The Bush years were a nightmare for the shredding of the Constitution and our legal protections. Not counting the Executive Signing Statements, a number of pieces of legislation were passed. The most publicized of these were the U.S.A.P.A.T.R.I.O.T Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) and the changes to the FISA (Foreign Intelligence Security Act). The so-called "Patriot Act" had nothing to do with patriotism, but the naming was a brilliant public relations move. The changes to FISA - which had been confined to non-citizens and national security only, was expanded to include citizens and to allow mass tapping of communication hubs.

Many hoped that with the election of Barack Obama the protections and balance of government eroded under the Bush administration would be restored. That is clearly not happening.

Three things have happened of late which are significant in continuing the Constitutional and legal abridgements instituted under George W. Bush. Those are the continuing pursuit of U.S.A.P.A.T.R.I.O.T Act provisions which allow numerous types of surveillance, and covert activities of all people within the United States including: the continued indefinite detention of prisoners suspected of being terrorists (or connected to terrorists), and the continued use of Military Commissions.

Stop the Terrorists
The most recent and highly public use of the U.S.A.P.A.T.R.I.O.T Act was the capture of four "terrorists" who were going to blow up synagogues in New York - or so the story goes. Many of the reports of the foiled terrorist plot follow a story line similar to the one found in the NY Daily News (5/22/09) "NYPD, FBI heroes honored after foiling plot to bomb Riverdale synagogues." Here is a sample to give you the flavor.

The cops and G-men who busted a gang of homegrown terrorists before they could blow up two Bronx synagogues got a big pat on the back Friday from a grateful city.

"I feel safer in the city today than ever before," Mayor Bloomberg said at a City Hall ceremony to honor the heroes. "They have prevented what could have been a terrible loss of life."

Gov. Paterson called the plot "one of the most heinous crimes that has been [planned] in this city for a long time."

And Police Commissioner Raymond Kelly called the police and FBI response "a textbook example of how a major investigation should be handled."

Except that is not quite what happened.

You see, an FBI "informant" had infiltrated the terrorist cell and tipped off authorities about what was to happen.

The actual story is somewhat more sordid than brilliant work by the FBI and NYPD. From the NY Times "In Bronx Bomb Case, Missteps Caught on Tape:"

The case is the latest in a series in New York and around the country since Sept. 11, 2001, and sounded familiar in some ways. The investigation, for instance, began with the work of a confidential informant, who portrayed himself as an agent of a Pakistani terror organization, and who became a critical member of the men's plot.

The full nature and extent of the informant's role in facilitating the plot is unknown. In other cases, defense lawyers have sought to portray these informants as engaging in entrapment, suggesting they had, in effect, provoked and fueled the actions of their clients.

That man is now understood to have been Shahed Hussain, a former New York state motel owner who became an FBI informant in 2002 to avoid deportation to Pakistan after being arrested on fraud charges. Hussain appears to have met Cromitie at a Newburgh mosque where the plot to bomb Jewish targets was hatched.

With Hussain's help, the FBI was able to monitor every move made by Cromitie and the others. Hussain also provided the group with bogus C4 explosive and a fake Stinger missile and launcher supplied by the FBI. When the conspirators planted their dud bombs outside two Jewish targets on Wednesday night, the FBI was watching. The area was smothered with heavily armed Swat teams, the would-be bombers' exit was blocked and agents hauled them away in handcuffs.

The alleged terrorists, all US citizens, were arrested Wednesday as they laid what they believed were bombs -- in fact duds supplied by undercover agents -- outside a Jewish temple in New York's Bronx neighborhood, authorities said.

The stranger's behavior aroused the imam's suspicions. He invited other worshipers to meals, and spoke of violence and jihad, so the imam said he steered clear of him.

"There was just something fishy about him," Mr. Muhammad said. Members "believed he was a government agent."

Mr. Muhammad said members of his congregation told him the man he believed was the informant offered at least one of them a substantial amount of money to join his "team."

OK, so here's the short version. The FBI recruited an informant who went to entice folks into a bogus terrorist cell with friendship, gifts, and money. He then provided fake explosives and other materials from the FBI to the group while egging his "recruits" into violent action. He also facilitated the recording of virtually all activities of the group. In other words, there would have been no terrorist group without it being created by the FBI.

While this operation was started under the Bush administration, it continued and came to fruition under the Obama administration. Likely for the same reasons it was started under Bush - to promote fear but show that "intelligence" worked, and that the administration is on the job "protecting the country."

In fact, under the Bush administration we had a notable creation of hapless terrorists with the "cell" broken up in Florida - "Homegrown terrorists" arraigned in court:"

"Batiste allegedly met in December in a hotel room with someone posing as a representative of al-Qaida -- someone law enforcement officials say was actually an agent of a country friendly to the United States."

Many of us lived through this dark time in U.S. history. That is why so many spoke out against the U.S.A.P.A.T.R.I.O.T Act. However, like the fear of "communists" and "dissidents" in the Cold War era, fear ruled the public in largely not supporting the fight against the evisceration of our legal protection by the state. Further, the effect is the same - to silence dissenting voices.

Preventative Detention
[NOTE: TheraP has a good post with excellent discussion on this as well- "Indefinite Detention - Constitutional Concerns and a Rebuttal"]

Perhaps it is not surprisingly, nor coincidental, that the NY "terror" plot is fueling the rhetoric around closing Guantánamo, and what to do with those still being held by the United States. As presented by FOX News:

It also provided evidence to some lawmakers that closing the detention center at Guantanamo Bay or releasing any of its 240 detainees into the U.S. federal prison system would further endanger national security.

"The initial reports that we're getting [are] that these alleged terrorists were converted to radical Islam in jails. I think we need to look at that as a problem as well if jails are going to become a breeding ground for people to convert to any kind radical Islam," Rep. Eliot Engel, (D-N.Y.) told FOX News.

The "foiling" of the "plot" coincidentally occurred as if to frame President Obama's National Security Address on 5/21/09 at the National Archives. In this speech, Obama states that he will continue to use the (Bush) Military Commissions to try some detainees. He stated that military commissions have a long history in the U.S. - which they do. However, that history has largely been a battlefield court - and not a supplanting of the judicial system of the United States. He goes on to state how he is changing these commissions as they were restructured under the Bush Administration. However, even with restructuring, they remain an extra-judicial forum - a court outside the court system following different rules than our courts.

More troubling are those detainees who cannot be prosecuted but are perceived as a potential threat to the United States. For these detainees Obama proposes "prolonged detention" which could last into perpetuity. The words are different, but this was exactly George Bush's policy intent. Namely, to lock up folks indefinitely for actions the might take.

In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Now, this generation faces a great test in the specter of terrorism. Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and -- in all probability -- ten years from now.

I strongly encourage everyone to watch Rachel Maddow's 5/21 discussion Prolonged Detention (approximately 12 minutes long also included at the end of this post)

Where Are We At and Where Are We Going?
Our Constitutional and legal protections have been shredded over the last eight years, and apparently they will continue to remain so into the indefinite future. Neither Obama nor the Congress seem to fundamentally question what has been established. While some things are being tweaked to increase the appearance of legality and constitutionality, the threat of the abuse of power remains in force. The Republicans may spew their complaints and fears about even the "tweaks" being implemented, but in fact they are not challenging the basic perversions of law they supported under Bush.

Now, as when they were first implemented, much of the public seems to be complacent. Some would argue that the politics of fear still reign, and people are willing to give up their liberty for security. I actually believe that fear is a prod, but that most people do not think that such "extreme measures" would ever be taken against them.

Random stops and searches by police, and secret invasions of their homes and offices and cars and phones and email? "Hey I don't have anything to hide, and they wouldn't look at me anyway."

Being identified as a terrorist, supporter of terrorism, or potential threat to the United States? "I'm not Muslim or Arab," and a belief that only "bad" people get arrested; if someone is in jail / detention they must be guilty.

But what if you disagree with the powers that be? What if you go to a demonstration to stop the wars in Iraq and Afghanistan and Pakistan? What if you join a picket line outside of Goldman Sachs (economic terrorism if it impedes their business)? Or you give money to Greenpeace to protect the whales (supporting environmental terrorism)? Or you give money to a relief organization providing aid to refugees in Pakistan (potentially supporting terrorists)? O yeah, terrorism has become a label that covers so many activities that even checking the "wrong" book out of the library (or buying it almost anywhere with an electronic transaction) can throw flags in the massive governmental datamining projects.

Those who do question soon become aware of the possibility that they may cross some invisible line that may land them in "prolonged detention." Folks have (and do) choose to not go to a demonstration because agents are everywhere taking people's pictures. They don't join study groups because they might "get in with the wrong crowd." They don't even try to search the internet for information because that activity might be misinterpreted. In other words, people are afraid to question, much less to exercise their constitutional rights of freedom of assembly and freedom of speech. People know that there is no right to privacy.

Some will argue that I overstate the threat or people's fear. I do not believe that is true. I have had these concerns expressed to me by numerous folks. "Well, I'd go to the march, but I'm worried about all the surveillance." "I was going to do some research on x issues, but when I saw what the google search pulled up I thought it might make me look like a suspicious character."

I raised the concerns as various legislation and policies were put in place under the Bush administration. I argued then, that whether one had full faith in Bush or not the power carved would pass to the next President and the next, and the next. I argued then that placing so much control into the hands of a President would be too attractive to the various political parties for them to challenge it. These issues and infringements are not a party issue, or even a trust issue. Whether the Republicans or the Democrats hold power; whether Bush or Obama are in office; the people must push back. As massive activity by the people led to the Church Committee and boundaries being placed on the police and intelligence agencies to protect the rights of the people, so too we need to press our elected representatives to push back and restore protections to the people from the abusive use of power against the people.

Other Pertinent Resources
Paul Wolf's COINTELPRO Archive
Yet another bogus 'terror' plot
Failed New York Terror Plot Widens Debate Over Closing Guantanamo 
New York "Terror Plot" Another Provacatured Set-up 
FBI Blows It: Supposed Terror Plot Against NY Synagogues Is Bogus 
Alleged N.Y. terrorist plotters known as regular guys 
Silencing Dissent in the Name of Security 
5 found guilty in Miami of trying to join in terror plot with al-Qaida