The Umpire Strikes Back (UPDATED)
I am tired of having this same NSA conversation—until we know all the facts (and because of what’s left of the classified nature of the program, we’re not likely ever to know all of them), we simply repeatedly rehearse argument for hypotheticals based on scenarios that don’t, to our knowledge, match any of the facts to which those involved in administering of overseeing the program has ever admitted.
In fact, the key hypotheticals being used against the program run counter to the known facts—though to be fair to critics, these hypotheticals do, on occasion, react to counter hypothetical assertions made by the adminstration, the DoJ, counsel for the NSA, the President’s war powers, AUMF statutory exemption to FISA, etc). Which is why, as I’ve been arguing (and remember, this is my sense of things: I don’t claim any special political or legal knowledge), the entire NSA dustup is a separation of powers fight—with those who dislike the President or hope to see executive powers better checked by a parliamentary-like legislature taking one position; and those who believe that the President needs, per the Constitution, to have certain war-time control of strategic military tools, including the gathering of signals intel, at his disposal where it is needed (and our enemy in this war operates at least partially from within the country) taking the other position. And I’ve further argued that the administration has taken advantage of the zealotry of anti-Bush and civil-liberties absolutists (as well as aggressive legal scholars who, like activist judges, tend to see themselves as secular philosopher kings) to coax them into making arguments that, though they may have no practical basis in fact, nevertheless conspire to make these critics look either weak or bureaucratically-constrained on national security issues. And they look this way for fear of running afoul of a statutory act that 1) may not in fact apply, under the conditions by which the program is actually being run (the standard of probable cause, however softened, still being prohibitive) 2) may not withstand constitutional scrutiny if asked to compete against Article II powers (this is the suggestion of the FISA appeals court, those like Griffin Bell who were around at FISA’s inception, and a thorough (rather than carefully excerpted) reading of Youngstown; 3) and are at the very least capable of being subject to compelling legal debate, making the charge that the President is a de facto lawbreaker a begging of the question.
In advocating for this second position—that the President was given inherent powers in war time to make certain military decision under the appropriate legal conditions (it will be helpful here to note yet again that Congress passed AUMF, that the program under question is under constant review, that the President went through legal advisor in several branches, and that the proper contingent of bi-partisan Congressional leaders were alerted and have been kept abreast of the program, about which we know very little of the particulars)—I have noted time and again to the best of my ability, and drawing on the reasoning of legal scholars who, like scholars in all fields requiring semiotic interpretation, are in constant and useful intellectual battle with those who disagree with their own readings, that—with no substantive evidence of any illegality (and hypotheticals based on asserted authority do not count, because those asserted hypotheticals are an argument for the power, not an admission of its deployment), there is every reason to believe that the President is acting within his authority, and that the worst-case hypotheticals militating against that conclusion have no standing other than as allegations based on a desire to fight a separation of powers battle that may not have anything to do with the particulars of the NSA “domestic spying” program.
I bring all this up—yet again—because it seems to me that in making these arguments, I have been consistent and honest—and up front about my reasoning. I’ve sourced my materials; I’ve given a fair hearing to my opponent; and—aside from pointing out that opponents of the program, based on what we know of it, are begging the question by assuming, for purposes of preemptory conviction, facts not in evidence—I have avoided attacking the more serious of them personally (though at times I am convinced that their unwillingness to agree even on the circumstances as I have outlined them shows them to be arguing in bad faith).
Despite all this, today I am greeted by this, from Glenn Greenwald:
We are well on our way to having exactly this sad dynamic ["the way in which this Administration so nakedly traffics in falsehoods, the susceptibility of Americans to be manipulated by rank cartoonish brainwashing, and worst of all, the profound failure of the media to fulfill its purpose of ensuring that our citizenry is informed and that the Government cannot falsely propagandize the nation"] repeat itself with the NSA scandal. Karl Rove is peddling transparent falsehoods about the scandal because he knows we have a neutered media that will simply pass them along, at most tepidly and neutrally noting that some Democrats disagree, but never, ever pointing out that the claims are factually false. If things continue as they are, public opinion polls will undoubtedly soon show that a majority believes that Democrats oppose eavesdropping on Al Qaeda and that the NSA scandal– as numerous dishonest Bush followers keep framing it—is based on a disagreement about whether we should have to “hang up” when Osama calls.
For the moment, leave aside the extraordinary arrogance of the assumption that but for those who can SEE TRUTH like Mr Greenwald and his fellow travelers, the bulk of Americans are all ignorant hicks, susceptible to “cartoonish brainwashing” and blindly loyal to a media that, evidently, is in the business of proferring pro-Bush propaganda (presumably when it is not busy leaking classified info, ginning up false scandals, or working hard to frame the public debate in such a way that the majority of Americans believe, say, an economy with below 5% unemployment just short of a disaster).
Instead, I want to focus on the bit where I am personally characterized as a “dishonest Bush follower”—the basis for the charge being, presumably….what, exactly? I have outlined the facts as fairly as I can; I have presented opposing viewpoints and attempted to rebut them; and—most importantly here—I actually believe that those who presume to stand in acontextual judgment of the legality of the President’s actions are wrong, and that in their advocacy, and given the accretion of known fact, they are assuming an almost metaphysical position from which to pass judgment.
That Greenwald wishes to call me “dishonest” is, I suppose, his prerogative; thankfully, I have left a trail of writings on the NSA subject that will allow honest readers to judge his assessment for themselves. But I will point out that, in simply choosing that way to frame our disagreements on this subject (which extends to a debate over the responsibilities of the press joined by TBogg, who from what I’ve been able to gather fancies himself a kind of cyber Lewis Black), Greenwald has surrendered any claim to the rhetorical high ground, not to mention any bit of his credibility that does not proceed from his knowledge of—and advocacy for—civil rights law (which, despite the moral weight the field has accrued, is not nearly so demonstrably righteous as it pretends to be).
Of course, Glenn is among those who believe the President “lied” about WMD—his assertion being, necessarily, that the President knew more than anyone did else that Iraq did not possess such weapons or weapons capabilities (alternately, he was able to effectively coerce, frighten, gag, or bribe his co-conspirators, and to prevent members in the Dem intel committee from going to look at the raw data for themselves), and that, with this information in hand, he hid it from the rest of us, allowed the world community to go on believing the nearly unanimous supporting intelligence, and decided simply to invade Iraq on the basis of a known falsehood (rather than on the basis of what may or may not have been faulty intelligence, the existence of which was always and necessarily compromised by the closed system through which it flowed).
And if that’s how you define a “lie,” I suppose I shouldn’t be surprised how short the walk is from such a recasting of communal signification to “dishonest” meaning something akin to “disagrees with me, Glenn Greenwald—who is demostrably smarter and more zealous in my love of liberty than are those who hold views opposing my own. Because they are sheep sucked in by a secret media conspiracy to parrot the government line”).
Anyway, as is my wont when I write this lengthy and more serious posts, I’ll leave it to you to decide who is being “dishonest” here.
But none of what Glenn writes changes the facts: George Bush or Karl Rove or Michelle Malkin or me are not the problem when it comes to how Americans decide the ultimate rhetorical outcome of questions of security and fideltity to truth; instead, it is critics of the NSA program who continue to make absolutist claims in advance of provable fact who are, in fact, responsible for the travails of Dems and progressives and a certain brand of libertarian on these issues, because they are so quick to assume the worst—and almost inveterately unwilling to allow facts to emerge without spin or obfuscation before pronouncing sentence.
Ideology has blinded them to the proper method for coming to conclusions and deciding issues on their empirical merit (me, I think it possible, for instance, that the President may have broken the law; I just don’t have proof, and even if I did, I might find reason to question the law itself. Does Glenn consider it possible the President has acted within his executive power, or withing the constraints of established statute?) Thankfully, most Americans aren’t as susceptible to rank cartoonish brainwashing as those who let their inflated sense of self cloud their more sober judgments.
(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here, and they contain comprehensive sourcing).
update: Cold Fury’s Mike Hendrix emails:
“For my part, Jeff, I’d say that any argument that depends on the notion of a “neutered media” that will “simply pass along” anything handed them by anyone in the Bush administration in a “tepid and neutral” (!) fashion is pretty damned specious, and reeks not only of desperation but of a complete and irrevocable disconnect from anything resembling reality.
“Or, in other words, it’s just another BDS sufferer baying at the damned moon [...]
We are either at war or we are not. If we are, the president of the United States, whom the Constitution makes the commander-in-chief of our military forces, is empowered to conduct the war Ã¢â‚¬â€ meaning he has unreviewable authority to employ all of the essential incidents of war fighting.
Not some of them. All of them. Including eavesdropping on potential enemy communications. That eavesdropping Ã¢â‚¬â€ whether you wish to refer to it by the loaded “spying” or go more high-tech with “electronic surveillance” or “signals intelligence” Ã¢â‚¬â€ is as much an incident of warfare as choosing which targets to bomb, which hills to capture, and which enemies to detain.
It was critical in the Civil War, when, by definition, it was done domestically Ã¢â‚¬â€ and without the slightest suggestion that federal courts should be involved. It was critical in World War II, when concerns about enemy infiltration were very real. And it is perhaps more critical today than during any war in our nation’s history.
Al Qaeda is an international terrorist network. We cannot defeat it by conquering territory. It has none. We cannot round up its citizens. Its allegiance is to an ideology that makes nationality irrelevant. To defeat it and defend ourselves, we can only acquire intelligence Ã¢â‚¬â€ intercept its communications and thwart its plans. Nothing else will do.
Al Qaeda seeks above all else to strike the United States Ã¢â‚¬â€ yet again Ã¢â‚¬â€ domestically. Nothing Ã¢â‚¬â€ nothing Ã¢â‚¬â€ could be worse for our nation and for the civil liberties of all Americans than the terrorists’ success in that regard. For those obvious reasons, no communications are more important to capture than those which cross our borders. Al Qaeda cannot accomplish its ne plus ultra, massive attacks against our domestic population centers, unless it communicates with people here. If someone from al Qaeda is using a phone to order a pizza, we want to know that Ã¢â‚¬â€ probable cause or not.
See also, “Intelligence Chief Defends Domestic Spying Program”, WaPo; also, here (thanks to Monica in Austin)