Tuesday, December 20, 2005

The tightrope

Pajamas Media has a roundup of blog discussions, pro and con, on the subject of whether the President had the authority to conduct wiretaps, one end of which involves a US person, without a court order. However the legal arguments play out, a slightly different question already has a definite answer: the President does not, apparently, have the reliable ability to conduct surveillance of the enemy without the fact being revealed in the New York Times. Former intelligence officer Emily Francona points out that two possible instances of lawbreaking are being discussed, but one instance is more cut-and-dried than the other.

Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General. He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. ...

The most serious legal problems are posed by those who leaked this highly classified national security information to the media, an unauthorized recipient of any classified information. Any NSA or intelligence community official concerned over an intelligence activity has an internal oversight system available to address these concerns in a legal and classified environment: NSA's internal Inspector General and/or the Intelligence Community's Inspector General.

Johnathan Alter writes in MSNBC that the New York Times knew about this "highly classified national security" operation for a year, and decided, despite appeals from the President, that they had a duty to make it public.

I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president’s desperation. ... Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker.

Orin Kerr at the Volokh Conspiracy thinks that President Bush's actions were illegal, but feels it is not a slam-dunk case. Hugh Hewitt believes the President was within his rights. But whatever the legalities of the wiretapping, the fate of this particular operation was effectively decided -- not by the New York Times, it's fair to say -- but by whoever took it upon himself to leak it to them. The judgment on the wiretap's operational security had been handed down, as effectively as a unanimous decision from the Supreme Court. If your life had to depend on this operation's secrecy, then kiss your a... goodbye. President Bush had futilely lamented an earlier leak.

"In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak," he said.

Once upon a time signals intelligence was considered so important that considerable efforts were taken to prevent its compromise. Captain John Philip Cromwell, who was privy to the secrets of signals intelligence, elected to go down with the USS Sculpin rather than risk capture by the Japanese and reveal his knowledge under torture. Cromwell agonized over a problem the NYT editorial board might have found easier to resolve.

The destroyer quickly destroyed the bridge, killing Connaway, the XO (LT Nelson Allen), and the gunnery officer (LT Joseph De Frees – son of Rear Admiral De Frees). LT G. E. Brown, another reservist, was now the senior officer assigned to the submarine and quickly took command. He chose to scuttle the boat and gave the order, "abandon ship." The crew struggled into life jackets as the Chief of the Boat opened the vents. Captain Cromwell, division commander with only 13 days at sea on his first war patrol, was faced with a predicament. He could abandon ship and face the possibility of severe torture in a Japanese prison camp or go down with the ship. Knowing full well the possibility of the enemy gaining information about Operation Galvanic and the secrets of Ultra during torture, Cromwell chose to take the secret information to the bottom. He told LT Brown that he "knew too much" and would stay onboard. Ensign Fielder, perhaps feeling responsible, made the same decision. These two brave men – and ten others – rode the ship down for the last time. ...

When Admiral Lockwood learned of Sculpin and Captain Crowmell’s fate, he recommended Cromwell for the Medal of Honor. It was approved and awarded to his widow after the war. Admiral Lockwood went on to say, "Captain Cromwell's selfless act of personal sacrifice represents what our submarine force is all about. It stands for dedication, courage and honor in the face of adversity." "John Cromwell is a true American hero," he added.

Commentary

No one is above the law and the President's actions will be judged in the manner provided. But it's also important to ask -- and the answer is of more than academic interest -- when and to what extent an individual or corporation can divulge a secret military operation on the basis of a self-appointed duty. The mantle of secrecy is not absolute and few would argue that German officers with a knowledge of the Holocaust should keep it quiet out of a regard for operational security. But the wiretapping case, as Orin Kerr points out, is much more marginal. Two factors are probably relevant in making that determination. The first is competence. To what extent is an individual whistleblower or organization like the New York Times competent to judge what operations of war should or should not remain secret? The second is responsibility. Assuming that an individual or news organization were qualified to weigh operational security requirements against their duty to inform, who takes responsibility for any deaths or injury that may result? It will be argued that Scooter Libby cannot dismiss these questions as irrelevant. Why should they be irrelevant to the leakers in this instance?

136 Comments:

Blogger stackja1945 said...

When the next attack on the US occurs, the MSM and Dems will still be congratulating themselves on the restriction they forced on the President. Midway followed Pearl Harbor but the old version of the NSA provided a warning.

12/20/2005 01:40:00 AM  
Blogger Doug said...

Odd co-incidence for me this evening.
First our son briefly outlined what SDI meant on top of his top secret clearance.
Seems that it means that in addition to not being able to tell mere mortals like us much of anything, it means that even other folks with top secret clearances can't talk freely to each other without going through the proper channels/clearances first, and the discussions are strictly limited in scope.
Next, I was listening to Hewitt describe how he worked on FISA stuff that involved SDI in 84-85, and how this led to very lengthy delays in getting things through the many layered system and finally approved.
A far cry from those who act and argue as though going through FISA in the midst of an ongoing assault is no big deal.
...but then I guess that meets the New Standard of the New York Times:

Above top secret, above SDI, and ABOVE THE LAW, are they, the elite.

What would we do without them.

12/20/2005 01:45:00 AM  
Blogger Doug said...

...and we can be sure that citizens here in contact with agents in Germany in WWII were NEVER monitered.
---
The very same Russ Feingold who is now bloviating about Bush's lack of authority, just a few short years ago:

Feingold on September 14, 2001:

Like any legislation, this resolution is not perfect.
I have some concern that readers may misinterpret the preamble language that the President has authority under the Constitution to take action to deter and prevent acts of international terrorism as a new grant of power; rather it is merely a statement that the President has existing constitutional powers.

I am gratified that in the body of this resolution, it does not contain a broad grant of powers, but is appropriately limited to those entities involved in the attacks that occurred on September 11.
And I am particularly gratified that this resolution explicitly abides by and invokes the War Powers Resolution.

12/20/2005 01:52:00 AM  
Blogger wretchard said...

In way, the NYT used private 'wiretap', information acquired through a leak -- without the benefit of a court order -- to expose a government wiretap. Now events may prove them justified in their actions, but how did they make that determination except through their own judgment?

Emily Francona notes that there is an oversight system, which includes, among others, Congressional leaders from the Democratic Party. Unless those Congressmen knew less than the NYT then the newspaper acted even though those charged with oversight chose not to. Now the NYT may claim it knew more than the Democratic Congressmen; because Bush misled them, etc, and was therefore justified in acting differently. But how did they know they knew more? No one is going to admit to comparing notes, as that would be tantamount to confessing a security violation. But you can see the difficulties.

The NYT's argument, I think, must rest on the assertion that this expose was of exceptional public interest, because I do not think you can argue it should be standard operating procedure for a newspaper to arbitrate what military secrets should remain so, unless one is also willing to assert that newspapers ought to replace the oversight system. In which case they ought to write that provision into the newspaper Shield Law.

12/20/2005 02:06:00 AM  
Blogger ledger said...

...a slightly different question already has a definite answer: the President does not, apparently, have the reliable ability to conduct surveillance of the enemy without the fact being revealed in the New York Times...The first is competence. To what extent is an individual whistle-blower or organization like the New York Times competent to judge what operations of war should or should not remain secret? The second is responsibility. Assuming that an individual or news organization were qualified to weigh operational security requirements against their duty to inform, who takes responsibility for any deaths or injury that may result? It will be argued that Scooter Libby cannot dismiss these questions as irrelevant. Why should they be irrelevant to the leakers in this instance? -Wretchard

The short answer is the NYT should be held liable (unfortunately, the lawyers at Powerline point to a USSC case involving Woodward which seems to give some cover for journalists - but, not Agency leakers).

The real issue is why the NYT's reporters are blowing so much smoke over NSA and the Patroit Act. NYT's motives maybe more self-serving and more hazardous than they appear on the surface. It's possible that the NYT is actively seeking interviews with terrors (and/or aiding them).

Hence, the NYT and their operatives cannot afford to have NSA surveillance and Patriot Act in place.

It's well known that the Feds have charged two NYT reporters Philip Shenon and Judith Miller with tipping off an Islamic front "charity" the Global Relief Foundation before a Federal raid could occur (Dec. 14, 2001). It's no stretch of the of the imagination to believe that Shenon and Miller have continued that patter of behavior. Hence, the NYT is doing it's best to derail the Patriot Act to keep it's to keep it's secrets buried.

[NY Post]:

...The Justice Department has charged that a veteran New York Times foreign correspondent warned an alleged terror-funding Islamic charity that the FBI was about to raid its office — potentially endangering the lives of federal agents.

...It has been conclusively established that Global Relief Foundation learned of the search from reporter Philip Shenon of The New York Times," Fitzgerald said in an Aug. 7, 2002, letter to the Times' legal department... The [NYT] suit seeks to block subpoenas from the Justice Department for phone records of two of its Middle Eastern reporters — Philip Shenon and Judith Miller — as part of a probe to track down the leak.


See: Shenon & Miller tipped off Terror Charity


For more on the relationship between the NYT and Islamic Charity see post #285, 90% down thread

If you follow the links it will lead to judges statement on Judith Miller's involvement in the tip-off (thank's to PowerLine and lgf).

Next, I believe the CIC has the power to tap suspected terrorists in both the USA and overseas.

First, there are some commentators who have indicated that it could take up to 6 months to prepare and get a warrant from the FISA court (you can't just get on the phone and instantly get FISA warrant). Time is of the essence when trying to prevent terror attack.

Hence, Bush simply had not the time to get the warrants in a fast moving war (I will try to find a link for the story).

Navy Seal Matthew Heidt of Froggy Ruminations tells the practical reason why it's probably mandatory that the President use wire taps with out a warrant:

[Matthew Heidt]

...ONLY tools available to follow these potentially critical leads. With respect to the monitoring of calls from those foreign numbers to US persons, the only way to obtain FISA warrants PRIOR TO the initiation of any of those potential calls would be if a list of PREVIOUSLY called numbers in the US could be determined. Calls made from the foreign numbers to US numbers not previously known (it is tradecraft SOP to periodically change these numbers on both ends) could never be monitored under the absurd "interpretation" of the Constitution by liberals in the US Senate.

...the liberals are saying is that the US should not monitor calls from known terrorists abroad to previously unknown US co-conspirators under any circumstances. They are proposing in essence that only calls to terrorist co-conspirators who are well known and under surveillance already can be monitored. The idea that the US should put its fingers in its own ears and repeat, "I can't hear you, I can't hear you!" when terrorists communicate with their agents in the US is one of the most ridiculous and silly ideas that I have ever heard.


See: Eavesdropping on the Cowards

Hugh Hewitt clearly makes the case that the President does has the power to wiretap suspects during this global war on a mobile and ruthless enemy.

[HH]

Overlooked in is the simple, undeniable fact that the president has the power to conduct warrantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits "unreasonable" searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act ...cannot be read as a limit on a constitutional authority even if the Act purported to so limit that authority.

[1972 decision]

"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."


[HH]

That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president's executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, any more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority. (They can influence the Supreme Court's interpretation of the president's authority, as discussed by Justice Jackson in his famous opinion in the Steel Seizure Cases.) The 1972 decision contains a colloquy from the Senate floor between Senators Hart, Holland, and McClellan on that illustrates the correct understanding of this crucial principle:

[Senate Debate]

"Mr. McCLELLAN. Mr. President, we make it understood that we are not trying to take anything away from him.

"Mr. HOLLAND. The Senator is correct...


[HH]

The first question is the scope of the president's authority to order warrantless surveillance on participants in plots involving foreign powers against the United States. The president and his legal authorities have concluded that he does have that authority, even if the plot involves some American citizens.


See:Presidential Power

and see:

Presidential Power, Part V
Presidential Power, Part IV
Presidential Power, Part III

12/20/2005 02:08:00 AM  
Blogger a Duoist said...

It is the mental link that we all make between spying and torture, and the resulting loss of freedom, that grounds the latest controversy over Mr. Bush's directing of NSA taps without prior FISA court approval. Mr. Bush's explanations offer a rational and cogent argument, in keeping with his responsibilities as Commander in Chief.

The difficulty, however, for many of us who support Mr. Bush and our war, is that this latest controversy is one more executive action in a long line of actions which all seem to be pushing the envelope.

When do we stop taking short-cuts with American law? How much American freedom are we going to continue to surrender in the name of bringing freedom to others? Why are we denying that we torture for months even as we argue for torture not to be prohibited? Why does it take the votes of 96 Senators to convince the White House that it is on the wrong side of a war issue?

The sooner the continued pushing on the envelope of executive war-time perogative stops, the sooner the American publc will rally to Mr. Bush's leadership on his waging of the war.

12/20/2005 03:02:00 AM  
Blogger wretchard said...

Duoist,

It's a good question. How much freedom do you give up to win? One of the ways aspiring dictators acquire power is by exaggerating an atmosphere of fear; conversely the easiest way to lose authority is to convey that the storm has passed.

President Bush has been altogether too successful at meeting threats which everyone imagined on September 11. Back then it was considered brave for the President to make the opening pitch of a baseball game. But maybe the threats weren't imagined; just defeated.

In the British General Election of 1945, Winston Churchill was thrown out of office just days after the German surrender. And it made sense in a way. With Hitler gone, no one was interested in Blood, Toil, Tears and Sweat. What they wanted was Labour's promise to "Build a Land Fit for Heroes", which of course would have been hard to do if the Nazis were in Whitehall.

But terrorists, unlike the Nazis, don't sign instruments of surrender. The fires are banked, but are they out? How can one be sure that it's safe to throw away the sword now that it's no longer needed? If the debate is about anything, it's about whether the time for "shortcuts" has passed. That's an empirical question and as with all such we'll soon enough know the answer.

12/20/2005 03:33:00 AM  
Blogger mal said...

http://www.opinionjournal.com/editorial/feature.html?id=110007703

12/20/2005 03:37:00 AM  
Blogger Kerry said...

If Al Queda attacks the New York Times, slicing through the masthead, is it too much to hope that Salzberger et. al. will go down with the presses? Although the AlienNation Media already is aflame, faster please. Burn to the waterline!!

12/20/2005 03:46:00 AM  
Blogger Kevin said...

Whoever blew the whistle is just as guilty as Scooter Libby and Karl Rove and should face the full weight of the law. Calls for the NY Times to be punished, as some commenters (but not Wretchard) have done, only makes sense only if Bob Novak and his newspaper are also held legally accountable for revealing Valerie Plame's name.

It needs to be emphasized that the Bush Administration, after 9/11, continued to use the FISA court system for some wiretaps but not for others. What were the criteria that led one case being channeled through the legal system and other cases pushed into the rogue system? According to Larry Johnson:

It appears the most likely explanation is that the Bush Administration did not want to have to tell a Federal judge that they were using information obtained from interrogations that violated the spirit and the letter of the Geneva Conventions.

It remains to be seen as to whether Mr. Johnson is correct, although I must admit that it sounds convincing to me. If true we are seeing the unintended frictional forces that a system like ours is bound to be put under whenever we introduce such a non-American concept as torturing prisoners or extralegal eavesdropping. We are now faced with a choice of diverting even more systematic energy away from the fight against terrorists so that we may get our house back in order. This may seem foolish to some, but ours is no ordinary house. The American Republic has proven for more than 230 years that it is the best organizational model man has ever seen. Torture, disrespect for the rule of law, absolute power, rampant corruption, and runaway debt are not terms used to describe the America I grew up in.

I want MY America back!

12/20/2005 04:03:00 AM  
Blogger Sardonic said...

To those of us who do not know how the Legal system works it seems always that the laws must be cut and dry and either something is illegal or it isn't. However, the legal system is not a Boolean (true/false) system. It is, unfortunately or not, a system of separate judgements on a case by case basis - in particular in cases where the legal area is gray due to a lack of prior exploration in the legal system. What one Lawyer calls illegal another will say is perfectly Legal. They will argue over it until they are blue in the face. When they bring these arguments to trial it is that process, in that case, that determines the legal status. Had the NY Times not brought this case to light then there may not have been a legal question over it, and it may never have been the subject of legal examination. Thus the President could have continued to act as he was without inhibition. Let us presume that he is actively trying to save American lives. Let us presume that the wire tapping has saved one or more American lives, and perhaps many. Will this factor into the Legal arguments? Probably not. Yet morally it most certainly does. Do the Editors of the NY Times comprehend that their own actions may inhibit the President from actively saving American lives? Are they Legally liable for their own actions? Well, again, isn't this a question of whether or not anyone brings this question to the courts? I agree, on the next attack, Arthur Sulzberger and executive editor Bill Keller of the New York Times may well grin and preen themselves while their fellow Americans perish in agony as did those in the Twin Towers on 911, though personally I doubt anyone could be quite that obtuse. More likely, one would hope, the two of them would be appauled and horrified as the rest of us, regardless of the political gain that they perceive in that event. Yet, isn't this still a valid Legal question that could and should be taken up by the courts? If you print to the public (and therefore the Enemy) State secrets, which are known to be classified, and people die as a consequence of that information being both leaked and published, does the publication that printed the information have an outstanding Legal liability, and can the Publication's owner be held accountable? What's good for the goose (George Bush) must surely be good for the gander (the New York Times). No? Personally, I should like to see this tested in the courts.

12/20/2005 05:08:00 AM  
Blogger Lupin3 said...

This discussion of what freedoms we are willing to give in order to "win" the war ellides the fact that we never had a choice at all. That is, until the secret wiretaps were made public. Part of the paradox of secret warfare in a democracy is that the democracy cannot directly participate in it. To an extent, then, those who claim we are winning the war on terrorism only to lose what we were fighting for, have a point.

This point is continued in the comparisons of the wiretap leaker with the Plame leaker. Ostensibly, the criminal investigations into the Plame case are warranted not by the importance of the secrets revealed (which, most seem to agree, are insubstantial) but by the danger to American field officers and those agents assigned to them. However, the real human cost of the Plame leak will not be known, not least because the CIA refuses to study it out of it's desire for secrecy, to avoid having it's findings made public in court. Thus, the cost for which the investigation was nominally warranted is unknown, and likely to be unknowable. The same will be true of any investigation into the wiretap leaker, although without the (supposedly) direct effect on American agents.

So certainly the degree to which these kinds of leaks are "actionable" by the electorate is questionable, however, in our zeal to patch the holes in our sometimes too open government, we should not forget that it is that openness which defines it.

Too, I would suggest that those who believe that such leaks and covert-policy making did not occur during ww2 should look more closely at the history of wartime press/government relationships. Leaks occurred all the time, and some held strategic implications.

12/20/2005 05:16:00 AM  
Blogger Lupin3 said...

This comment has been removed by a blog administrator.

12/20/2005 05:17:00 AM  
Blogger RWE said...

Prior to our entry into WWII the Neutrality Acts forbade "flying" combat aircraft to any combatant nation.
So, the Lockheeed Hudson bombers Great Britain needed were flown to New York and then towed across the border to Canada - they were not "flown" to a combatant nation, but rolled there on the ground.
This rather obvious violation of the intent of the law produced only admiration in subsequent years, rather than court cases.

Years prior to WWII, U.S. intercept and decoding of foreign diplomatic traffic was stopped by order of the Secretary of State, who stated "Gentlemen do not read other gentlemen's mail."
Then, as now, we are not dealing with gentlemen.

12/20/2005 05:33:00 AM  
Blogger erp said...

Jonathan Alter opines that Bush was desperate because he knew that revealing the wire tapping would reveal him as a law-breaker. Another report said that Bush looked nervous (read guilty). I don't think he was worried about being revealed as a law-breaker, nor do I think he looked nervous, I think he rightfully looked furious and could hardly contain himself.

So far, I've been hesitant to call fellow Americans, like Sulzberger, Keller, Alter, other media people and many Democrats, traitors, but by putting their monomaniacal frenzy to destroy to the president before our national security they've proved themselves to be nothing less. Perhaps now is the time to actually start arresting people for sedition.

Now that they perceive Bush's blood in the water, watch for some so-called libertarian bloggers, to start coming out of the closet and condemning him for illegal acts. Bush has a habit of landing on his feet, however, so I fear some of these champions of freedom may be left exposed for what they are, left-wingers who, for whatever reason, haven't revealed their predilections and that would be a good thing.

12/20/2005 06:20:00 AM  
Blogger desert rat said...

The President seems, to my reading, to have been within the letter of the Constitution and the spirit of the FISA. He informed key Congressional Leaders of both Parties amongst the Reviews. etc.

There is no real comparison to the Plame affair. Ms Plame aka Mrs Wilson was not an Operative covered by the Law. She did not fit the definition of a "covert" operative.
The information leaked to and subsequently released by the NYTimes does seem to fall under SDI and should be investigated to discover who leaked the info.

Pethaps some jail time for Mr Arthur Sulzberger and executive editor Bill Keller, instead of one of their underling reporters, would be in order. Mr Fitzgerald's Grand Jury could handle the Investigation.

12/20/2005 06:31:00 AM  
Blogger desert rat said...

The questionn that I read of yesterday, I do not yet recall where, was
Why so Few?
Should not there have been much more survellience done?
Are we eo inept that we have id'd ONLY 30 aQ agents in the US?
Or is this just the tip of the iceberg?
Both of aQUS and the "illegal" wiretaps.

12/20/2005 06:38:00 AM  
Blogger al fin said...

Public security should always trump the media's sense of public interest. The media wants to make a buck, so they interpret public interest any way that profits them. The president has to be right about public security every time, or people die.

Thanks to the New York Times, a lot of people may very well die. Fools like Alter live in denial, but there are people trying to kill him along with all other westerners. The civilisation is under threat, and the fools skip blithely along, believing their primary enemy is Bush.

12/20/2005 06:53:00 AM  
Blogger sf said...

I suspect that if terrorists were to carry out another 9/11-style attack on this nation, and if it was conclusively shown later that our security agencies had the terrorist's phone numbers and detected a surge in calls in the weeks before the attack, but didn't wiretap because they were waiting for a FISA warrant, the Bush-haters who own and run the NYT would run headlines screaming that Bush dropped the ball and failed to "connect the dots." It would never occur to them that their actions played a part in increasing our vulnerability.

12/20/2005 06:57:00 AM  
Blogger Prof. Willard said...

Yet another WWII story:
In about June 1943 General Eisenhower called a meeting of all the reporters then covering Allied operations in the Mediterranean. He gave them a complete briefing: "Our next target will be Sicily. The British under Montgomery will land on the southeast coast, while the Americans under Patton will land on the southwest coast. There will be a paratrooper drop just inland of the beaches . . . etc. etc. Now you realize that all of this is top secret. Anybody who releases any of this information before the actual invasion will be prosecuted to the fullest extent of the law for revealing official secrets."
Nobody leaked. The press corps even invented some codes of their own to help in keeping the secret.

12/20/2005 07:32:00 AM  
Blogger Bigger Diggler said...

I am constantly really amazed by how non-lawyers, who have never set foot in a criminal court, are shocked by Bush's use of wiretapping (unsupervised by any court), the Patriot Act etc etc.

Where do they find these people?

Anyone, and I mean ANYONE, who works in the criminal law industry knows good and well that 99.99 percent of law enforcement activities ends up with absolutely no court oversight whatsoever. None. Not before, not during, and not afterwords.

The exclusionary rule has gigantic holes big enough to drive a semi-truck through. Almost all arrests, searches, and siezures in the United States are done pursuant to an exception to the 4th Amendment's unambiguous requirements for arrest and search warrants. Police have virtually unfettered discretion to arrest, search and sieze and the very tiny minority of times that this discretion is challenged in Court (I.E. when some delusional fool requests Court take its oversight responsibilities seriously), 99.9999 percent of the time the Court's support the use of Police warrantless discretion.

Whenever state police actually go to all the trouble of obtaining a warrant (just about so rare as to be freakish, about like being hit by lightening), the system spends a considerable amount of time wondering what the cop's motives could have been for doing such a bizarre act. Whey WOULD they do such a thing?

So in the context of everyday criminal law practice, George Bush is being held to a standard so high, capricious, so freakish, so outrageously bizarre given how the government actually operates....as to almost defy comprehension.

12/20/2005 07:37:00 AM  
Blogger PD Quig said...

With what has been revealed so far, I am satisfied that Bush chose to err of the side of security. On the other hand, in the business world when a process is broken (under FISA it can take up to six months to obtain a warrant), an executive will demand that underlings fix the process in addition to addressing short term exigencies. It would have been better if Bush had proceeded on two tracks: lean on Congress and Justice to fix a cumbersome process while doing what was necessary to save lives. As it stands now, it appears that he punted on the systemic, procedural fixes.

12/20/2005 07:43:00 AM  
Blogger soflauthor said...

I was unaware that the NYT had the NSA story for more than a year. Is it only a coincidence that the Times chose to break the story on the eve of the latest Iraqi elections, thereby reducing the impact of the election story?

It's also interesting that the Democratic leadership have made no call for a special prosecutor (a la the Phlame affair) to investigate who leaked the NSA story to the NYT and whether laws were broken in the process. If leaking the identify of a single CIA agent is worthy of investigation, it would seem that leaking a top secret program in an on-going war on terrorists is at least as serious.

12/20/2005 07:47:00 AM  
Blogger Karridine said...

"When do we stop taking short-cuts with American law? How much American freedom are we going to continue to surrender in the name of bringing freedom to others?"

Because these are valid questions, they underline a widespread and growing distinction between 'laws' and 'justice'.

Faced with a cumbersome lawmaking system AND a -ahem!- "loyal opposition" vehemently making hay out of anything it can spin AGAINST the defenders of America and their Commander-in-Chief President Bush, its becoming more and more difficult to take action in a timely manner to protect America, for there is a vocal minority which publicly WHINES if the president DOESN'T act, and publicly WHINES when he does!

We need a House of Justice, where our elected representatives are AWARE of the law, ARE working for all of us without partisan politics, ARE working in good faith, and ARE allowed to use good, common sense!

But maybe this is why the Universal House of Justice was created...

12/20/2005 07:49:00 AM  
Blogger Karridine said...

Another observation: I enlisted in the Army Security Agency in 1964, and was cleared for Top Secret Cryptological.

I STILL have a 20-year in prison/$20,000 fine hanging over MY head if I disclose one iota of what is now moldy, overgrown secrets from 1968, during the USS Pueblo affair, for example.

There IS no 'statute of limitations' when you sign your name to a promise to keep America's secrets SECRET.

This is what so many Americans are disgusted with, when a little guy does something, SMACK! Ft Leavenworth here he comes!

When a Sandy Burglar does it, cramming classified documents into his socks and jockstrap, "Oh, tut-tut, naughty little Sandy... Run along now." AND NOTHING!

And coincidence? NY Times chooses NOW to balance/negate the Iraqi elections? NO COINCIDENCE AT ALL!

12/20/2005 07:59:00 AM  
Blogger Bigger Diggler said...

After I wrote my last hot missive, I decided to take a decidedly non-scientific examination of the files that were on top of my desk.

There are 20 files on my desk. Every single one of them involved warrantless siezures and searches. I had already reviewed them and tabbed them for possible Motions to Suppress (I.E. whether there was the exceedingly gossamer possibility that a court would enforce the constitution). On the two that even had the slightest prayer of succeeding in getting judicial review of even the most cursory level, one was a complete dead loser, clearly within the scope of an exception to the warrant requirement. I will call my client and give them the bad news momentarily. I hope she writes a letter to the New York Times excorciating Bush for the crumbling of the constitution.

The other was more promising, however given the current political predilictions of State Court Judges, most likely they will kick the can down the road, deny the motion and see if the Court of Appeals will reverse them (similarly about as remote as getting hit by lightening). I will cravenly trade this issue, like most issues involving search and siezure, for my client's very liberty. Most of the time, the reality is that Prosecutor's care a heckuva lot more about proper procedure than judges do.

So let me get this straight: Bush is being crucified for warrantless wiretaps of people who have not been in custody, nor are they likely to ever BE in custody?

Have I suddenly slipped into some parallel universe?

12/20/2005 08:09:00 AM  
Blogger Xander said...

"How much freedom do you give up to win? One of the ways aspiring dictators acquire power is by exaggerating an atmosphere of fear; conversely the easiest way to lose authority is to convey that the storm has passed."

I think you've hit upon it exactly, Wretchard. The current administration has been beating the war drum unceasingly, especially with regards to sometimes dubious terror alerts during the election year. A culture defined by fear, as a generation that has come of age in awe of Manhattan's emptied skyline has been, will continue to leave too much power in the hands of a government that has not distinguished itself its handling of that trust over the decades. The threats are real and continuing - unsecured radioactive material, bioterrorism, or tranferral of suicide bombing from the streets of Tel Aviv and Baghdad to New York and LA - but I am unconvinced that any administration should be pushing the envelope without pushing the debate itself before the American people.

I am also unconvinced that revelations about taps of interntional phone lines alert terrorists to our abilities. Does anyone, anywhere, doubt the ability of the NSA to monitor wireless digital communication? If anything, the missing capability lies in translation, which I would imagine to be the more compromising fault.

12/20/2005 08:31:00 AM  
Blogger Cruiser said...

I think the whole analysis at Volokh is flawed. It appears to assume that Congress, by enacting a law, could extinguish the powers of the president as Commander in Chief. It cannot, and any act that would purport to is unconstitutional.

Once you determine that the president is acting within his constitutional powers as Commander-in-Chief, there is no need to analyze whether the president’s actions violated any act. In other words, if it is constitutional in this case it is also legal.

I appreciate the effort Volokh put into the analysis, though.

12/20/2005 08:50:00 AM  
Blogger Dave H said...

'Rat, you call for possible jail time for Keller & Sulzberger. No doubt with tongue in cheek. As long as we are merely discussing possibilities, it would seem to me the crime is treason and the penalty is death. Would probably cause them to spend a few bucks on some third rate lawyers anyway. Where is Abe Lincoln when we need him? Bush will never push this case, Lincoln would have deported them to some hellhole and worried about it later. For that matter John F Kennedy would probably have done something similar(see Carlos Marcello's case). H'mm, maybe thats a bad precedent seeing what happened to him.

12/20/2005 09:08:00 AM  
Blogger Doug said...

Diggler,
If you haven't read this Alter Piece, you have yet to see real Freakishness.
Seems the MSM is on a quest to become ever more distant from reality each and every day.
This is a new high for unhinged "opinion"
(wild, unsupported ranting)
. NEWSWEEK EDITORIAL: Bush summoned NEW YORK TIMES editor and publisher to the Oval Office... .
---
John McIntyre at Real Clear Politics takes down the clueless Newsweek bloviator and his ilk. Great stuff.
-Malkin

12/20/2005 09:11:00 AM  
Blogger Doug said...

cruiser, re:
"I think the whole analysis at Volokh is flawed"
---
Agree, did not even deserve a link, imo.

12/20/2005 09:14:00 AM  
Blogger Cruiser said...

Re my earlier post:

I can't get back on the Volokh site right not to verify, but I think that Volokh came to the conclusion that the president's actions were constitutional but illegal (because congress passed some laws arguably on the subject that he did not follow). In the context of the Commander-in-Chief powers of the president, I think that the conclusion of "Constitution and Illegal" is an absurdity. If he is acting within the constitutional powers that are solely reserved to the president, then no law passed by can impede him. To find otherwise would allow congress to take away the president's constitutional powers and duties, a clear threat to the separation of powers.

12/20/2005 09:22:00 AM  
Blogger Annoy Mouse said...

The coup has begun. Revolutionary activists are toppling the government of the US of A. The bandits in the highest echelons of the government are taking control of this nation. It is time to call out the national guard. Where is Joseph McCarthy when you need a man who will call evil what it is, unmitigated treason. Our government went wobbly after the fair treatment of the Rosenbergs.

We have some nerve criticizing other nations when ours behaves like a third world sh** hole. Time to build a Club Fed next to Camp X-ray, we can call it Zulu.

12/20/2005 09:23:00 AM  
Blogger desert rat said...

Here is that piece that asks

"...Most analysts believe al-Qaeda has 200 cadres operating within the U.S. Former Senator Bob Graham (D-FL) of the Senate Intelligence Committee cited this figure in 2002. According to the requests, some may argue that the Administration's ground troops have only tracked 30 of them, 15 percent.

That's why I was surprised as I continued reading the AP report that it did not criticize the administration for not doing enough surveillance of terror-related activities but for doing too much, or as it was framed in the media later: Spying on U.S. citizens! ..."

At the Counterterrorism blog "Catch them, but do not watch them!" by Walid Phares.

12/20/2005 09:29:00 AM  
Blogger Doug said...

Kevin links *Larry Johnson*,
Har de har har, Great Source!
" Torture, disrespect for the rule of law, absolute power, rampant corruption, and runaway debt are not terms used to describe the America I grew up in.

I want MY America back!
"
---
EXACTLY,
Where a Democrat President does the same thing and much much more, and you disembling madmen remain silent.

12/20/2005 09:30:00 AM  
Blogger Doug said...

cruiser. re Volokh,
"constitutional but illegal"
---
Yep, that was it, and it fits right in with what's wrong with that whole side of the spectrum.

They regard what they think and want as superseding our founding document.
Hubris Unhinged.

12/20/2005 09:36:00 AM  
Blogger Bigger Diggler said...

It just struck me that the net result of this weird inquisition by the New York Times is an extremely absurd irony. It is a result that stands all reason and morality on its head. It is this:

Al Quaeda agents, because of the publicity and political repercussions generated by this bizarre non-story, had, and will have, far GREATER protections against warrantless searches and siezures than ANYONE else in the United States!!! A foreign agent, who is dead set on arranging the mass-murder of American civilians, will have a greater legal and political protection against a warrantless search and siezure than a petty criminal(who is a US Citizen) who is smoking a joint inside his own home!!!

Now THAT'S what we should be outraged about!

12/20/2005 09:50:00 AM  
Blogger Y.H.N. said...

I was once asked by a Canadian collegue who opposed the war, what makes the US competent to judge whether or not a regiem should be replaced by force?

My answer was essentially that the US had the capability to act and was therfore required to make a decision one way or the other. Wisdom, my collegue used the term wisdom rather than competence, has a bearing on the eventual outcome of the action but not on the duty to decide how to act.

Each time the NYT has a story pertaining to national security they have to decide how to do so. The fact that they are incompetent to do so is immaterial. The material fact is that there is no one more competent than they to decide. If in fact the wiretapping turns out to be illegal then the administration has an obvious conflict of interest and defering to an executive request for supression can only be honored for so long.

Knowing so little I think the NYT did the right thing in reporting the existance of the operation but not methods and sources.

12/20/2005 09:53:00 AM  
Blogger Annoy Mouse said...

It is absurd to think that you can follow terrorists until they get close to their target. Once they touch foot on these shores they are afforded safe haven. Our fickle system works the same for Cubans.

Welcome to the world information glut. We need police ourselves from information so freely used in our own destruction? Put the Z’s in Camp Zulu and throw the east coast traitors in Camp Yankee.

12/20/2005 10:06:00 AM  
Blogger Bob said...

And don't forget the "Bodyguard of Lies":

In war time, truth is so precious that she should always be attended by a bodyguard of lies.” -- Winston Churchill

His being a history buff and admirer of Churchill, it's no wonder W got so mad.

If it wasn't obvious already to everyone, if we had our current venal press during WWII, the Manhattan Project would never have stayed secret. And we'd certainly be speaking Germanese to each other right now.

Which, come to think of it, is a pretty good description of what our current crop of Gramscian Neo-Syndicalist Fascifists sound like to me right now.

And the Germans haven't changed either.

As I overheard someone say: "Sometimes I think that WWI never ended."

12/20/2005 10:12:00 AM  
Blogger Jamie said...

When I first read the headlines on this story - along the lines of "Bush personally authorized wiretaps on US citizens" - and the number of individuals tapped - 26, IIRC, a number which might have changed since then - I thought, "The important thing here is that Bush personally authorized these taps." You don't get a nation's chief executive to authorize something personally if it's a commonplace occurrence.

This, plus the fact that the Bush administration is coming out all guns blazing on the subject, suggest to me that they're not very concerned about their legal position. Not that I haven't been wrong before, but...

12/20/2005 10:13:00 AM  
Blogger usually mellow said...

What seems to be lurking in the shadows is the fact that somehow information is being divluged to the press.

The most obvious place to look is at the US intelligence community.

By some accounts, Porter Goss was brought in to 'clean house' at the CIA. Is this how a bureaucracy fights back, by leaking to the press?

Is our intelligence community actively yet passively subverting presidential perrogatives in the war on terror?

That is a scary proposition to consider, one I hope is limited to a few 'dead-enders'.

Have things gotten so bad w/ Porter Goss' cleanup that any dissent/disagreement with the current policies is a pink slip? Does this force employees to using the press as their only avenue of redress?

I like to think these agency/intelligence employees are loyal to their oathes of office and believe in their leadership enough to trust their decisions and directives.

Something is quite rotten. I think a battle is raging between lifelong intelligence bureaucrats who have seen presidents come and go and a president charged with defending the Constitution.

Why isn't this headline news? They are supposed to connect the dots and disrupt the terrorist plans, yet effort is being spent on leaking highly sensitive, ongoing operations in a time of a congressionally approved resolution on war.

12/20/2005 10:19:00 AM  
Blogger Sparks fly said...

Greetings!

Did you notice the "Joe Wilson" photo on the front page of Drudge lately?

How come ol'Joe babe doesn't get called to answer for all his carefully crafted lies? Does he have a deal with Fitzy? In washington he must be regarded as a skillful promoter but in the larger world of American life he's a non person and somehow this has not penetrated into the dark recesses of his mind or into the minds of those people, whomever they are, that he communes with. It seems like he's trying to say something but has forgotten how to speak.

Maybe I don't want to know. Perhaps a kind God is sparing us from looking into that particular sewer.

Happy Christmas, Birth of Jesus, holidays.

12/20/2005 10:23:00 AM  
Blogger Aristides said...

The only thing improved by divulging this information is the Al'Qaeda training manual.

It seems to me the elite have been asking an awful lot of Americans these days. How much more will we have to sacrifice to keep their consciences clear?

It will be a small comfort to me, when I am deliberating leaping sixty stories to avoid burning to death, that Sulzberger and Keller stood up for their principles.

12/20/2005 10:36:00 AM  
Blogger Bigger Diggler said...

Now I have 26 files on my desk (earlier I had 20), all of which are warrantless searches and siezures, with absolutely no hope of any efficacious judicial review......ever. (this is a slow day at this office, btw. I am one of 13 attorneys). 26 is significant, because that apparently is the number of warrantless searches (wiretaps) "personally" ordered by George Bush, and which won front page coverage by the NYT. (BTW, NOBODY personally ordered all these 26 warrantless searches and siezures on my desk.....they just sort of....well......happened. which is the real reason why those Al Quaeda agents have the undying sympathies and loyalty of the NYT, and my clients recieve no notice, ever, by anyone).

I am waiting on a phone call from the NYT........NOT!!!!!

12/20/2005 10:40:00 AM  
Blogger Annoy Mouse said...

There is nothing in the shadows about it. The US intelligence community has left the reservation.

A few dead-enders could of ratted out the US to it’s enemies during any other conflict and done no less harm than the arch evil spy, Johnny Walker.

Porter Goss has his hands full of the business of traitors whose craftwork is being turned against the republic. I have said it before, ‘Wee’s seenz da enemy and dey is us.’ PoGo

Violating their oath not to mention the trust of the American people does not mitigate imperiling the people of this nation.

Passive aggression in the end is aggression. If the government can’t answer to it’s own constitutional authority then it must answer to the people.

The rotten news is that this nation is sinking into civil war starting with it’s own so-called ‘civil’ servants. They are neither civil nor servants but to their own treacherous cause.

Time to break out the pitch forks there’s gonna be a hangin’.

12/20/2005 10:42:00 AM  
Blogger Red River said...

Did the NYT put out a defective product and can the families of dead and injured service members seek compensation for it via a Torts claim? Can they bring a Civil suit against NYT and Viacom for publishing information that leads directly or indirectly to the injury of US Citizens? Can the MSM be found to be a willing or unwilling accomplice to the Terrorists?

You cannot yell fire in a theater, can you shout state secrets in a time of war?

I think there is a basis for a Civil Suit.

12/20/2005 10:45:00 AM  
Blogger ed said...

Hmmm.

Revoke the NYT's license to operate.

Indict the publisher.

Indict all of the editors involved.

Indict all of the reporters involved.

Indict all of the Board of Directors involved.

Indict anyone at the NYT involved.

Indict anyone at the CIA involved.

Indict anyone at the NSA involved.

Indict anyone at the DIA involved.

Indict anyone at the INR involved.

Put'em into prison, minimum of 30 years with no parole.

12/20/2005 10:58:00 AM  
Blogger Mike H. said...

Well...Are we at war yet? Which front do we concentrate on, the internal or the external? Which one can do the worst damage?

12/20/2005 11:16:00 AM  
Blogger fjelehjifel said...

Some historical perspective is required. During past wars, the U.S. government suspended the writ of habeus corpus (Civil War), jailed antiwar activists for sedition (World War I), and interned Japanese Americans (World War II), and spied on the domestic activities of antiwar activists (Vietnam).

It is fair and necessary to scrutinize the actions of the Bush Administration concerning the use of NSA wiretaps. No one, or at least I hope no one, wants to see the resumption of activities that could be reasonably described from our admittedly modern perspective as an "over-reaction."

Whether the president's authorization of NSA wiretaps is an abuse or a prudent use of power, remains to be determined on the basis of facts that are not yet completely known.

In this situation, both the White House and congressional Democrats are shielded to an extent by the still-classified nature of the NSA program.

Were/are the wiretaps constitutional?

A violation of FISA?

Effective in protecting the security of the nation?

We just don't know at this juncture. And the experts seem to disagree on the basis of what we do know.

And the problem is this: In order to find out, we may end up (further) compromising our security to learn the answers.

The White House seems pretty confident that it has both common sense and legality on its side. Moreover, the president has said the program will continue, though its utility is now suspect due to the fact of compromise courtesy of the NYT.

Add the exposure of this program to the recent filibuster against the Patriot Act and we now have the makings of a serious, dangerous trend back toward the paralysis and bureauctratic ineffectiveness that facilitated the 9-11 disaster.

Imagine the outcry and infighting that will result if we get hit harder than we did on that awful day. I'm sure the jihadists have already considered the possibility and are redoubling their efforts to hit us harder the next time.

If the jihadists can't defeat the U.S. military in Afghanistan and Iraq, maybe they'll have better luck defeating DHS, perhaps on the eve of November 2006 general election.

12/20/2005 11:24:00 AM  
Blogger Will Rayford said...

Wether or not it was legal, what President Bush did was to simply skirt an oversight process that would have placed those at the NSA and other frontline troops in the GWT at a distinct disadvantage and, in the end, may have cost thousands of American lives. I am comforted that President Bush has done, and will continue to do, the right thing regardless of what big media, the Democrats, or the proponents of mindless legal process believe. Process kills.

12/20/2005 11:49:00 AM  
Blogger geoffgo said...

On FoxNews, the pundits are discussing Rep. Conyers (D-MI)establishing a formal inquiry to "Investigate Misconduct." How can it be misconduct before the fact?

As Rat asks, why so few?

As asked on Britt Hume's show: So, if Osama is calling someone is the US, we should hang up?

12/20/2005 11:57:00 AM  
Blogger geoffgo said...

pd quiq,

First, I don't see why anyone would agree that the Prez erred at all; not to one side or the other. He acted in the interest of public safety, and that should never be considered an error.

Second, by leaning on Congress as you suggest, the advantage would surely have been exposed; just as clearly as it was by the NYT.

Did it ever occur to you that AQ has American lawyers, dissecting our legal system, many working pro bono?

12/20/2005 12:14:00 PM  
Blogger Ash said...

I am surprised so many of you support the idea that the President should have the ability to act with no judicial oversight whatsoever. Bush had a means to monitor domestic communications that was nimble and quick (warrants could be obtained after the fact even) yet he decided to violate the law. Think how so many of you gnashed your teeth over Bill Clinton committing perjury over a blowjob yet now Bush chose to ignore the law and spy domestically without warrant, as required by law. Think ahead now, if this act should be allowed, to President Hillary Clinton for example - do y'all feel comfortable with her monitoring domestic communications without judicial oversight?

What real harm is done to the monitoring program now that it has been revealed that Bush would sometimes use FISA warrants and sometimes he wouldn't? The monitoring still happens, if anything the terrorists might think that monitoring has stopped and they will increase their communications thus increasing the likelyhood that we'll get something useful out of the surveillance. This case is nothing like Bush's example of the press revealing that the gov was monitoring Osama's cell phone. I fail to see how what was revealed directly hurts the anti-terror effort at all Indirectly it does harm the effort in that Bush's deceit is exposed and it further weakens him politically. The term for the 'leaker' is 'whistleblower' for illegal acts at the highest level have been exposed. They should be praised.

12/20/2005 12:49:00 PM  
Blogger Tony said...

Biggler diggler - nice post! Very informative and sorta funny. As a nephew of a big city cop, I always knew certain things went on (or used to go on) in the streets and stationhouses, but didn't know it was the same in the courts!

As in so many other charges against Bush (Iraq was not a threat, Iraq had nothing to do with 9/11, Bush condones torture, etc.) I just wish the Dems would make them in the positive sense. That is, let them come out to the American people and say: "We don't want the President to do all he can to protect us. We want him to take exceptional measures to counteract our sworn enemies. We liked it so much better during the 90's when the Administration didn't act against Al Qaeda because they didn't want to get into any trouble in case things turned out badly."

With these latest scurrilous attacks, all the other things they've said now rings in my ears with even deeper revulsion, going back to Teddy (D., Bourbon)saying "Saddam's torture chambers are now re-opened under American management."

Since their now obviously self-promoting vote to give the President War Powers the Dems in Congress have done all they can to weaken this country, damage our morale, and in general ignore the ongoing global war by calling it a "war of choice."

I think now they have gone too far, and all but the most fanatic Dem partisans see them for what they are - more interested in damaging the President than fighting our global enemies.

This time last year they told us we were in the worst economy since Herbert Hoover. They were lying then, they are lying now about the President breaking laws. They are going to continue to pay the price at the polls.

12/20/2005 12:58:00 PM  
Blogger Engineer-Poet said...

erp wrote:

"So far, I've been hesitant to call fellow Americans, like Sulzberger, Keller, Alter, other media people and many Democrats, traitors, but by putting their monomaniacal frenzy to destroy to the president before our national security they've proved themselves to be nothing less. Perhaps now is the time to actually start arresting people for sedition."

Where were you the last time this happened?  (You too, Tony.)  "Monicagate" was the most trivial of peccadillos compared to unlawful wiretapping (and why wasn't this taken care of after the law enforcement's wet dream, the Patriot act, was passed 4 years ago?).  Clinton was impeached by the rabid partisans (crippling his ability to do anything about this problem we now face - everything he did was labelled "wag the dog"), and now you want Bush given a pass.

The whole move to excuse this is predicated on the claim that we have to trust the President.  The problem is that the entire administration has proven it cannot be trusted, and the public is finally waking up to this.

The Republicans began this conversion of politics to a blood sport; I grieve for what this is doing to the country, but they're never going to learn in their guts how wrong they were until the chickens come home to roost.

12/20/2005 01:04:00 PM  
Blogger wretchard said...

Engineer-Poet,

The course of the 'blood-sport' has not run yet. The political war within the West is more exciting, in the statistical sense, than observing the battlefield because it is more evenly matched, and I suspect, more decisive.

From that perspective, the NYT-wiretapping affair is not so much an obstruction of the 'real war' as an incident in the really real war. As in any genuine conflict, there will be actual casualties: real people in jail; concrete individuals losing their jobs and careers, etc. Judith Miller looked really put out at being jailed, and I have no doubt that Mr. Libby will be, if it comes to that. So I don't think it's unfair to observe that the NYT has stepped into an arena where it can pay with real treasure. In a world where a President can be impeached, or jailed, where does it say that the media must forever be unscathed? A bloodsport is by definition going to spill 'blood'.

But I don't think the seriousness of events has really sunk in. Psychologically, many people still live in the 1960s, a world of abstract threats but no real physical menace. In that world, actions had no domestic consequences. But in the end they did. I agree with your assessment that politics has become a blood-sport, but I'm not sure it began with Monica.

12/20/2005 01:20:00 PM  
Blogger Bigger Diggler said...

"and now you want Bush given a pass." No, I just want him to have the same - no more and no less - discretionary powers against Al Quaeda that the average high school-educated Billy-Bob-toothed country bumpkin cop has against miscreants.

However, I really do agree that "Clinton was impeached by the rabid partisans (crippling his ability to do anything about this problem we now face - everything he did was labelled "wag the dog"). I do remember that precise argument that republicans were making when Clinton Cruise Missile Osama's Sudanese factory. Shame on them!

12/20/2005 01:29:00 PM  
Blogger Cruiser said...

Ash:

You declare that the President has broken the law. I (and many others) disagree. Time will tell. Regardless, a little less certainty than "he decided to violate the law" is warranted here.

Also, the intercepts were not of domestic calls, they were of international calls (calls between the U.S. and a foreign country). I think this is important because it relates to a caller's expectation of privacy. I think a person on an international call has a much lower expectation of privacy because any number of governments could be eavesdropping on the call (imagine a call between the U.S. and the old Soviet Union - if we were not listening - the Soviets likely were). Without an expectation privacy, there is no violation of the fourth amendment to the constitution.

12/20/2005 01:33:00 PM  
Blogger Nathan said...

I am surprised so many of you support the idea that the President should have the ability to act with no judicial oversight whatsoever.

Constitutional separation of powers, Mr. ICC-Uber-Alles.

Bush had a means to monitor domestic communications that was nimble and quick (warrants could be obtained after the fact even) yet he decided to violate the law.

As others (Orin Kerr?) have said elsewhere, FISA warrants can take months to push through the bureaucracy and have been denied in the past on the whim of individual judges. If the warrant is denied after the information was collected and used, how does that affect the people who collected and used the information to prosecute actions in the interest of national security? Are they criminals? Why don't we just throw our whole intelligence apparatus and military into jail while we're at it?

Think how so many of you gnashed your teeth over Bill Clinton committing perjury over a blowjob

Actually, I gnashed my teeth over his cowardly withdrawal from Somalia that helped to get us into this mess.

yet now Bush chose to ignore the law and spy domestically without warrant, as required by law.

Clinton did it too, see Echelon. Does that make it right? Not ipso facto, but let's be fair. See Article II and then tell me that by whatever magical fiat, FISA is now the supreme law of the land.

Think ahead now, if this act should be allowed, to President Hillary Clinton for example - do y'all feel comfortable with her monitoring domestic communications without judicial oversight?

Actually, yes. After all, her dear faithful hubby helped set the precedent for it, and nobody complained then either. Notice that neither she nor a bunch of other Democrat 2008 hopefuls have said a word about the whole affair. Why? Because not only do they need and want that capability, but whoever wins is going to get it. Darn that Constitution!

What real harm is done to the monitoring program now that it has been revealed that Bush would sometimes use FISA warrants and sometimes he wouldn't?

Good question. Going without the FISA warrants potentially skips a step that could be vulnerable to enemy intelligence services. On the other hand, continuing to seek FISA warrants conveys the impression that some kind of warning from said services could be expected. The prior assumption by the enemy that all surveillance activities in question required FISA warrants could have been exploited, but now it is known that sometimes this process is skipped. This could encourage the enemy to enforce stricter communications controls than were in place before.

The monitoring still happens, if anything the terrorists might think that monitoring has stopped

Do you think they are stupid?

and they will increase their communications thus increasing the likelyhood that we'll get something useful out of the surveillance.

Wishful thinking at best and suicidal naivete at worst. In reality, now that they know that we have the capability and have done it in the past, they will take all possible measures to minimize their communications vulnerabilites in the future.

This case is nothing like Bush's example of the press revealing that the gov was monitoring Osama's cell phone.

How is it different? I had thought you were not so stupid as to convince yourself that not only would the enemy NOT change their communications procedures, but that they would talk MORE. But now I'm not so sure.

I fail to see how what was revealed directly hurts the anti-terror effort at all

This is the kind of "failure of the imagination" that led to 9/11. Are we or aren't we allowed to monitor people inside the country who may be about to perpetrate terrorist acts? Bush says yes, we are. Others drum it up to say we aren't, just four years after screaming about "intelligence failures" and "connecting the dots"! Give us the goddamn pencil and we'll connect the goddamn dots! Or pay the piper for our unlimited "freedom" with the blood of thousands if not millions of innocents. Chickens coming home to roost, indeed.

Indirectly it does harm the effort in that Bush's deceit is exposed and it further weakens him politically.

Yeah, you don't think exposing Enigma and Roosevelt's and Churchill's associated deceits would have weakened them politically? To the contrary, I think it goes to show that the whiners are a bunch of pussies. Excuse my French.

12/20/2005 01:38:00 PM  
Blogger ExDem said...

I am fed up with they way folks in Washington get away with leaking national secrets.

I have been involved in SCI projects for decades, and if I ever leak any of that information --- I will lose my job and go to jail.

But Senator Rockefeller can expose a Top Secret effort and get a pass.

Someone (Mark Levin?) recently suggested that a House or Senate oversight committee call in witnesses, grant them immunity for everything but perjury, and find out where these leaks came from, and make sure that each and every leaker is fired.

This would be a good beginning at CIA and State Department house cleaning.

I know it will never happen --- people inside the beltway keep each other covered.

12/20/2005 01:51:00 PM  
Blogger Kevin said...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

12/20/2005 01:58:00 PM  
Blogger Bigger Diggler said...

I am not sure why the Fourth Amendment is mentioned in this context. I noticed that in the Jose Padilla case, the government has already conceeded that almost none of the valuable intellegence material extracted from him whilst rotting in the brig can be used against him in his criminal proceedings.

Pretty near every week, a client hollers "But the cop didn't read me my rights!" My usual response is "You have obviously been watching Law and Order too much."

I've been doing criminal defense almost exclusively for 11 years now. It is obvious, even axiomatic, that none of the phone calls that Bush intercepted without a warrant will ever see the light of day in a criminal court. So to speak of the Fourth Amendment in this context indicates that the writer is stuck in the pre-911 mindset of fighting terrorism through law enforcement methods. I certainly HOPE that none of the Al Quaeda agents that were spied upon are prosecuted in a court of law: I would look at that as a towering defeat and a stupid and pointless renunciation of lessons learned post-911.

This whole debate, had it occurred in the early 1800's would have run something like this: May we intercept, or attempt to intercept communications between British Troops who are burning down the White House without first availing ourselves of a search warrant?

12/20/2005 01:58:00 PM  
Blogger Ash said...

ledger wrote:

"This is the kind of "failure of the imagination" that led to 9/11. Are we or aren't we allowed to monitor people inside the country who may be about to perpetrate terrorist acts?"

This issue has nothing to do with whether it is possible to monitor people inside the country or not but simply whether the President can order it because he wants to or whether there should be some check (judicial oversight) to his power. Are you in favor of making the President a king? Can he weild power simply because he says "look out for the terrorists"?

12/20/2005 02:02:00 PM  
Blogger dueler88 said...

What I find particularly intriguing is that the net result of the action by the NYT will likely be that LESS communication and oversight will take place. The first posit in this context was that our allies will be reluctant to share information with us because of our inability to keep a secret, therefore placing the lives of our allies' citizens in jeapardy.

I will add to that the following: if I were W, I would be very reluctant to share the nature of intelligence/counterintelligence operations with ANYBODY outside of those critical to those operations.

W is in a bind. He is sworn to defend the citizens of the United States. In order to effectively do so now, however, he must bypass oversight.

With this leak, the NYT has forced one of two very negative results: that ANY President (not just W) may be forced to (technically) act outside of the law to protect the citizens of the U.S., or that a string of leaks by the media will aide the enemy.

Nice going, NYT - and whoever leaked it to them.

12/20/2005 02:07:00 PM  
Blogger wretchard said...

A number of posters have argued that whatever the wiretap's value they were not worth the erosion in rights their pursuit entailed. But in reality, probably none of us have any real idea what the wiretaps were worth, and neither, I suspect, did the NYT. Secure oversight procedures which include members of Congress, are there so that presumably better informed individuals could make those judgments.

I think it's clear from the variance of opinion that entirely reasonable lawyers can be on both sides of the legality issue. But it is clear from events that the NYT decided, on its account, to cut this legal Gordian Knot and deliver its own final and executory judgment on the surveillance program. They believed, perhaps corrrectly, that the oversight procedure should have incorporated FISA. This opinion is at variance with the advice of "the NSA Legal Counsel and the U.S. Attorney General" who recommended differently. However that may be, by running the expose the NYT passed judgment, not only on the surveillance program itself, but on the oversight mechanism supervising it. In effect, they overruled the "the NSA Legal Counsel and the U.S. Attorney General" entirely.

Many posters have made deeply felt points about the need to preserve American freedom. The question that suggests itself is whether there is not some threat to freedom in the NYT's actions. Presumably somebody elected the President and Congressmen and charged them with running the war. There is always some damage to liberty when some arbitrary individual can appoint himself both judge, jury and executioner. Those who believe this description applies to President Bush should in fairness admit the shoe can fit the NYT as well. Can this surveillance, whatever its worth, whatever it's legality, proceed now?

Technology is not entirely irrelevant here. What makes this case special is that signals intelligence depends to very large degree on secrecy. It's not enough to invoke the truism that 'everybody knows wiretaps are used' to argue there is no damage. Once the details are revealed -- and they will continue to be amplified as this story develops -- the specific surveillance program is fatally damaged.

12/20/2005 02:12:00 PM  
Blogger Bigger Diggler said...

"Are you in favor of making the President a king?" No, just the Commander in Chief who should have the very same discretion that every single other minor hick law enforcement official has every day in every jurisdiction in the United States.


Can he weild power simply because he says "look out for the terrorists"? The similar argument "look out for the drug dealers" has been the war cry for increased law enforcement discretion as the Renquist Court sharply curtailed Fourth Amendment protections. We in the business refer to it as the "Drug Exception" to the Fourth Amendment, the average layperson of course opposes letting the criminals off because of a "technicality."
Similarly, there should be a "terrorist exception," particularly where nobody should ever be interested in prosecuting terrorists and thereby invoking the Fourth Amendment at all.

12/20/2005 02:12:00 PM  
Blogger Nathan said...

Are you in favor of making judges kings by fiat? Judicial oversight over everything a President does makes him nothing more than a lackey for the courts.

12/20/2005 02:13:00 PM  
Blogger ExDem said...

Are we or aren't we allowed to monitor people inside the country who may be about to perpetrate terrorist acts?

YES we are --- read the FISA law.

--------------------

This issue has nothing to do with whether it is possible to monitor people inside the country or not but simply whether the President can order it because he wants to or whether there should be some check (judicial oversight) to his power.

YES the President can order it without court permission --- read the law.

YES there are checks, and the President operated within them.

--------------------

Are you in favor of making the President a king? Can he weild power simply because he says "look out for the terrorists"?

NO President Bush is not a King.

He is the President of the United States --- operating according to his oath of office.

12/20/2005 02:14:00 PM  
Blogger Tony said...

Engineer-poet (nice name, btw) - Clinton wasn't impeached for Monica, the Independent Counsel wasn't seated to investigate Clinton's adultery. He was impeached for perjury and obstruction of justice. The Independent Counsel was renewed and signed into law by Clinton.

This whole humiliating adventure began with the a savings and loan scandal, where Bill and Hill's business partners and others were sentenced to prison. The investigation led into Filegate, where confidential FBI files of Republicans were improperly distributed to Clinto staffers, and it led to Travelgate, where the Clintons fired the White House Travel Office staff and sicced the FBI on them on fraudulent charges. You think the Republicans somehow caused the Clintons to attract all this attention. The only reason that Monica played a starring role is because she had the only evidence that Clinton couldn't obscure.

If this Republican blood-sport witch hunt so distracted Clinton, why did he drag it out with almost two dozen thoroughly bogus appeals for various imaginary executive privileges and other dodges? The only reason Monica came into the picture was because Clinton was trying to obstruct justice in a civil case by Paula Jones, who Clinton eventually settled with. Once the Republicans were on to him with so much evidence, so many convictions in Whitewater, so many other misuses of power, they stayed on him. If this was such a danger to the country, he could have resigned.

This is bullshit to compare the exposure of top secret NSA operations to the stink of Whitewater, Monica and all the rest that Clinton brought on this country.

The only regret I have is that Ken Starr didn't spend all that time investigating the proven crimes of the PRC peneteration of the Clinton White House in the fundraising scandals. There were hundreds of guility pleas, record fines paid by long-time Clinton associates like Lippo Group and Bernard Schwartz of Loral and on and on. Monica was nothing. To compare these two series of events, Clinton's personal failings and this long series of leaks of classified intelligence during this war is like comparing sand and water. Some similarities, but not bloody many.

12/20/2005 02:27:00 PM  
Blogger Nathan said...

You know, a President is elected to office. I presume that the people who voted for the President should expect some kind of agency. I didn't vote for a shoeshine boy.

12/20/2005 02:28:00 PM  
Blogger Ash said...

wretchard, I don't think you have demonstrated that the "the specific surveillance program is fatally damaged." It has simply become public knowledge that the NSA sometimes monitors communications without FISA warrants. How has this fatally damaged the program?

As far as the legality of the operation one can hire any number of lawyers and you can cherry pick opinions all you like, or the ones you hired may all confirm your idea of the legality of the situation but simply stating thier opinions to the public does not make it law. biggler digglers arguments are interesting I find. bd, are you, in the end, arguing that the 4th amendment is no longer valid due to the precedents set by the 'war on drugs'?

nathan, no one is suggesting that Bush can't do anything without judicial oversight but rather that there are laws on the books that specifically deal with survellience and he need follow them like everyone else. Note, no war has been declared, the best he can do is to try to broaden the force authorization.

12/20/2005 02:36:00 PM  
Blogger Old Dad said...

Wretchard et al,

Excellent post and comments.

I believe it was the Founder's intent to grant the Executive extraordinary powers in war time, powers that could take us into troubling and ambiguous territory.

I think the FISA recognizes and respects this grey territory.

We depend greatly on the judgment of the executive in these extraordinary circumstances. In this instance, I support the President's judgment, but as Wretchard points out, there is much room for disagreement.

That's what elections are for, to govern Executive judgment. Calls for Impeachment are hysterical and unfounded in the extreme. Those who hate the President are free to do so. Likewise those who question his judgment. The proper remedy in this instance is at the ballot box.

I think the Dems have blown what would have been an excellent chance to make progress in '06, and yes the '06 elections will hinge largely on national security and as a referendum on the Bush Administration.

12/20/2005 02:43:00 PM  
Blogger Bigger Diggler said...

"biggler digglers arguments are interesting I find. bd, are you, in the end, arguing that the 4th amendment is no longer valid due to the precedents set by the 'war on drugs'?"

No, I am saying the Fourth Amendment is more a term of art than a scientific maxim carved in stone, very elastic in application and fluid in enforcement and its been bent beyond the breaking point many many times pre-Bush. I am not arguing that the Fourth Amendment is not valid, only that Bush's errors and omissions, if any, should be examined in the same context of everyday law enforcement, which too often recieves a pass. I am arguing that Al Quaeda should not recieve more protection and public scrutiny than Al the Quaalude dealer, only because the former is lucky enough to be pursued by Bush. Therefore, the NYT's breathless expose is a non-story, promulgated by the ignorant and pounced upon by the inexperienced and the vain. Context, my man, Context.

Wondered Rehnquist "Have we elucidated a sound legal principle here with a few tidy exceptions, or is this a monument on a judicial darkling plain where ignorant armies have clashed by night?"

12/20/2005 02:49:00 PM  
Blogger PD Quig said...

Geoffgo,

Fair points both. “Erred” was a poor choice of words (“opted” was what I meant). Moreover, the more I read the more I agree that attempting to route this intel through the FISA process (even a dramatically more efficient one) was not reasonable. I have to grant that Bush knows better than the rest of us that he is at war with both at home and abroad.

12/20/2005 02:57:00 PM  
Blogger Bigger Diggler said...

bd, are you, in the end, arguing that the 4th amendment is no longer valid due to the precedents set by the 'war on drugs'?"

No, I am arguing it is not valid given the precedent of the War of 1812, wherein nobody would have even thought to get a warrant before intercepting communications between British troops. In that war, unlike the present one, one siezing enemy communication would have been called a "hero," not accused of being a "lawbreaker."

Should the Allies have gotten a search warrant before siezing Enigma materials in World War 2? This is not a rhetorical question.

12/20/2005 02:57:00 PM  
Blogger Cruiser said...

Ash:

You said "there are laws on the books that specifically deal with survellience and he need follow them like everyone else."

Some of us are explaining that the separation of powers mean that the "laws on the books" cannot limit the President's ability to wage war (just as the President cannot begin passing laws or hearing court cases).

If the congress passed laws that told the President how to and where to deploy a particular army division in battle - would that law be binding on the President? I'll answer it. Heck no!

Perhaps congress could severely limit the Presidents ability to continue conducting this eavesdropping by passing a law that states that the war against Al-Q is over and removing the presidents authorizations to wage war against them. Somehow I suspect that the Dems don't have the courage to do that (because they would not win a position to national office for 20 years after that). We conservatives know that they do think the war is over. We would love to see them tryo to assert their true beliefs. They won't. Instead they will carp from the sidelines and reveal classified information to stymie the war effort.

12/20/2005 03:00:00 PM  
Blogger RWE said...

A couple of points:
1. In WWII the Japanese lauched some 15000 balloon bombs at the U.S. When the bombs started coming down the Fed Govt contacted the press and asked them not to print any stories about the attacks. The press did not print anything and as a result the Japanese quit launching the balloons. This voluntary coverup did result in the deaths of a few civillians who were foolish enough to tamper with bombs they found, but is a great example of a free press being responsible in time of war.
2. While people scream about the NSA spying the Democrats are desperately trying to cover up illegal and improper actions by the Clinton Admin by squleching an investigative report that very probably confirms that the IRS was used as a political hit squad. Once again, the liberal press' selectivity is astonishing.

12/20/2005 03:05:00 PM  
Blogger Pierre Legrand said...

This is treason plain and simple.

This is giving substantial aid and comfort to the enemy in an effort help them overthrow the government by attempting to get Bush impeached. If this is not illegal under the tight constraints of the Constitution as it has been interpretated by the Liberal Supreme Court then others have taken note.

Sooner or later an attack will occur and the left better pray that they cannot be shown to be at fault if millions die because of intelligence failures. Or that civil war they have been pining for over at Democratic Underground might be visited upon them.

Just as we shied away from the Islamic Holy War being waged upon us for these last 30 years, so have we ignored the war against this great country for the last 100 by the left. Kill a few hundred thousand innocents and we may actually wake up and begin fighting the left as we have fought the Maniacs. They will rue that day.

12/20/2005 03:20:00 PM  
Blogger Nathan said...

How many lawyers does it take to win an undeclared war?

12/20/2005 03:27:00 PM  
Blogger whit said...

James Robbins has a very good article over at National Review online. He cites the FISA (with a link to the statutes) and explains line by line and point by point how the President was within the law.

http://www.nationalreview.com/robbins/robbins200512190859.asp

12/20/2005 03:32:00 PM  
Blogger RSwan said...

Ash, you want a specific example? The US the capability to track and listen to satelite phones. We used to use this capability to listen to some bad guys, including one who had an interest in a couple of buildings in New York and in Washington DC. The fact we could do this was brought out in open court (I can't remember if this was accidental or forced by the judge). Suddenly, we couldn't listen or track to the bad guys anymore on satelite phones. You know what happened next.

12/20/2005 03:49:00 PM  
Blogger ExDem said...

Whit:

Exactly right. Robbins nails the argument.

BTW --- for those who argue that you can find lawyers to defend either side of any issue I say, what's your point? If there is no truth --- if the meaning of the law is whatever the loudest or highest paid elites say it is --- then let's drop all the high and mighty shouts of "law-breaker" and "impeach him."

12/20/2005 03:49:00 PM  
Blogger Doug said...

" for those who argue that you can find lawyers to defend either side of any issue I say, what's your point?"
---
There arguments also depend on ignoring what previous Presidents have done, as if, (again) history began in 2001.
To which I say,
Please Grow up and learn how to tell the truth.
(Shut Up! Your Gonna Get Us Killed!
works also.)

12/20/2005 04:02:00 PM  
Blogger Doug said...

"Their arguments"

12/20/2005 04:03:00 PM  
Blogger Doug said...

"How many lawyers does it take to win an undeclared war?"
---
Hewitt cites court rulings which state that there is no difference in law between authorizations such as Bush is working under,
and a
"Formal Declaration of War,"
(Which is not defined in the Constitution.)

12/20/2005 04:08:00 PM  
Blogger Doug said...

Cruiser has a post on a hostage which gives a different meaning to "Dumb Like a Fox."

12/20/2005 04:16:00 PM  
Blogger Doug said...

Hewitt completely devastates Alter on the radio, Alter simply moves on as if he hasn't.
Hope it's on Radioblogger later.

12/20/2005 05:14:00 PM  
Blogger Doug said...

He's on now if you want to hear a worm talk.

12/20/2005 05:15:00 PM  
Blogger Doug said...

Like most of the lefty posters here, the fact that he has not read the case that refutes him seems not to faze him a bit, he just blathers on.

12/20/2005 05:18:00 PM  
Blogger John Dunshee said...

It would seem to me that if this complaint against "wiretapping" calls to and from terrorists in foreign countries stands, then it would open a giant loophole where conspirators couls evade wiretaps by the simpel expedient of routing calls through a foreign country. I'm glad Bush is not shutting it down.

Secondly, on the leaking, how do we know that the leakers are only talking to the NYT? There seems to be a assumption that the leakers are loyal Americans that are only doing this because someone they didn't vote for won the election. But there's no reason to believe that, having leaked to the NYT, they would be disinclined to leak to anyone else.

12/20/2005 05:35:00 PM  
Blogger rocketsbrain said...

Doug,

I agree it's like Det. Rosewood in Beverly Hills Cop I when they're taking fire at the mansion and he stands up and says, "Police - your all under arrest." He then just narrowly gets waisted by a volley of automatic weapons fire.

See my comment over at Atlas Shrugs on a related thread:

Here

12/20/2005 06:41:00 PM  
Blogger Doug said...

Powerline:
For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.

For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President's inherent Article II powers.
So far, I have found no authority to the contrary.
Thanks to reader Andrew Strnad.

(Limbaugh cited this on his show this AM)
Posted by John at 04:30 PM POWERLINE

12/20/2005 07:41:00 PM  
Blogger Cedarford said...

I would like NSA to request a Justice Dept investigation of national security leaks giving aid and comfort to the enemy. Then request special prosecutor Fitzpatrick to stay on to investigate the NSA leaker through immunity grants to all NYTimes reporters involved, and also perhaps to investigate who leaked to uncover the CIA air transport network which directly endangered CIA agents and contractors.

Then a re-convening of the Fitzpatrick Grand jury once evidence is accumulated allowing itto proceed.

Of course, Bush is a weak, mediocre President whose troubles really started not with Schiavo last year, but when he was too lazy on vacation to bother taking 10 minutes out to lead on the Great Tsunami (which presaged his lame Katrina response). So he may not want to get in a pissing contest with the Times. But on the other hand, how much more anti-American, anti-military, and anti-Bush can the NYTimes become in retaliation. The plus part is that the chickens the NYTimes unleashed with the "Super Agent Plame Betrayed" myth would come home to roost, and if the Dems were the ones leaking classified info to hurt America to get to Bush - watch out, Jay Rockefeller!!

As for the danger to enemy civil rights, I'm not too concerned about the enemy. Nor the idiot Lefty/extreme libertarian "slippery slope argument" that says a threat to terrorist "rights" is a threat to all of us. By the same logic, a Marine killing a Jihadi fanatic in Fallujah is just bound to be going down the slippery slope to shooting American children with his M-16..."Because once you start killing the enemy, its just a matter of time befre all our lives will inevitably be in danger from the weapons of US servicemen.."

12/20/2005 07:48:00 PM  
Blogger wretchard said...

Ash,

One day in the natural course of events there will be a Democrat in the White House who may imagine that he received a mandate from the electorate to carry out his campaign platform. In fact, there was one such in recent history. Let's imagine his political foes discovered a secret program funded by budgetary lies, located in the New Mexico desert, whose aim was to create a weapon that could not be aimed precisely, but which was principally useful for killing hundreds of thousands of civilians. Imagine further that the pretext on which this nightmare project began was the assumption that the enemy had a similar program nearing completion, when in fact (as facts would prove) he did not. Imagine further that this President had interned, without benefit of trial, tens of thousands of ethnically different Americans, whose sons were fighting in Italy to prove their loyalty to their country. Would it not be justified to expose this story on the front page of the New York Times and call for that Democrat's impeachment for high crimes and misdemeanors?

Or would you rather conclude that this President and the Congress which appropriated the money for the project, so manifestly reprehensible, may have had sound reasons for doing so, and it was best to begin questioning this dubious effort through every legal avenue possible before exposing the endeavor to the gaze of the enemy?

Now one may argue there is no comparison in scope between the A-bomb and the wiretaps other than that both were secret projects. Yet who makes the judgement? Why in principle could they not have adjuged exposing the A-bomb to be worthy, granting that they have this prerogative?

12/20/2005 08:15:00 PM  
Blogger Red River said...

Wretchard wrote:

"Technology is not entirely irrelevant here. What makes this case special is that signals intelligence depends to very large degree on secrecy. It's not enough to invoke the truism that 'everybody knows wiretaps are used' to argue there is no damage."


Technology is the primary driver in this case - not just in the collections side, but also in the target side - technology allows the AQ operative to communicate rapidly across the world across all State boundaries.

Once a call is placed, it may be placed to several people, who then make calls of their own. In a matter of hours a comm net may come up then go back down and may cross mediums - phone, short wave, email, and fax.

The concept of a wiretap is similarly broadened and virtualized by technology - and - I imagine - because of logs - the dimension of time is parseable.

Here in this case, also, can be seen the the very long shadow of John Boyd, again, of whom Dick Cheney was an admirer. The NSA clearly wants to rapidly build upon success to be able to rapidly react and exploit any major breakthtroughs.

12/20/2005 08:18:00 PM  
Blogger HK Vol said...

Could/should the leaker of the information to the NY Times be considered a traitor? If so, I assume he would be hung if convicted? When was the last time that someone was hung for being a traitor? Surely it was sooner than George Washington's approval of the hanging of Benedict Arnold. It seems that our forefathers considered traitorous behavior condemnable by death. Nowadays, you get praise in the New York Times.

12/20/2005 08:35:00 PM  
Blogger john marzan said...

This comment has been removed by a blog administrator.

12/20/2005 09:23:00 PM  
Blogger Charles said...

The meta story here is not really WWII into which the NY Times fits their revelations but rather the way in which the relationship between the US spy agencies and the rest of the US government opened up a chasm of distrust in the covenential relationship between the US government and its people. And here I'm referring to Venona Cables which revealed that during WWII and afterwards the Manhatten Project and the US Government were soaked with Russian Spies. However, having learned the truth about Russian spying -- the NSA, the US spy agency that broke the Russian diplomatic code would not reveal that they had learned the truth for fear of revealing to the russians that they had broken the Russian code. (The russians learned about it anyway in 1948.)

This is the historical context in which NY Times broke the wiretap story as well as the reason someone at the NSA leaked them the story.

Edvard Radzinsky in his book "Stalin" argues that while at one time Stalin hoped Jewish financial capital would help rebuild the Soviet Union after the WWII, Stalin hated the prospect of suborning himself to the Baruch Plan for nuclear controls--presented in 1946. Stalin's particular animus toward the Jews from that time forward was that the Baruch Plan had way too many Jewish signatures on it.

This refusal lead to a total break by Stalin who after fomenting the Doctor's plot hysteria and breaking off diplomatic relations with Israel, was within days of preparing to exile the Soviet Jews to the Gulag (as was done previously with various other ethnic minorities such as the Crimean Tatars, Chechens, etc.), and initiate another great purge along the lines of 1938 to once again prepare the Soviet Union for war.

The important thing to recall is that the Doctor's Plot happened at the same time as the McCarthy anti communist business from 1950-54

Stalin already had the concentration camps set up. And some of the preliminary accusations had gone out for the Doctor's Plot when he died in 1953.

At the same time the Rosenburgs were tried and executed for treason in the USA in 1953--and this less than a decade after the Holocaust. This naturally caused fear and suspicion in the US Jewish community. This fear and suspicion was played upon by knowledgeable communists and leftists--large numbers of whom were jewish. These folk not only knew about what Stalin had done in the 1930's and was about to do with the doctor's plot--before he died-- but also saw the Rosenburg trials as show trials american style ... that is, a prelude to an american pogrom.

What Stalin had planned to do-- in a brilliant piece of jujitsu --leftists and communists imputed to Americans on the right. But it was done soto voce. Basically a blood libel was perpetrated on Americans without their knowing it.

While the American public outside NY/LA were generally given the view that the McCarthy era was an age when innocent men were unjustly tried by suspicious anti semites like McCarthy & Nixon--the NY/LA Jewish establishment was given a different story. They were given to understand that the democrats/liberals had prevented the US from visiting a holocaust on them. And that therefor American Jews owed their loyalty to the liberal democrats because the liberal democrats were the protectors of the Jews.

And this Meme went on untouched for decades after McCarthy.

This dual track story line didn't crack until the early 1990's when the kgb/nkvd/gru opened up their files on the WWII-McCarthy Period. In 1995 the US's NSA agency opened up their Venona files. Both Russian and American spy agency files showed that McCarthy was right. The US government --as well as the Manhattan Project--had been at one time soaked with Russian Spies. The Rosenburgs were guilty. While McCarthy was wrong in all the details he got the general outline of the story right. Why did he get the outline right and the detail wrong. The reason is McCarthy's relationship to Hoover was the same as Hoover's relationship to the NSA.(The NSA told the FBI about the Venona intercepts but insisted that the FBI could not use NSA intercepts as evidence in court. The FBI had to develop their own leads. As a result most of the spies escaped. The FBI did not get their man. In 1950 J Edgar Hoover began weekly meetings with Joseph McCarthy. Those meetings ended in 1954. The beginning and end of those meetings coincided with the beginning and end of McCarthy star turn in the national spot light. McCarthy got most of the details of the spy story wrong but he got the general outline of the story right. His predicament was the same as that of the FBI. To this day the FBI denies that Hoover told McCarthy anything about the Venona Cables and maybe Hoover said nothing explicit to McCarthy for which Hoover could be liable in court.)

Needless to say, an American style shoah was never in the cards.

The reason that hollywood hated Ronald Reagan so much was that he was an anti communist in hollywood during the McCarthy period. During this period to be staunchly anti communist in Hollywood or NYC was to be at least vaguely anti semetic because in the 30's to the 50's communism was considered to be almost a secular form of Judaism in the Jewish communities of NY/LA.

Reagan was among the first wave of FDR democrats to switch parties. Reagan was blacklisted from Hollywood. He couldn't get work there after McCarthy. However, his experiences in Hollywood served him well when he went into public service. He always understood the jujitsu of media talk of the age. Something that cannot be said of Nixon.

The New York Times article comes in the context of two other memes today.

Actor George Clooney is directing a McCarthy topic film now open in theatres. The film called "Good Night and Good Luck", in which Clooney also stars, is a look at the impact of McCarthyism on 1950s America. This movie keeps up the part of the meme known to the general american public about the McCarthy era:innocent men were unjustly tried by suspicious anti semites

The other side of the meme is kept up by Anti-Defamation League’s Abraham Foxman who has been sounding off about the conspiricy to christianize america. www.foxman.notlong.com
Why the paranoia about christians being christians in the USA. It dates from the McCarthy period--and not WWII.

When I hear American based Moslems talking about McCarthyism being visited on them. I have to laugh. They don't know that they have pronounced themselves guilty in the eyes of many Americans.

As for the democrats, part of the reason for the loss of their inner coherence has been that part their foundational raison d'être steming from the McCarthy era was revealed to be based on a lie. So now the core of the democratic party is the sodomites. Those folks are not just confusing. They are confused.

And so it is with the NY Times.(and J Edgar Hoover, and Roy Cohn for that matter.)

12/20/2005 09:43:00 PM  
Blogger Das said...

Wretchard's point - that the NYT, by going ahead and exposing Bush's gray area decision making, has effectively weighed in as a player - is brilliant. Bloodsport indeed.

How does the president exceed authority when an active threat seeks to demolish the free citizens who generate that authority? If we're all sitting around in rubble with our skin hanging half off will we take much comfort saying to one another "no citizen is above the law?"

12/20/2005 09:49:00 PM  
Blogger truepeers said...

I believe it was in knowledge of the imminent bombing of Coventry that CHurchill decided not to defend the city lest it give away to the Germans that he had the Enigma machine. In effect, he allowed the mass killing of his own people in order to defend a secret essential to the security of the state.

SUch examples show us that the exigencies of survival make all that one might consider, in the abstract, to be the essential duty of the state to be in fact negotiable, according to context. The real question is why are so many Americans, especially in the cities most under threat of a future WMD attack, so slow to grasp and negotiate the exigencies of their survival?

12/20/2005 09:50:00 PM  
Blogger john marzan said...

Hi Wretchard. Can you also comment on the ISAFP wiretapping case in the PHilippines?

Because it's kinda similar to the case in the Philippines where our own Intelligence Service of the Armed Forces of the Philippines (ISAFP) have been conducting wiretapping operations on just about everybody -- including administration and opposition candidates, election officials and members of the media during the runup to the 2004 elections.

Can't tell though if ISAFP is still conducting secret wiretaps against government officials or not since Mrs. Arroyo doesn't seem interested to know who ordered ISAFP to do the wiretapping.

Finding out who ordered the wiretapping could complicate her political problems, I guess. ;)

So the US eavesdrops on suspected terrorist phone calls huh? But how would the complexion of the story change for the Bush administration if it was found out that they were also conducting secret surveillance on Democrats and Republicans, US gov't officials, members of the press etc...

Here's more more on the Philippine president Arroyo and the wiretapping issue here:

http://partners.inq7.net/newsbreak/cover/index.php?story_id=57201

12/20/2005 10:34:00 PM  
Blogger truepeers said...

After telling that old story about CHurchill and the bombing of Coventry, I thought I should check to see if it still holds water. Apparently not: if this is correct, part of a long thread

12/21/2005 12:03:00 AM  
Blogger truepeers said...

But I think the larger point holds (hope this it not too obvious to state): in war, strategic secrets must be maintained at the cost of more marginal constitutional values. A constitution, after all, is ultimately a covenant to protect life, liberty and property and it should not be allowed that one clause in the covenant have the effect of undermining the whole. If the U.S. is at war, it must make certain sacrifices; apparently many Americans don't think they are at war.

12/21/2005 12:08:00 AM  
Blogger ledger said...

It remains to be seen as to whether Mr. Johnson is correct, although I must admit that it sounds convincing to me. -Kevin

I don't want to go OT but, Kevin you are referring to the (((((Rev. Larry C. Johnson)))))

The one and only (((((Rev. Larry C. Johnson)))) of the "Holy Church of the Divine Evolution." I think you have hooked a kook (assuming it's the same Larry C. Johnson).

The good Reverend is one of the most wild, shoot from the hip,conspiracy theory weavers, leftists, around. He claims to have been in the army in Vietnam yet never seems to verify it. He has a chain of smear posts so long it drags sparks. The guy is right up there is Ward Churchill (and that's being charitable).

He rabidly attacks other posters on The Motley Fool PA board so I did some research on old Larry Johnson. Here is some of what I found :

[TMF PA board]

I was surprised to see such a viscous attack against SeattlePoineer from a man of the cloth Reverend N56629 (AKA Larry C. Johnson). Rev. N's attacks don't fit the profile of a Reverend (teaching tolerance, love and peace). Reverend N56629 claims to have founded "Holy Church of the Devine Evolution"

(N56629: "I'm an ordained minister in the Universal Life Church and founder of the Holy Church of the Devine Evolution." [link]

Then ScottFairfax found the source of Rev. N56629 legitimacy. It is a "3 minute" process that's "legal." I looked at the site and found it dubious. Further, I now am concerned with Rev. N56629 legitimacy as a true Reverend. For those of you who are knowledgeable on the subject of becoming a Reverend - can one become a Reverend in 3 minutes?


See: Rev ""3 minute" N Attacks SP

'Poster notes: N56629 [Larry C. Johnson], smear artist'

[UsuallyReasonable]:

re this post, titled "BUSH SUPPRESSING INVESTIGATION OF SAUDI FRIENDS":

N56629 [Larry Johnson], you've finally gone off the deep end. You've now made it totally clear that the truth doesn't matter to you, as long as there's a smear to be made.

There is absolutely nothing in the article you linked that even purports to link President Bush to the as-yet-unproven-but suspected link between the Saudi Government and the hijackers, or to state that he is "suppressing" the investigation. There is no such insinuation, and nothing is even said about it.

Nothing.

Zero.

Yet what do you put as the title of your post?

"BUSH SUPPRESSING INVESTIGATION OF SAUDI FRIENDS".

The article doesn't say that.

N56629 [Larry Johnson], It is absolutely ridiculous that you would make such a statement. You should be ashamed of yourself.

Really. This is just plain lower than low. If you're going to talk about politics (and may I suggest you stop?), please try to keep it within the realm of reality, and out of the sphere of paranoiac delusion.

UsuallyReasonable


See: UsuallyReasonable

[and]

date: 04/20/2002 author: IronFelix
N56629 - A Registered Fool Since February 1999 Previous User Name(s): lcjohnson (5/3/99) Real Name: Rev. Larry C. Johnson --- You must be the "Reverend" of The Church of Holy Imbecility. ...


'Larry and Carl'

[chrisMcAdams satire of Larry]

Two old friends, Larry the Liberal and Carl the Conservative, walk into a bar to have a drink. As they sit down…

Larry: Our civil liberties are going to hell!

Carl: How's that, Larry?

Larry: Didn't you see that they are holding Jose Padilla, an American citizen, without charging him or giving him the benefit of a trial by a jury of his peers? It's a clear violation of the Constitution.

Carl: I don't know. We're in a war situation. Can't we just hold him till this whole thing is over? What's the harm?

Larry: Well did you hear about the pending legislation that would limit how much we could sue for medical malpractice? That's a disgrace.

Carl: Larry, medical lawsuits are already out of control.

Larry: Well did you see that the President wants to make it easier for the Government to wiretap our phones and read our email?


{you will have to read the rest to get the punch line}

see; Larry and Carl

01wmarsh, N56629 [Larry C. Johnson] is a troll. The way to deal with a troll is not to feed him, and he will eventually go away when his targets refuse to reply to his posts. If one continues to feed a troll, he will continue to post insults and nonsense. That is all I have ever read from N56629, and that is why he is in my p-box.

See: N56629 is a Troll


[some of Larry C. Johnson's AKA N56629, gem's]

'Typical Right Wing Chistianist Spew'

'Letter From RIGTIST murder'

'The RELIGIOUS REICH (RIGHT)'

To verify Larry Johnson is the same Larry Johnson you linked to go to:

http://www.fool.com/

Type in search box: Rev. Larry Johnson

Click find [none appear in 2005]

Click 2002 or 2003

You will get many hits if you type all of his handles such as N56629 and the others.

12/21/2005 12:56:00 AM  
Blogger truepeers said...

It's odd for me to reflect on the Churchill Coventry story that I've carried for some years since I heard it from a reputable historian. Well, he's not so reputable to my mind anymore. For I now see that I was suckered by a victimary myth, the kind of leftist narrative that I thought I had learned to see right through, but such is the hold of victimary thinking... While my instinct was that the story reflected on Churchill's ability to make the tough decisions with a cold eye for the realities of war, it seems the story was never meant to convey that reality but rather speak to those who cannot ever see the justifiable sacrifices in war and must hate leaders who do. Plus ca change...

12/21/2005 02:19:00 AM  
Blogger playah grrl said...

wretchard, I don't think you have demonstrated that the "the specific surveillance program is fatally damaged." It has simply become public knowledge that the NSA sometimes monitors communications without FISA warrants. How has this fatally damaged the program?
That program was designed to exploit a specific channel of classified intel. That channel is now compromised. Once the adversary knows what we do they can protect against it.
And you fools that believe the leakers were NSA--read more carefully. The NYT explicitly fails to mention the agency that holds the billets of the "nearly a dozen current and former officials".
Watch and listenThe leakers were CIA or congress.

12/21/2005 03:19:00 AM  
Blogger Doug said...

Newsweek's Jonathan Alter
by Hugh Hewitt
was my guest this evening. Radioblogger will have the transcript up later.
UPDATE:
When you are done reading the transcript of the Alter interview, be sure to read Andrew McCarthy's take down of all MSM speaking on the issue of the warrantless surveillance of al Qaeda communications with its American agents. It is an extraordinary piece, not just about basic ConLaw, but also about cluelessness in the MSM.

12/21/2005 04:06:00 AM  
Blogger Doug said...

Thanks much for the Larry Johnson outing Ledger:
He's right down Kevin's alley.
---
I read about him once, over a year ago, and when Kev mentioned his name, somehow his singular banality came back to me in an instant.
Why Kevin chooses to pollute his brain with trash like that is beyond me, but it sure gets in the way of getting in touch with reality.

12/21/2005 04:16:00 AM  
Blogger a psychiatrist who learned from veterans said...

Having come through Instapundit and his ape sex postings to get here, my musing is that this story is really about 'Punch' Sulzberger having the ding-dong for America today rather than than Bushswagger and if that ends up making Punch Osama, King Kong's, main girl hey it's a party isn't it?

12/21/2005 04:17:00 AM  
Blogger Doug said...

Ledger,
see my 9:30 AM.
Remember, I read about the guy once, over a year ago.
In a field of jerks, he must be exceptional.

12/21/2005 04:21:00 AM  
Blogger Doug said...

New York Times vs. History and the Law
It is quite remarkable that the New York Times has launched a campaign to persuade the American people that the President does not have the power to order warrantless electronic intercepts for national security purposes.
No court, as far as I have been able to determine, has ever so ruled.

As noted below, the federal courts have consistently held the precise opposite of the position urged by the Times, as in this article from tomorrow's paper, titled
"Cheney Defends Eavesdropping Without Warrants."

Has any administration ever backed the position now urged by the Times?
It doesn't appear so. Matt Drudge points out that the Clinton administration engaged in warrantless wiretapping.
Deputy Attorney General Jamie S. Gorelick wrote that the President "has inherent authority to conduct warrantless searches for foreign intelligence purposes." That is an accurate summary of the holding of every federal court decision that has addressed the issue.

On May 23, 1979, President Jimmy Carter signed an executive order that said, "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

12/21/2005 04:44:00 AM  
Blogger Doug said...

Qaeda Relocates to U.S. for Spy-Free Calling .

(2005-12-21) — Al Qaeda announced today it would relocate its international headquarters to an unnamed U.S. city in order to take advantage of espionage-free local, and state-to-state, phone calls.

“Al Qaeda will thrive in the land of liberty,” said an unnamed spokesman on a 30-minute pre-recorded DVD.
We’re still shopping for a primary location with great access to transportation and, Allah be praised, good public schools.”


ScrappleFace

12/21/2005 04:45:00 AM  
Blogger Doug said...

4:44 AM - post ht Powerline

12/21/2005 04:46:00 AM  
Blogger ledger said...

Getting back on track, I agree with mal's link to the Opinionjournal article. And, thanks to Doug I did read the stuff that the lawyers at PowerLine wrote and I concur.

I essence, the Fourth doesn't prohibit the CIC from conducting warrantless searches. Next, via the United States v. Truong Dinh Hung case (and others) let stand the CIC's ability to conduct warrantless searches both inside and out side the USA. Further, other past CICs have done the same.

[Powerline]

...Matt Drudge points out that the Clinton administration engaged in warrantless wiretapping. Deputy Attorney General Jamie S. Gorelick wrote that the President "has inherent authority to conduct warrantless searches for foreign intelligence purposes." That is an accurate summary of the holding of every federal court decision that has addressed the issue.

On May 23, 1979, President Jimmy Carter signed an executive order that said, "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order." The Clinton-era "Echelon" electronic surveillance program went far beyond anything now under discussion, and became controversial precisely because of its extraordinary scope. A transcript of a 60 Minutes program on Echelon is available . But the basic concept that the President could order warrantless searches for national security purposes wasn't controversial during the Carter administration or the Clinton administration. Why is it suddenly controversial now?


see: New York Times vs. History and the Law

I agree with Bigger Diggler that if the democrats/NYT are going to make such a high profile case out of the President using warrantless searches they should also do the same for the ordinary Joe who is jailed using warrantless searches.

And, why such a fuss about a year old story by the NYT's and there democrat buddies?

I think answer is becoming clear. The NYT and their democratic buddies can no longer afford to be under surveillance because they may possibly be dealing with the enemy. For more insight you will have to go back to Fitzgerald's complaint that NYT editors Philip Shenon and Judith Miller tip-off the terror-funding Islamic charity "Global Relief Foundation" just before a Federal raid (the charity pack-up and fled before the raid).

One might ask how does this affect the NYT current position? It's possible the GJ could still be opened on the case and/or the Feds are still collecting damaging evidence on the NYT which could not only implicate them but also some democrats (See: Post 10% down thread).

geoffgo makes a good point: Did it ever occur to you that AQ has American lawyers, dissecting our legal system, many working pro bono?

Yes, and the NSA surveillance may prove very uncomfortable to those lawyers aiding AQ.

ExDem said:

I have been involved in SCI projects for decades, and if I ever leak any of that information --- I will lose my job and go to jail.

But Senator Rockefeller can expose a Top Secret effort and get a pass.

Someone (Mark Levin?) recently suggested that a House or Senate oversight committee call in witnesses, grant them immunity for everything but perjury, and find out where these leaks came from, and make sure that each and every leaker is fired.


Good idea. But, the surveillance mechanism just may expose them before the oversight committee is seated. That could drag down more dem leakers or leaker allied with the dems (as some posters has noted there is a small war going on between the Administration and the intelligence agency). That, may be why the dem's don't want the Patriot Act renewed.

dueler88 drills down deeper the rabbit hole of intelligence leaks:

What I find particularly intriguing is that the net result of the action by the NYT will likely be that LESS communication and oversight will take place. The first posit in this context was that our allies will be reluctant to share information with us because of our inability to keep a secret, therefore placing the lives of our allies' citizens in jeopardy.

I will add to that the following: if I were W, I would be very reluctant to share the nature of intelligence/counterintelligence operations with ANYBODY outside of those critical to those operations... Nice going, NYT - and whoever leaked it to them.



How true. It appears that the leaking game must end - and it will probably mean a loss of some lucrative positions with in the dem/Agency/MSM triangle. Again, that why they don't want the Patriot Act renewed.

12/21/2005 05:03:00 AM  
Blogger Doug said...

Ledger,
Can't recall where I read/heard it today, but someone else mentioned that some of these leakers quite likely leak to others, not just the New York Times.
One thing is certain, they aide the enemy whether they leak to them directly or indirectly.

12/21/2005 05:36:00 AM  
Blogger Jamie said...

Warning - side note:

I was not paying attention to politics during the Clinton era (I was paying attention to exams), but I recall a couple of thoughts I had at the time. One was that if the man would perjure himself over something that was merely embarrassing, where was the hope that he'd tell the truth about something that was illegal? Another was that he seemed to be doing a good imitation of a boy crying wolf - when he bombed the pharma facility that might indeed have been part of Osama's physical plant, such as it was, and the "wag the dog" accusations came up, were they so unreasonable given his past behavior? (Recall that the boy crying wolf was doing so not because he actually thought he saw a wolf.)

The NYT is doing the same thing, it occurs to me: they keep "breaking" stories that turn out to be groundless, dated, or irrelevant, such that I know my willingness to believe their next breathless pronouncement, at any rate, is severely strained.

12/21/2005 06:53:00 AM  
Blogger Bigger Diggler said...

The New York times sat on the story for 365 days. They should have continued to sit on it, not because it was dangerous to National Security but because it was extremely poor journalism. It is a non-story, of no public interest and importance whatsoever and absolutely ridiculous in any given legal or historical context.

Contextually, it is a stupid story. BTW, I now have the files of 32 warrantless searches AND siezures of local governments laying on my desk. Not a single Al Quaeda agent has been "siezed," with or without a warrant as a result of Bush's wiretaps

The NYT, inexplicably, has never phoned my office. But like I said earlier, this has been a slow day.

The NYT hallucinates it is breaking the next Watergate story. In reality, they are breaking the public policy equivalent of the techniques the doctors used for Jessica Simpson's new breast implants.

Lets get this straight: Literally MILLIONS of Americans are "spied" upon i.e. "searched" by government agencies EVERY SINGLE DAY. Many millions more are jailed, i.e. "siezed" as the result of a warrantless arrest. Very few of these people even get a single mention in the newspaper, a single pitiful line commemorating their unfortunate situation.

Yet is is supposedly newsworthy that Bush searches 26 in four years (less than one every two months) and doesn't sieze a single one!

12/21/2005 07:37:00 AM  
Blogger Ash said...

truepeers, I think you make an interesting point about things, and laws in particular, being different during times of war. There is no formal declaration of war at the moment. We are in a War on Terror though, and to take this as justification of War Measures leads us into an Orwellian type of world, which seems to suit the Bush administration just fine.

An interesting question is why Bush found it necessary to not get FISA warrants for the wiretaps. One poster above suggested that it was because the information leading to the wiretaps was obtained through torture. A talking head I saw on TV suggested at one point that it was because there was no real information that could have allowed for a warrant, that they are fishing, and this rings true to me.

Let us suppose they are fishing, are you all okay with that? The NSA has the technical ability to tap into the telecommunications networks and run word searchs. Do you think it fine that they screen all conversations between terrestial US folks and all abroad? Do you think that big brother should screen for combinations of words that might lead to uncovering a terrorist communication? Big Brother, since he can, should he watch what we all say in this never ending war on terror?

12/21/2005 07:41:00 AM  
Blogger Bigger Diggler said...

"Let us suppose they are fishing, are you all okay with that?"

Please give me a coherent distinction between the NSA "fishing" for information versus a local cop seemingly aimlessly driving around looking for random patterns of criminality? What do you think local cops are doing, enjoying the scenery? The car's performance? Oggling at chicks? No, they have very very specific goals they are trying to achieve using very well-outlined procedures.

There is absolutely no difference between what the NSA is doing with its wiretaps and what cops do all the time. Millions of cops are dredging for information and "spying" on unsuspecting American cities every day.

Where is the outrage? I am not sitting here holding my breath, btw.

12/21/2005 08:15:00 AM  
Blogger Ash said...

bd, there is a difference between the cops driving around public places looking for na'er do wells doing bad things and the cops rummaging through your home. Similarily there is a difference between NSA sifting through blogs and websites looking for info and their running bots probing your email and cell phone conversations and then listening to the ones they deem interesting.

12/21/2005 08:36:00 AM  
Blogger Bigger Diggler said...

"their running bots probing your email and cell phone conversations and then listening to the ones they deem interesting."

In other words, routine non-newsworthy warrantless searches. Happens every single day, everywhere by county cops, city cops, fed cops. You DID know that cops, both state and federal, monitor chatrooms and pose as underage sexual conquests and save the resulting emails to prosecute the luckless sexual predators? You DID know that drug detectives probe druggie web pages, write emails, use the internet to set up drug buys, and bust internet drug dealers every day? You DID know that police scanners pick up cellphone conversations that cops use as information to later evidence against you? And hopefully, you DID know that you are being sereptitiously videotaped, without your permission, when you are stopped by the police? And you DID know that everything you say to a cop is being pickup by that microphone on his uniform and relayed back for recording at dispatch? You DID know that drug detectives every day send citizen informants into unsuspecting people's homes without a warrant and without the homeowner's knowing permission, wired for sound and sometimes video? And finally, you DID know that if you work for the government or private business that your employer has every right to monitor your email and internet usages?

I'm still waiting for a difference.

12/21/2005 08:49:00 AM  
Blogger Ash said...

bd, sure all those things are true, but there is a difference when a cop enters your home or private place of business. Similary making a cell phone call to your neighbor is different then if you call a sex chat line. Sending an email from your home computer to yo ur son in Europe is different then posting a message on this blog. When you are at work, your employer can view your emails, they own you computer and time while at work. The cops can't view those same email info without a warrant or the permission of your employer.

12/21/2005 09:13:00 AM  
Blogger Bigger Diggler said...

I am not angry at you Ash, but this discussion really bothers me. Just because the NYT chose to publish this stupid non-story about this stupid non-issue, suddenly everybody is inflamed that Al Quaeda agents are being "spied" upon, using methods that are FAR FAR less intrusive than what other law enforcement agencies use everyday, with or without a warrant, in every single jurisdiction across the United States.

Christ, I have had several female clients that underwent full body cavity searches (by male cops) WITHOUT A WARRANT AND WITH ABSOLUTELY NO COURT OVERSIGHT AND ABSOLUTELY NO POPULAR OUTRAGE OR CONCERN WHATSOEVER AND NO MEDIA COVERAGE!!! And guess what? It was perfectly legal!!! Another female client was woke up in her house in the middle of the night, made to stand outside stark naked in below zero weather without even the pretext of a warrant, while several male cops stood around and oggled. No remedy whatsoever, no court oversight.....Nada!

Torture? Why is that suddenly an issue? For the life of me, I cannot distinguish what cops do every single day to coerce confessions out of unrepresented defendants and what has supposedly been done to captured Al Quaeda agents. It is a distinction without a difference. These are incredibly normal interrogation methods, pal.

Inhumane conditions at Gitmo bay? Have you been down to your local jail lately? Quite frankly, I have had many clients who ENVY the treatment and conditions at Gitmo!!! Conditions are far far worse at many local jails.....you can't even imagine how bad some of them are. For god's sake, the detainees at Gitmo have their own cell, do you know what an absolute and unavailable luxury that would be in local jails or prisons? Dissin' the Koran....ohgawd.....I have clients that have been beat to a pulp, to within an inch of their lives by fellow inmates and the general public believes that is all fair and square and a normal aspect of their punishment! Clients have their religious materials routinely confiscated, their belongings stolen etc and that is just part of jail authority.

Oh, but local prisoners have the right to counsel and court review, unlike our poor Al Quaeda people at Gitmo. Give me a break! Most state court judges absolutely will not interfere with the conditions of confinement under any circumstance, including when the jail chooses to withhold prescribed medications and the client ends up dead as a result. Nobody cares, particularly not the NYT. Oh, state inmates can get Habeas Corpus review.....fat chance. The chances of successful habeas review is less than getting hit by lightening.

Ordinary Americans have to tolerate far worse treatment, suffer worse conditions of confinement, far more intrusive warrantless searches than any Al Quaeda could ever imagine.

This concern with Bush's wiretaps is just incredibly demeaning to incarcerated Americans and the absolute lack of concern by ANYONE is just an insult!

12/21/2005 11:19:00 AM  
Blogger The Wobbly Guy said...

Comparing the environment reported at Gitmo and the detention barracks I worked at, Gitmo was heaven.

All the bleating by the media about it just makes me want to laugh at their cluelessness.

12/21/2005 12:07:00 PM  
Blogger Ash said...

bd, it seems as if you are suggesting that we should improve our jail system.

yeo, we should accept that all is fine and beautiful at Gitmo because you say so? Everything about the place is secret, not even the Red Cross is allowed in to talk privately with prisoners, yet we should accept its existence as an idyllic place to stay because you made a post saying it is fine?

12/21/2005 12:54:00 PM  
Blogger MikeW said...

MikeW said...

Ash and Nathan (as well as others):

First time poster here, so Hi to all.

Contrary to the thought that we are not formally at war, we in fact are so at war -- and formally so. The Authorization to Use Military Force is the vehicle by which Congress declared war. As DOug stated, there is no language within the Constitution that specifically stipulates that Congress must issue a document or resolution with the specific wording along the lines of "We declare war Against..." or "we are now in a state of war against..."

Further, if that were specifically required, then this country hasn't fought a war since WW II. That, of course is patently false. How do I know? My immediate family (every male member - dad, brothers) has fought in Korea, Vietnam, Southwest Asia (better known as Desert Storm), and the Iraq Campaign of the Global War on Terror. The President committed troops to these wars, but Congress continued to support the effort in spirit, budget, and documentarily (although those declarations may not have specifically included the words "...at war."

Finally, I saw the following posted on another website (Volokh - in a comment) and thought it to be very telling as to the issue about whether we are at war. It is a transcript from the Q&A session following an address by Senator Joe Biden to the Council on Foreign Relations on October 22, 2001. The "M" refers to the monitor of the session, a former Congressman. "JB" refers to Senator Biden. This further adds some credence to Doug's statement concerning no definition or language spelled out in the Constitution. Here is the link and then the passage. The whole transcript is actually pretty interesting.

http://biden.senate.gov/newsroom/details.cfm?id=229598&&

M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

I think he clearly understood what he thought he was doing. This is pretty definitive in his mind.

12/21/2005 01:06:00 PM  
Blogger debs said...

Just a technical point. Some commenters here have used the acronym SDI to refer to a clearance level. This is incorrect. The individual's Clearance would be Top Secret. There are some people who simply have Top Secret Clearance, no additional Access. SCI is the correct term and stands for Sensitive Compartmented Information. A person with a Top Secret Clearance may be eligible for SCI Access based on their particular job and Need to Know. SCI is an umbrella term for a number of specific programs that are highly classified. An individual with a Top Secret Clearance, and a Need to Know a particular SCI program would have to be "read in" (be told sign a form pledging to keep this information secret, etc) to that particular program for the duration of the time that they have a need to know. Once they no longer have a need to know, they are then "read out" of that program and cease to have access to information pertaining to it. They would maintain their Top Secret clearance throughout, however. The names and descriptions of the particular SCI programs are also classified.

12/21/2005 01:41:00 PM  
Blogger Bigger Diggler said...

"we should accept that all is fine and beautiful at Gitmo because you say so? Everything about the place is secret, not even the Red Cross is allowed in to talk privately with prisoners, yet we should accept its existence as an idyllic place to stay because you made a post saying it is fine?"

Conditions are awful at gitmo bay, but they are not secret. And as awful as they are, they are certainly lots better than any local jails.

http://en.wikipedia.org/wiki/Camp_X-Ray

Which is why it infuriates me that these non-issues involving the war on terror get any news coverage. How contrived! How shallow! How utterly and ruthlessly callous with respect to the suffering of ordinary incarcerated Americans by comparison! How deliberately and mendaciously devoid of any context or analysis, which the MSM trumpets as its sole superiority over blogs!

BTW, speaking of the Red Cross versus Gitmo, doesn't the Red Cross have better and more important things to worry about in New Orleans? Or are things back to normal there already?

Getting back to the subject of this thread......

To say that a search is warrantless is merely the stark beginning of legal analysis, not the end of it. That is why it is so surprising so many politicans are bloviating so ignorantly about it: most of them are attorneys who know better. ( I noticed that Hillary Clinton has been strangely reticent about this non-issue: Maybe she really is as good of a lawyer as she is reputed to be! Or maybe she just had a hand in the memo prepared for the Clinton Administration which convincingly demonstrated that such warrantless wiretaps are clearly and plainly legal and constitutional.)

I have a total yearly caseload of about 1000 criminal cases. (btw, most of the detainees at Gitmo now have roughly a 1:1 ratio with their attorneys. I actually spoke personally to an attorney who wrote a scathing denoument of the conditions there. Add that little nugget to the superior conditions at Gitmo). I would hazard to say that every single one of my cases features warrantless siezures or searches or usually both. I have worked for 2 years in this jurisdiction and have been assigned no more than 5 cases where a warrant was actually issued. I have won precisely 40 motions to suppress evidence since March 1, 2005. I have lost far more than I have won, but still any criminal attorney will tell you that ratio and sheer number is far above average. About 10 of those lost ones are on appeal, since I refuse to give up. So lets say that there are 50 cases that either have prevailed or still have more than a gossamer chance (at least I think so) of prevailing on appeal. That is precisely 5 percent of my caseload.

Out of that lucky 5 percent that actually got meaningful judicial review, each one required briefing and research on extremely complex and competing constitutional issues. The language used and the complexity of the issues easily rivals that of quantum physics. The in-court hearings took on average at least an hour, the research and writing another hour or so (I am an exceptionally fast writer). The Judge on average wrestles at least a week to make a decision and painstakingly often writes out a complex and long memo in support of their decision. The ones that go on appeal require an appellate brief that takes at least half a day to research and write. Oral argument takes at least a day to prepare and a harrowing and extremely stressful 1 hour to present to an often hostile audience of 5 very skeptical and brilliant judges. Your chances on appeal are slim, at best.

Let me get this straight: I am supposed to take seriously (and not laugh at) a NYT article that accuses President Bush of authorizing warrantless searches of enemy agents.

12/21/2005 02:02:00 PM  
Blogger Doug said...

"Conditions are awful at gitmo bay, but they are not secret. And as awful as they are, they are certainly lots better than any local jails.

http://en.wikipedia.org/wiki/Camp_X-Ray
Which is why it infuriates me that these non-issues involving the war on terror get any news coverage. How contrived! How shallow! How utterly and ruthlessly callous with respect to the suffering of ordinary incarcerated Americans by comparison!

How deliberately and mendaciously devoid of any context or analysis, which the MSM trumpets as its sole superiority over blogs!
"
---
Yeah, but the guys at Gitmo only want to blow up the country.
Some of those local jails house
"Substance Abusers."

12/21/2005 02:18:00 PM  
Blogger Doug said...

debs,
Thanks for that:
The first time I had heard of it was when our son described his work.
...now I won't forget it before he vists again.
(He's 21 and working with that stuff:
Another underacheiving homeschooler!)

12/21/2005 02:23:00 PM  
Blogger Subsunk said...

Can Someone explain what quick means in the context of a FISA warrant? Is it 1 hour, 12 hrs, 1 day, 1 week, what????

If it isn't one hour or less I want to know why. I know that within one hour of capturing KSM it is perfectly plausible that Sec Rumsfeld would have known of his capture. The military has immediate worldwide communication nets with access to the Senior Watch Officer in the National Military Command Center (NMCC). Within one hour of the WTC 9-11 initial attack, the President had been informed and the second attack report had even been made. So if someone like KSM is captured, and his cell phone is with him, within 2 hrs, I ought to have every phone number in his phone identified and under watch. Because within 2 hrs of KSMs capture, it is entirely plausible that the terrorists would have called everyone they knew was on his list to tell them to throw away their phones and not use them again. They may have even had to use the current phone number to get in touch with them.

When faced with imminent capture, frequently military procedure requires you to keep one secure circuit open until the last minute to report that you have destroyed all other classified material, then destroy that circuit.

If we do it, why wouldn't less educated and less regimented terrorists do so?

Anyone who says immediate wiretaps are not required to catch the bad guys, and we can wait even an hour or two to get FISA warrants (something I doubt would ever occur that fast) is an idiot.

It is not that the information is collected that is worrisome. It is what the government does with that information that needs to be regulated.

Subsunk

12/21/2005 06:41:00 PM  
Blogger Ash said...

subsunk, you can apply for a FISA warrant for up to 3 days after you've initiated the wiretap.

bd wrote:
"Let me get this straight: I am supposed to take seriously (and not laugh at) a NYT article that accuses President Bush of authorizing warrantless searches of enemy agents."

Isn't the net cast considerably wider then simply "enemy agents"?

12/22/2005 07:04:00 AM  
Blogger Bigger Diggler said...

"Isn't the net cast considerably wider then simply "enemy agents"?

I dunno, using wiretaps 26 times in four years is a net, but not a wide one.

I live in a rural, northwest state. Typically, when the Feds bust even a small to medium size drug organization, at least 30 or so defendants are arrested. Many of those cases are investigated over a period of a year or so, with hundreds of wiretaps, hundreds of days of surveillance usually featuring multitudes of videotapes, wired CIs. Usually 15 or so of the Defendants are "flipped" and turned into CIs, where they skedaddle back to the organization all wired for sound, without the speaker's knowledge or permission, and tape hours or incriminating evidence from the unsuspecting suspect.

Given the above, it does seem like "wide" is a rather extravagent adjective to describe a pitiful-by-comparison 26 wiretaps over four years against a massive, extremely well-funded very well organized multinational ultra-fanatic organization dedicated to the mass murder of americans, and preferably by suicidal means at that.

Most low-level cranksters are rather shabby in their committment by comparison, eagerly turning on their co-conspirators at the first sign of trouble to avoid prison, let alone death, let alone death by their own hand.

Yeah, "pitiful" seems more accurate than "wide."

12/22/2005 07:30:00 AM  
Blogger Papa Ray said...

If you had had a subscription to Wired News four years ago, you would have already known about Bush's spy plans.

Too bad the NYTs didn't do their homework, they would have seen that they had already been scooped...by 4 years.

Papa Ray
West Texas
USA

12/22/2005 10:09:00 AM  
Blogger Doug said...

Coulter:
In previous wars, the country has done far worse than monitor telephone calls placed to jihad headquarters.
FDR rounded up Japanese -- many of them loyal American citizens -- and threw them in internment camps.
Most appallingly, at the same time, he let New York Times editors wander free.

Note the following about the Japanese internment:

1) The Supreme Court upheld the president's authority to intern the Japanese during wartime;

2) That case, Korematsu v. United States, is still good law;

3) There are no Japanese internment camps today. (Although the no-limit blackjack section at Caesar's Palace on a Saturday night comes pretty close.)

It's one or the other: Either we take the politically correct, scattershot approach and violate everyone's civil liberties, or we focus on the group threatening us and -- in the worst-case scenario -- run the risk of briefly violating the civil liberties of 1,000 people in a country of 300 million.

http://realclearpolitics.com/Commentary/com-12_22_05_AC.html

12/23/2005 01:31:00 AM  

Post a Comment

Links to this post:

Create a Link

<< Home


Powered by Blogger