How "not so innocent" do you have to be to before you qualify for a warrantless search of your being in the world?

What ever happened to "consent of the governed?

Try and make yourself believe, to use a locution made famous by the incomparable Bob Somerby, who has been howling with disgust on a daily basis at what has been happening to this country of ours for longer than any of us, that a sitting Federal Judge could use the phrase, highlighted in the title to this post, to describe all of us who are American citizens, during a discussion of why the Bush administration is correct, and the current law wrong, when it denies this President the right to monitor, at will and without a warrant, every piece of communication by and between any of us American citizens, which the government can lay its digital hands on, and all this without having to have an a priori reason to be suspicious, and without oversight by a court, or by congress.

Man, they really meant it when they said everything was different after 9/11; what these guys saw in the horrifying collapse of those two towers, was a vision of end of the United States of America being that same democratic republic we, and much of the world, had come to know and love, or admire, or, at the very least, respect, to make a Rovian paraphrase.

You think I jest, or exaggerate? Read On.

Here is Judge Richard Posner in his very own words:

"A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security." link.

Give Posner credit for shinning some light on what it is, exactly, the renowned self-described conservative judicial movement is about, and for providing further evidence that what the current administration is allowing the NSA to do has some likely similarity to what Lambert and "philosophicus" are talking about here.

"Just for the limited purpose of protecting national security."

Think about that amazing phrase for a moment. So, as long as the stated purpose is rhetorically limited, the search, monitoring, eavesdropping, whatever they want to call it, the violation of the fourth amendment, that can be total and absolute?

We will be told to grant Judge Posner's genuine belief in what he is saying, but can a statement like that really be taken at face-value; should we really be ready to grant the integrity of the speaker, or the good faith in which the statement is made? How limited can the scope of national security be, when Oceana has always been at war with Eurasia?

Listen to what "Katherine," has to say at Obsidian Wings, as she describes, perfectly, the actual context of Judge Posner’s argument, which, somehow or other, he has managed to leave out:

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it's limited by the country's laws, but they've got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen--no need for a charge, no need for a trial, no need for access to a lawyer. What if they're found not to be an enemy combatant? We can keep them in prison anyway, and we don't have to tell their families they're alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don't need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes--if the President decides that we need to torture a prisoner for the war effort, it's unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was "unnecessary" but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That's the power they claim. At what point are we going to take that claim seriously?"

Spelled out like that, the attempted Presidential reach here is as startling as it is frightening, and I've quoted the passage in full, because I think Katherine has distilled in words which all Americans who have not sworn fealty to a right wing President, (yes, that would be "have gone to the dark side"), or to the movement that spawned him, can understand.

My advise, copy Katherine’s words to your hard drive, commit them to memory, carry copies of them in your pocket, be ready at any moment to present them to any fellow citizen who is danger of letting him or herself become confused by the inability of the SCLM to make clear what is being claimed by this Presidency, and what is at stake if we, the people, give into such claims.

Thank-you Katherine; thank-you Obsidian Wings. And to all of you reading this, don’t shirk, go read the entire post, and if you aren’t that familiar with the group endeavor that is Obsidian Wings, while there, do look around; you’ll be well rewarded.

To the question Katherine asks, I say, "starting this second, is not a second too soon."

And surely an important part of taking seriously this almost maniacally unAmerican Bush claim to power, one that usurps the authority of the courts and of congress, not to mention the way it makes hash of the very notion of separation of powers, is for all of us to start thinking about the upcoming hearings on the nomination of Judge Alito to the Supreme Court. Because the last bulwark against this executive power grab may just be a Supreme Court able to act independently, not only of President Bush, but also independently of the self-proclaimed conservative judicial movement, of which the right wing in this country is so proud.

I will save for a subsequent post, later today, my specific thoughts on how we might organize to help the Democrats be so bold as to use the filibuster to oppose Alito, and make no mistake, you can forget about so-called moderate Republicans joining Democrats, nor will the Green Party or Ralph Nader be able to stop this nomination, we either get the Democrats to filibuster, and that is what it is going to take, or Alito will be Sandra Day O’Connor’s replacement on the court. And please, let’s not ready our all-too-ready complaints about Democratic lack of spine. They’ve had plenty of spine recently, what they need from us is a grassroots demand which Democrats can point to, that, unlike Judge Roberts, Judge Alito answers detailed questions about his view of the constitution, and in particular, on the issue of presidential power, on pain of not being confirmed, however polite and "principled" is his refusal to do so.

I know it’s Christmas, but we have a week after the 25th to get something going in the left blogisphere, and if we don’t, we shouldn’t blame Democrats if Alito’s is the vote that destroys the separation of powers doctrine.