclear war would eliminate the goal of such a war when
>     killing the enemy meant suicide for yourself.
>
>
>
> Dr. Sean Wilson, Esq.
> Penn State University
>
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