Sunday Morning’s Coming Down (and with have the intercepts to prove it)
Here. Today I’ll let Powerline do some of the heavy lifting on the NSA “domestic spy” story so that I can get out of the house for a bit. Here, they raise some interesting points about the rather directed coverage of the story from WaPo , Newsweek, and, naturally NYT. An excerpt:
The most deeply misleading aspect of the Times article [...] is its treatment of the federal court precedents on the issue of Presidential authority. The chief embarrassment faced by those who try to claim that the NSA’s international surveillance program is illegal, is the fact that at least five federal appellate courts have specifically held that the President has the inherent constitutional authority to order domestic warrantless surveillance for foreign intelligence purposes–let alone the international surveillance at issue in the NSA program. The Times reporters are well aware of these precedents, in part because we have repeatedly called them to their attention. This is their fraudulent attempt to deal with this unanimous body of judicial authority:
[John R. Schmidt, a Justice Department official in the Clinton administration] noted that the Foreign Intelligence Surveillance Court of Review, made up of three federal appeals court judges, addressed this issue in 2002 and said that it took for granted that the president had the inherent constitutional authority to conduct searches without warrants. “It’s utterly indefensible for people to say that there is no plausible legal justification when the only judicial statement on this is a flat statement that the president has this authority,” Mr. Schmidt said.
Some legal analysts say, however, that the appellate court was giving its assessment of past decisions and that all of the earlier precedents examined surveillance before the 1978 Foreign Intelligence Surveillance Act, which set up wiretap laws in response to Watergate-era abuses.
Note that phrase, “some legal analysts.” The Times quotes liberal critics of the administration repeatedly through the article, so why is it suddenly so coy on this critical point? Because there is no law professor in America–actually, no law student in America–who would allow his name to be associated with the Times’ indefensible characterization of the 2002 opinion of the FISA appellate court. The Times tries to suggest that that court’s statement that the President has the authority to conduct warrantless surveillance for foreign intelligence purposes lends only debatable support to the administration’s case because “some legal analysts say” that the court was only talking about precedents that pre-dated the passage of FISA in 1978; therefore, the court’s conclusion may not be operative post-FISA. That suggestion is completely untenable. The FISA appellate court specifically rejected the theory argued for by the Times:
We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the PresidentÃ¢â‚¬â„¢s constitutional power.
So, on the key legal issue, the Times misrepresented the FISA appellate court’s decision, and attributed its own misrepresentation to “some legal analysts” because no legal scholar, no matter how liberal, would be caught dead asserting the position argued for by the Times. The Times’ coverage of this issue continues to be deeply dishonest. And it is worth mentioning that Lichtblau and Liptak purport to sit in judgment on the legality of the administration’s conduct, without ever noting the fact that Lichtblau and the Times itself unquestionably violated federal law by publishing leaks about the NSA program. In the world of the antique media, illegality requires no explanation if it is directed against the Bush administration.
So there we have it: just another routine morning of Bush-bashing in the liberal press. There are too many Ahabs to count, all single-mindedly hunting the same whale, hurling their harpoons into the water and gnashing their teeth in frustration at the fact that, no matter how promising the target seems, they can’t quite strike the fatal blow they are all hoping for.
See also, this companion article, which includes the observation that “Every word the Times now publishes about the NSA surveillance story is deeply compromised by a conflict of interest that the Times has yet to acknoweledge.” Such is most certainly the case, but we’ve ceased framing sedition as anything more than the price of doing partisan business—and the Times, as the information arm of the left-liberal Democrat caucus—is most assuredly protected against such implied calumnies by virtue of their status as practically elected officials.
But be that as it may.
Not a whole lot new being argued here (though it is being argued better and with more legal heft behind it), but I’ll admit that it’s refreshing not to have to make these arguments myself on a sunny Sunday afternoon, when the world outside continue blissfully apace—this despite the billions of invisible threads of the evil Bushite web of totalitarianism at this very moment coccooning the earth’s atmosphere like so much illegally spun Imperialist silk.
(h/t Terry Hastings)