On April 3, late on a Friday afternoon, the Justice Department asked a judge to dismiss a lawsuit filed against the National Security Administration for unlawfully spying on Americans’ telephone records. In its brief, the Justice Department made two arguments:

First, it claimed that allowing the lawsuit to proceed would result in the disclosure of “state secrets.” This argument was disappointing, although not surprising. The Obama Justice Department had made that claim once before back in February, in response to a suit brought by victims of extraordinary rendition. In doing so, the Obama team was following the lead of the Bush administration, which made so many similar claims that candidate Obama criticized them as evidence of excessive government secrecy.

But its second argument was surprising: the Obama Justice Department argued that the government has “sovereign immunity” when it comes to domestic spying. That’s right, sovereign. Like the guy our founding fathers rebelled against for unreasonable searches and seizure of Americans’ property. In essence, the Justice Department was saying that Americans have no right to sue the government for alleged illegal surveillance.

Huh? What about the Fourth Amendment?

Realizing that the Obama honeymoon was definitely over, I went down to the Brady Briefing Room last Thursday to get some answers. This was my exchange with Press Secretary Robert Gibbs:

ME: Last Friday, the Justice Department invoked the state secrets privilege in asking a judge to dismiss a civil suit filed against the National Security Administration regarding its domestic surveillance program. And in its brief, the Justice Department argued that Americans have no right to sue the government for alleged illegal surveillance.

Does the President support the Justice Department’s positions in that case?

MR. GIBBS: Yes, absolutely. It’s the — absolutely does. Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.

ME: Before he was elected, the President said that the Bush administration had abused the state secrets privilege. Has he changed his mind?

MR. GIBBS: No. I mean, obviously, we’re dealing with some suits, and the President will — and the Justice Department will make determinations based on protecting our national security.

Q So he still thinks that the Bush administration abused the state secrets privilege?

MR. GIBBS: Yes.

The state secrets issue is important, but what’s absolutely mind-blowing here is that, according to Mr. Gibbs, President Obama believes that citizens whose 4th amendment rights have been violated by the government have no legal recourse.

Which is completely wrong, of course.

As George Washington School of Law Professor Orin Kerr pointed out recently at the Volokh Conspiracy, section 2712 of chapter 121 of the Electronic Communications Privacy Act (ECPA) of 1986 is entitled “Civil actions against the United States.” It states that:

Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title…may commence an action in United States District Court against the United States to recover money damages.

It can’t get any clearer than that.

The Justice Department’s completely erroneous argument rests on a quotation taken out of context. The crux of their argument is this:

In the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707.

But if you read section 2520 (in chapter 119) and section 2707 (in chapter 121), it is readily apparent that the phrase “other than the United States” is there only because those sections specify penalties for when the law is violated by someone other than the United States (e.g., a state or local government). Section 2712, on the other hand, specifies penalties for violations of the law by the United States. The penalties are different in the two situations. And section 2712 explicitly applies to both chapters of the ECPA (the ECPA has two parts: chapters 119 and 121 of U.S. Code 18).

Hey Professor Obama. Somebody needs to go back to law school.

[Note: The preceding is the original, “raw” story I wrote and submitted last Thursday to Raw Story, who rewrote it and published it last Friday as White House: Obama ‘absolutely’ stands behind effort to throw out warrantless wiretapping suit.]

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The New York Times, in a story with one of those headlines containing words one never expects to see in relation to one another, is reporting that the director of a La Scala opera based on the Al Gore film, “An Inconvenient Truth,” has resigned over creative differences with the American poet writing the libretto.

The story, “Friedkin Quits ‘Inconvenient Truth’ Opera,” just gets weirder from there. The director is William Friedkin, whose previous credits include “The Exorcist” and “The French Connection,” either of which might be perceived as too kinetic to foreshadow a successful La Scala debut directing an opera about climate change. (Starring Alan Rickman as Global Warming?)

The composer said the director was leaving for personal reasons and not from any friction, but at the same time slammed Friedkin for possessing a special-effects mentality. Probably they couldn’t get together on choreographing the chase scenes.

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The news is all around that George W. Bush will be writing a memoir focused on 12 difficult personal and policy decisions in his life. It cannot be an accident that the format so closely apes that of John F. Kennedy’s Pulitzer Prize-winning “Profiles in Courage,” which featured the stories of eight U.S. senators who embodied Kennedy’s notions of integrity and courage.

Bush has, though, in his own inimitable fashion improved on the Kennedy format, with fifty percent more stories while reducing Kennedy’s cast of eight, each with his own confusing name, to a cast of one.

Each of Bush’s stories will no doubt be rendered in what he described to a Canadian audience this week as his own “authoritarian voice.”

During the same speech, Bush said that president Obama “deserves my silence.” As do we all deserve a respite from your voice, George, save that it come in a court of law.

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The Devil in the White City, by Erik Larson
The 42nd Parallel, 1919, and The Big Money (the U.S.A. trilogy) by John Dos Passos

The turn of the twentieth century is an interesting time in American history, as the public and political mind finally caught up with the reality of the industrial revolution. It is, I’m given to understand, largely a story of Labor vs. Industry, of booming growth and rising aesthetic standards that still left an awful lot of ugliness behind it. In a lot of ways, I think of this as the dawn of modern America, of modern finance and war anyway, a modern press and modern industry, modern expectations of technology development. I see a familiar mindset budding here anyway, and these books do something to capture it at the moment. The Devil in the White City is easy non-fiction, sort of airport literature, but I thought that Larson’s perspective was a clever one. U.S.A. is an ambitious American novel, one of the canon.

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George W. Bush’s public statements have been absurd for so long, that it’s almost poor sport to continue to skewer them. Nevertheless, because I haven’t done so on BTC News in quite a while, and because this may be my last opportunity, I can’t resist one last shot. For auld lang syne, as it were.

When Bush told ABC’s Charlie Gibson last month that the “biggest regret” of his presidency was “the intelligence failure in Iraq,” and that he wished the intelligence “had been different,” he left a lot of people scratching their heads. Why would a guy who twisted, ignored, and fabricated intelligence in order to justify his invasion regret it, or at least claim to?

If he had paid attention to the correct intelligence, such as Joe Wilson’s report from Niger, the invasion would not have been politically possible. So did he mean that he regrets the invasion? That doesn’t appear to be the case, since he’s never wavered from asserting that in spite of the faulty intelligence, removing Saddam Hussein from power was the right decision. And when Gibson went on to ask whether he would have invaded anyway, knowing that there were no WMDs, Bush replied, “That is a do-over that I can’t do.”

So how (and why) would he have liked the intelligence to be different? He can’t mean that he wishes Saddam had actually had weapons of mass destruction—in which case the invasion would have been justified by the mass slaughter of our troops as they headed toward Baghdad—or can he? That seemed to be the implication when he said a little later in the interview that one of his greatest disappointments was “no weapons of mass destruction…in Iraq.”

I wanted to ask the White House about this in December, but back then Dana Perino wasn’t talking to me. When I went back this Wednesday, however, she did. Here’s our exchange:

ME: The President has said that the biggest regret of his presidency was the Iraq intelligence failure, and that he wishes the intelligence had been different. But he’s also said that even with the faulty intelligence, his decision to remove Saddam Hussein was the right decision. If the intelligence had been different, though, isn’t it true that he would not have been able to make that decision? So why does he consider the faulty intelligence his biggest regret?

MS. PERINO: As the President has said before, you don’t get do-overs in the presidency. You act with the information that you have, and he thinks it was the right thing to do.

She ended the briefing at that point, so I wasn’t able to point out that she hadn’t answered my question.

But in Wednesday’s Doonesbury, fictional Fox reporter Roland Hedley asked Bush a very similar question:

HEDLEY: Mr. President, you’ve said that your only regret is the poor intelligence you received about WMD’s in Iraq. But since you’ve also claimed you would have invaded anyway, why do you regret that the intelligence was poor?

PRESIDENT BUSH: Why do I regret it? Because of my integrities!

HEDLEY: Which ones, sir?

PRESIDENT BUSH: Compedance! Accountancy! The pie you put on mom’s that love freedom!

HEDLEY: Wow. I guess that says it all.

I agree. That’s probably the best answer we’re going to get.

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Naked Economics, by Charles Wheelan
The Prince, by Niccolò Machiavelli

This month takes us to a couple of tell-it-like it is versions of socio-economics, from Machiavelli’s stark discussion of what no one wanted to say about politics in 1512, to Wheelan’s comforting discussion of what everyone wanted to say about Capitalism in 2002. The Prince is written as a primer to young rulers, an alarmingly honest and practical instruction manual to supplant the Christian humanist lessons that new princes might normally receive at that time. The stated goal of Naked Economics is to break through the drear of the undergraduate study, cast off the bowties of the professorial set, and present the field of economics as the exciting and intuitive subject it actually is. Maybe we all imagine ourselves princes now. Or something.

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The way I understand it, mostly from listening to Bob Dylan songs of a certain vintage (“Already confessed/Don’t need to confess again”), once you’ve been washed in the flavorful blood of the Lamb you’re guaranteed passage to Heaven barring a renunciation of it all. Doesn’t matter what you do or say so long as you cling to that ticket. There must be some junkies in the flock, and Heaven is as Heaven does, so is it mountains of China White for the addict of (and to) faith? Heaven is no dirty needles and no cut dope? or is the addiction cured on the trip up? What if you don’t want to be cured? or can you get cured and just enjoy the stuff as you get the urge, with no unpleasantness between indulgences? or is the whole experience a natural high surpassing the pale earthly imitation, which is to ask if the residents of Heaven are perpetually stoned.  

Just asking. 

Incoming economics adviser and treasury secretary Lawrence Summers and Tim Geithner, respectively, should be required to drown Robert Rubin, the extremely wealthy and clueless-at-crunch-time Citibank chair and former Clinton treasury secretary under whose wing the pair flourished. This is to demonstrate that they’re not going to do for the country what their mentor did. And it would so demonstrate because while it’s not exactly illegal to repeatedly drown someone and then resuscitate them, it’s still illegal to go all the way; Summers and Geithner would have to resign upon killing Rubin, maybe, and might even become the first government officials in 200 years to go to jail over a matter of conscience, sort of.  

Probably not, though.  

Ken Silverstein at Harper’s notes that the windfall profits tax Obama proposed to levy against record oil company rakes has been disappeared from the transition team’s web site. My policy of ignoring the campaigns of both candidates in favor of whatever I could make up about them left me with no idea that the tax played a major role in Obama’s campaign but even if I had known, its consignment to the ash heap of campaign promises would have left me unmoved—the president-elect remains in my view the only president whose memoirs will almost certainly outshine his four-year tenure in office. He might be the smartest president since his public policy soulmate, the demented Richard Nixon, but he’s without question the best writer to hold down the job in a century or so.  

The fascination that Rudyard Kipling holds for certain polemicists and functionaries among the neoconservative crowd has long been the object of mockery here at BTC News. Imagine my shock, then, at running across a late poem (1927; Kipling died in 1936), The Gods of the Copybook Headings, that manages to summarize our current economic difficulties in only four lines.

With the Hopes that our World is built on they were utterly out of touch,They denied that the Moon was Stilton; they denied she was even Dutch;They denied that Wishes were Horses; they denied that a Pig had Wings;So we worshipped the Gods of the Market Who promised these beautiful things.     

You go, Rudyard. Too bad he wasn’t around to counsel Alan Greenspan and various members of the Obama economic team. Who could have guessed?

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The Dharma Bums, by Jack Kerouac
Fear and Loathing in Las Vegas, by Hunter S. Thompson

Since Weldon just mentioned Hunter Thompson, it looks like I’d better act quickly. This month’s book review features the man’s opus, which I’ve casually paired against one of the novels of an earlier, and equally famous, seeker of refuge (and, as it happens, local son), Jack Kerouac.

Although their aesthetics are worlds apart (and although I couldn’t resist the title), I hold Thompson as a worthy companion read for the beat writer. I like even better to put these novels in a broader arc, and the antecedant that leaps most immediately to mind is Jerome K. Jerome shipping friends around at the turn of the last century in different conveyances. (Were I more ambitious about these of reviews, I’d take on another of Mr. Jerome’s for this series, but there’s only so much of that sort of thing I’m willing to take at a time.) Each consists of the same thinly fictionalized autobiography; each is presented with similar mixtures of escape, male bonding, comedy, and philosophical interjections. The escape is for the characters, and the hideout isn’t so much the wilderness as it is civilization’s fringe, not a matter of pitting brawn against the savage forces of nature, but rather a retreat to a place safe enough and independent enough to explore the world from the writer’s own perspective. Over the arc of these novels, this required increasingly drastic measures for the getting away. Late Victoriana could be ditched in a comfortable outing down the Thames. Kerouac needed the deep woods and old weird America to hide himself in, and only thirteen years later, it took Hunter S. Thompson copious amounts of drugs. I also like imagining this progression of philosophies, which are poked in as wistful or wondering asides, and over the intertextual century, there is a growing refutation of the status quo: from ambivalent glimpses of the human condition, to an escape from Western philosophy, to, in Thompson’s case, a horrified rebuke of it. Read the three of them together, perhaps, as commentary on how invasive society has become (and how quickly).

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Not.

George W. Bush bristles at any attempt to assess his presidency while he’s still alive, never mind in office. By the time history has judged him, he says, we’ll all be dead. But everyone who judged his presidency a disaster before it began — for me the clincher was his disappearance and ashen-faced return in the first few days when Florida was in doubt — was right. I don’t see any reason to give Barack Obama any more of a pass than I gave to Bush, or any more of a pass now that he’s won the election than I gave him when he was only running.

I should add, though, that Obama may well prove to be the most personally interesting president since Nixon, with whom he has much else in common. He won’t be as imaginative as Nixon was, and all the lawbreaking has been taken care of by the Bush administration, and he has run to Nixon’s right on several important domestic issues, but I suspect they would recognize one another even in the darkest bar. I wish Hunter Thompson were alive today with his talent intact; he could say for sure.

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This series of CD compilations started with an encounter with the Los Angeles Junior League and has since Frankensteined its way into an independent being from another planet. The first and the second CDs consisted entirely (I think) of music acquired through the good offices of the Santa Monica Library and its music buyer, about whom I could speculate but won’t other than to say the musical group with the most titles (six) in the Rock collection is the Indigo Girls. I have groused about this elsewhen, but really: six Indigo Girls and no Velvet Undergound?

Not to get sidetracked … the third CD was mostly my own music, which I visited over the weekend and about half of which I was able to transfer to the computer hosting the SML collection. The fourth one is all my stuff. I can’t tell you what a relief it was to hear music that I deliberately sought out and purchased (mostly) rather than settled for at the library. So I added about 150 CDs to the mix, which affords me considerably more freedom since I don’t like to duplicate artists on or tunes across compilations.

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