February 11, 2006

NSA program (de)liberation?

In a change of course, the Bush administration on Wednesday and Thursday offered new operational details to the House and Senate Intelligence Committees on the NSA foreign intelligence surveillance program, with press secretary Scott McClellan suggesting on Thursday that the White House would listen to ideas that lawmakers have about legislation, but that the President would resist any move that threatened to compromise the program.

According to CBS News:

The decision to give Congress more information came as Senate Judiciary Committee Chairman Arlen Specter, R-Pa., announced he was drafting legislation that would require the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the administration’s monitoring of terror-related international communications when one party to the call is in the United States.

It also came as Rep. Heather Wilson, R-N.M., chairwoman of a House intelligence subcommittee that oversees the NSA, broke with the Bush administration and called for a full review of the NSA’s program, along with legislative action to update the 1978 Foreign Intelligence Surveillance Act.

CBS, not surprisingly, points to the concerns of Republican lawmakers, which they do to suggest that opposition to the program is not coming only from Democrats—(Brad Blog has video of another, Senator Lindsey Graham of SC, who is commenting prior to the Senate briefing)—a truism that misses the point that the “concern” we’re seeing is coming from the legislative branch itself, whose membership, regardless of party, is largely interested in its own power.  And in the case of the highly classified NSA surveillance program, a host of legislators initially kept out of the intel loop are finally getting their opportunities to argue for the legitimacy of their own power to constrain the executive. 

For all the posturing of lawmakers over legality, however, this story continues to be one of a struggle for power between the various branches of government, with the White House still maintaining its inherent authority (while maintaining, similarly, that is has met the conditions of FISA, though legal analysts are split on the DoJ’s interpretation of the statutes), and Congress calling for an “expansion” and revisiting of FISA to accomodate aspects of the program. 

In fact, Specter’s call for “legislation that would require the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the administration’s monitoring of terror-related international communications when one party to the call is in the United States” is yet more legislative branch posturing (or, if you prefer, bullying), when read in light of Thursday’s WaPo story, which I’ve referenced previously on this point.  Consider:

[...] judges [Kollar-Kotelly and Lamberth] expressed concern¹ to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

This admission that the FISA judges have no jurisdiction² over what is an Article II question is consistent with the earlier FISA Review Court finding, which, while considering whether The Patriot Act modified US v Truong’s “primary purpose” test by allowing that surveillance under FISA was proper if intel gathering was one “significant” purpose of the intercept, noted: noting:

The Truong court, 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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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.

Critics of the program continue to pretend that they are worried that the plenary power of the President is a potential (new?) danger requiring new “checks”.  But legislators have at their disposal checks already granted them under the constitution—articles of impeachment (which speaks to their concern with illegality) or budgetary cutoff to the program—neither of which have they availed themselves of, knowing, as they must, that both tactics are political poison.  And so they are left with trying to convince the American people that the President is overstepping his authority, and that they—riding the white horse of more expansive law—simply must be allowed to lasso him in by creating for itself an additional “check”—Congressional approval over individual instances of Article II powers beyond the general approval that comes with AUMF. 

As I’ve argued before, though, the White House—while content to listen to lawmakers—is unlikely to blink on any condition of an expanded FISA statute that requires the executive to receive de facto permission from the legislature to use any individual component of the military power the CiC was granted under the AUMF.  If anything, I suspect it will be Congress, ultimately, who finesses FISA in such a way that it adheres to the President’s use of intel gathering.  That is, any new look to FISA will simply put it in line with the President’s current usage, with Congress then claiming for itself victory.  The upshot, though, will be that FISA will simply “make legal” what the President, through the DoJ and the NSA counsel, has and will continue to maintain is already legal under his Article II inherent authority.  That way, legislators can go back to pretending that FISA has some sort of controlling statutory authority, even though (as the judges and courts referenced earlier acknowledged) it would be Constitutionally impossible to rule against the executive authority on foreign intel gathering.

Fortunately, some newly-briefed lawmakers, though many continue to make noise about the necessity for FISA to match the surveillance programs particulars (if for no other reason than to give it the patina of “legality” their refusal to respect the Executive’s Article II powers prevent them from granting it currently), are beginning to acknowledge, in strong terms, their support for the program—and are noting that the way the story has been presented by many media outlets (as a “domestic spying program”) is simply wrong and misleading.  Still other lawmakers (Jane Harman, one of the original 8 briefed) are taking it one step further—arguing that the program, as they have been briefed on it, adheres to current FISA law.

From Newsbusters:

In an interview conducted in her office, Democratic Congresswoman Jane Harman, the ranking Democrat on the House Permanent Select Committee on Intelligence, told FNC’s Jim Angle that the “very valuable” terrorist surveillance program “fits within” the FISA law. In the session excerpted on Friday’s Special Report with Brit Hume, she deplored how leaks are hurting intelligence efforts and scolded the news media for “not extremely accurate” characterizations of the program. Zeroing in on the New York Times, which first revealed the program, Harman asserted their story was “inaccurate” because they reported it included a “domestic-to-domestic” surveillance effort. She also charged that “these leaks are compromising some core capability of the United States,” regretting how “it’s tragic that this whole thing is being aired in the newspapers.” As to who is the blame, however, she bore in on the Bush administration for how “this can’t be handled in normal channels because this administration refuses to share the information with Congress.” (Transcript follows.)

The relevant portion of the excerpt of the interview with Harman, who represents the coastal West side of the City of Los Angeles south from Marina del Ray to San Pedro, through the independent cities in between of El Segundo and Manhattan Beach, as aired on the February 10 Special Report with Brit Hume:

Asked by Angle whether the law or the program needs to be changed, Harman replied: “We need to assess whether or not this program fits within FISA. I say it does. I have seen no reason why it doesn’t. If it fits within FISA, the administration, in my view, has to follow the law. If it doesn’t fit within FISA for some reason that I have not yet understood, then we need to consider whether we change the program or change the law. But bottom line here is this very valuable program—and I insist, you know, I won’t back off that for a minute, at least the one on which I was briefed, there may be something else out there—but the valuable program on which I was briefed must comply with the law and can.”

Jim Angles: “To clarify here, you’re saying that what you know about the program actually is legal under existing law?”

Harman: “Would be legal under existing law. The administration has admitted it’s not getting FISA warrants on U.S. persons who are part of the chain of-”

Angle: “Who might be called by foreign terrorists.”

Harman: “Right. Of people involved in what they think is plots spearheaded by al-Qaeda to attack Americans. And let me be clear about this: If U.S. persons are part of those plots, I surely want to know what they’re up to. I absolutely believe, however, there would be probable cause, through the FISA court and through the, you know, under FISA, to get court warrants. And the law applies and the law should be complied with and I have not heard any compelling arguments why we shouldn’t use the law. ”

Angle: “The media reporting on this has talked about the program, there have been a lot of public discussion, more perhaps than about any other highly classified program in my memory.”

Harman: “Right.”

Angle: “How accurate is the public understanding? You actually know what the program is. How accurate is the public understanding?”

Harman: “Not extremely accurate. The most early—you know now it can be said, now that Attorney General Gonzalez has said this is not a domestic-to-domestic program. The early reports by the New York Times, to which this program, the facts of this program or the existence was leaked, were inaccurate because that’s what they claimed it was. And, that is, according to our Attorney General, not what it was. So there’s one.”

Angle: “And you’re comfortable with that?”

Harman: “I’m comfortable with that. As I’ve said, I support the foreign collection program on which I have been briefed and I don’t want to amplify that comment, but I think you get the point of my comment. So I’m comfortable with that. But there are ongoing leaks and I felt then and I feel now that these leaks are compromising some core capability of the United States. It’s tragic that this whole thing is being aired in the newspapers. Why is it happening? I think it relates in part to this notion that we cannot do congressional oversight. This can’t be handled in normal channels because this administration refuses to share the information with Congress.”

[My emphasis]

What is important to take away from Harman’s interview, the whole FISA vs. Article II powers question aside—which is a separation of powers issue that is unlikely to be settled “legally,” as I’ve consistently maintained—is that the program, according to Harman, seems to be both worthwhile and effective, and that the leaking of information about the program is damaging to national security, despite the continued reluctance of some civil libertarian absolutists and progressive pundits to admit as much.

Instead, they wish to maintain that the leaker—and the NYT—were whistleblowers.  But such a position relies on maintaining several fictions, first, that warrantless wiretapping was happening wholly domestically (untrue, according to the NSA, the DoJ, the administration, and now Rep. Harman, among others), second, that FISA holds statutory authority over the President’s use of NSA surveillance, and third, that Congress is in charge of giving the President particular, enumerated permissions to use military measures inside the US.

****

¹ Law professors Erwin Chemerinsky, John Eastman, and Jonathan Adler, appearing on Hugh Hewitt’s radio show, argue that Judges Kollar-Kotelly and Lamberth exceeded their authority in acting as they did (h/t Karl); as Karl notes in his comment, “What would have been interesting to know, but the WaPo does not report, is whether the judges expressed their concerns before or after the FIS Court of Review rejected the FISA court’s restrictive approace to intell collection in In re Sealed Case.

² In the comments, actus writes, “Of course the judiciary has jurisdiction to decide whether something is a proper exercise of Article II.  I think what the FISA judge is saying is that this is not the role of a FISA court. Its something for a regular court to do.  But if judges have no jurisdiction, there goes all that we can rely on any FISA review court dicta.” My background not being in legal speak, it is possible I used “jurisdiction” inelegantly here.  But my point remains the same:  both the FISA court judges cited in the WaPo and the language of the FISA Review Court make it clear that it is not the place of FISA judges to rule on inherent authority under Article II; beyond that, though, actus is correct, as I noted in a previous comment:  even were the FISA Review Court to find the President’s actions illegal, their finding would have no real force until it was determined that FISA itself was constitutional.  Which would require a SCOTUS ruling.  I could be wrong about this, but forgive me—I’m learning as I go.

Posted by Jeff G. @ 5:07pm
65 comments | Trackback

Comments (65)

  1. But, Dude, where’s the weed at?

    Popozao, where is the bud, yo? Where, o where is the bud?

  2. This admission that the judges have no jurisdiction over what is an Article II question is consistent with the earlier FISA Review Court finding, which, while considering whether

    Of course the judiciary has jurisdiction to decide whether something is a proper exercise of Article II.  I think what the FISA judge is saying is that this is not the role of a FISA court. Its something for a regular court to do.  But if judges have no jurisdiction, there goes all that we can rely on any FISA review court dicta.

  3. But if judges have no jurisdiction, there goes all that we can rely on any FISA review court dicta.

    That was fine gobbledy-gook, actus.

    Top-flight, really.

  4. I think I addressed that the other day in a comment to you, didn’t I, actus? 

    I’ve added your concern in a footnote to the post.  My understanding is this:  even were the FISA Review Court to rule the program was acting illegally, the President could continue to authorization under Article II powers under the premise that FISA is itself acting as an unconstitutional restraint on his CiC powers.  Which would mean that until SCOTUS decided on the constitutionality of FISA, the ruling of the review court would hold no actual force.

    The reason why I’ve been citing the Review Court ruling so often is because they seem to recognize this.

  5. We’re all learning as we go and I, for one, am happy that you are not only a fast learner but can write about what you learned so I can learn from you.

  6. Which would mean that until SCOTUS decided on the constitutionality of FISA, the ruling of the review court would hold no actual force.

    That’s what I think the judge is saying. FISA court judges dont’ rule on the constitutionality of FISA.

  7. - When you peel away all of the phoney rhetoric from the Dems on this and get down to brass tacks it turns out, even as attested too by an on the scene Dem – Harman, that the left is arguing about the wrong things over a program that isn’t doing what they think. In other words looking for the “get Bush” pea under the shell, not realizing the pea and the shell might as well be on another planet. I worked on several of the programs that are behind all of this, and I too can state the Dems are shingled out over the fog in this witch hunt. Even worse is the incessant use of the term “Domestic wiretapping” by the NYTrash and the rest of the left-wing media, intentionally misrepresenting what the program is and does.

    The Dems couldn’t beat Bush at the ballot box, so they seek to reach with non-existant Congressional adventurism and “control” him. Instead they continue to leave the public with an ever growing impression that the Democratic party is weak on terror, and willing to even try to hobble the President in the WOT, desperate to regain power. Like PlameGate and all the other gates, these are gifts in terms of PR that just keep on giving. Hopefully the left won’t catch on to this “program of folly” of theirs any time soon….

    - I’m still waiting for a single moonbat to tell me why the “whistle blowers” were just absolutely forced to go to that 4th branch of government, the NYT, with the info instead of ANY Democratic Congressman on the hill, following the policy agreements they all signed as employees….

    - I’d also like to see just one instance over our modern history when Congress suddenly had the power to manage the Presidents processes, tactics, and strategies in the prosecution of a war. Just one.

  8. - I’m still waiting for a single moonbat to tell me why the “whistle blowers” were just absolutely forced to go to that 4th branch of government, the NYT, with the info instead of ANY Democratic Congressman on the hill, following the policy agreements they all signed as employees….

    Why does it matter who they go to?

  9. You’re kidding, right, actus? About why they should have gone to a (preferably high-ranking) Democrat in Congress (preferably with a track record of dealing with national security in a responsible way) rather than the newspapers, if their concern was actually that the program was against the law?

    [Sigh.] Just in case you weren’t, it’s because:

    1. Anyone knowing about this program is bound by confidentiality, or was supposed to be, and could maintain that confidentiality only by not blabbing to people whose job it is to report things to the public, and

    2. A Congressional Democrat has other options for discussing a classified program with those involved than a simple bureaucrat, and

    3. Whistleblower statutes lay out how you go about blowing the whistle on classified information, and going to the papers ain’t it, and

    4. If that weren’t enough for them, if their tender consciences weren’t assuaged by the prospect of sharing their secret with someone who could actually do something meaningful about it if in fact something needed to be done, they at least would not be endangering a program about which they almost certainly don’t have full knowledge, which may be invaluable and irreplaceable once blown.

  10. You’re kidding, right, actus? About why they should have gone to a (preferably high-ranking) Democrat in Congress (preferably with a track record of dealing with national security in a responsible way) rather than the newspapers, if their concern was actually that the program was against the law?

    They’re so reachable you know?

    But what good would it do to tell one lone democrat about it?

  11. They’re so reachable you know?

    Yeah. No member of congress would ever return a phone call from an NSA agent calling with a possible illegal activity on the part of a political opponent.  A guy writing a book is so much easier to find, so much more approachable.

    <blockquoteBut what good would it do to tell one lone democrat about it? </blockquote>

    What good are you trying to do?  If you are trying to find out if a program is legal or to get the intelligence committee to investigate it, telling a lone democrat would do a lot of good.

    If you are trying to smear a President and get only your side of the story made public, not so much.

  12. If it wasn’t for the fact that, you know, people would die I’d say LET Congress have its oversight and control.  Then when the inevitable disaster strikes, ask them why they didn’t do more to stop it.

  13. Yeah. No member of congress would ever return a phone call from an NSA agent calling with a possible illegal activity on the part of a political opponent.

    Oh. You can just leave a message with a page that says that? I didn’t know.

    What good are you trying to do?  If you are trying to find out if a program is legal or to get the intelligence committee to investigate it, telling a lone democrat would do a lot of good.

    But lone democrat congressmen were told. And they did not know if it was legal or not. We’ve had law professors all weighing in on this.

    Further, I keep getting told that there’s nothing congress can do about this—because its all about the Article II. So can a Congressman stop this or not?

  14. - So then actus I’m going to go out on a limb here and assume you don’t even trust your own Congressmen, which in retrospect, is probably a rhetorical question for a idiotarian.

    - If you can’t see the difference in the way this was handled by the leakers, you have a pretty good idea why the majority of Americans will continue to demure from giving you the keys to the executive bathroom. Your refusal to answer the questions honestly is your ideological epitaph…

    Further, I keep getting told that there’s nothing congress can do about this—because its all about the Article II. So can a Congressman stop this or not?

    - So then it really is about “stopping it”, ending the war, cutting and running, there were no WMD’s, the war is illegal yada yada yada….

    - I think the left would do themselves and everyone else a real service if they’d just say whats on their mind, and what they’re really up to in the continueous stream of AnyGate campaigns, and save us all a lot of posting….

    TW: Until the left stops all the Marxist “big lie” bullshit, they’ll never be anything on the nations political stage but a gaggle of loud mouthed, obnoxious, out of step cultists……

  15. actus is acting out, but in a sense, he’s correct. Instead of going through all these middle-men such as the Inspectors General, Congress or even the Media, these leakers should call bin Laden directly and warn him of the NSA program. Then we could intercept their calls and arrest them without delay.

  16. Excellent, BBH, you nailed it.  It is all about stopping it.

    As for the congressmen are too elusive to blow the whistle to argument that actus is making- I think even actus realizes the ridiculousness of it.  If I were a betting woman, I’d bet it’s easier to get a meeting with a Congressman than with a bigtime NYT reporter.

  17. Actus, actually there’s a whole procedure and separate bureaucracy in the Inspector general’s office, established under the Intelligence Community Whistleblower Protection Act of 1998, which allows this “…in order to bring to the attention of Congress complaints or information about intelligence activities that involve classified information.”

  18. So then actus I’m going to go out on a limb here and assume you don’t even trust your own Congressmen, which in retrospect, is probably a rhetorical question for a idiotarian.

    I live in DC. Ask me about what my congressman and senators can do.

    So then it really is about “stopping it”, ending the war, cutting and running, there were no WMD’s, the war is illegal yada yada yada….

    Well, for the guy who thinks something illegal is going on. Sure. For the guy that wants FISA to be followed, its not good to have the same people tell me that he should go to congress as tell me that congress couldn’t have passed FISA.

    TW: Until the left stops all the Marxist “big lie” bullshit, they’ll never be anything on the nations political stage but a gaggle of loud mouthed, obnoxious, out of step cultists……

    It’s lot of little lies. Weapons of misdirection is the latest buzzword.

    If I were a betting woman, I’d bet it’s easier to get a meeting with a Congressman than with a bigtime NYT reporter.

    The idea that I get is these articles were written by going to several sources, some of which probably already have relationships with reporters.  Anonymous relationships, which someone might not want to entrust to a senate page.

  19. - Hope the AG has a few subpeona’s readied for the book writer and his lackies, along with the leakers…..

    - This should be a good year. I can’t wait till Libby has his trial by jury and Wilson is subpeoned to testify under oath. That lying blow hard has skated long enough. Wouldn’t doubt the coward would roll over on the reporters/DNC people who put him up to it if hes backed into the weasel corner. I don’t think thats what the Leftards had in mind when they started Plamegate.

  20. Anonymous relationships, which someone might not want to entrust to a senate page.

    If you are stupid enough to get a high school student involved, you really don’t belong in Intelligence.

  21. Who exactly are these Senators and Representatives that are so difficult to contact that they might as well be on the dark side of one of Jupiter’s moons?  I don’t know of any – in fact, Senators Lott and Cochran, not to mention Representatives Thompson, Wicker, Pickering and Taylor, are almost ridiculously easy for any of their constituents in Mississippi to reach.  Is it really that difficult for someone on the spot in DC to do so?

  22. This should be a good year. I can’t wait till Libby has his trial by jury and Wilson is subpeoned to testify under oath.

    What do you imagine Wilson testifying to?

  23. - Wilson bragged up his wife’s CIA connections on his website for over a year before even the Novak report, called her his “agent wife” at cocktail parties on numerous occassions, and just generally acted like a big shot, when everyone knew what he was. Then comes along almost 2 years later and makes a claim that the Whitehouse “outed” her. Its a joke. His mole report, shaded with half truths and lies and omitting things that would support Husseins efforts to aquire yellow cake, didn’t go anywhere so he got pissed off and came up with this scam. Its going to be interesting, because once you see what everyone knew and when they knew it, the whole thing will be shown as just another “get Bauh” scheme on the part of the Donkeys.

  24. But what does any of that have to do with the crimes that libby is charged with?

  25. - Thats what we’ll find out now isn’t it. All of it will come out. Or maybe not because as soon as we get close to trial time I expect a lot of wrangling to begin where Wilsons lawyers try to find a way to keep him off the stand. *chuckle*

  26. Thats what we’ll find out now isn’t it.

    What do you mean? Of what relevance is that testimony to the charges?

  27. And there’s actus, hands behind back, looking up with huge, imploring, faux-innocent eyes. “But I don’t unnerstand.”

    Funny. In, y’know, a cartoon.

    Regards,

    Ric

  28. And there’s actus, hands behind back, looking up with huge, imploring, faux-innocent eyes. “But I don’t unnerstand.”

    Seriously. What do any of Wilson’s misdeeds have to do with Libby’s obstruction and perjury charges? In wingnuttia, I see the connection. But not before the law.

  29. - Well if Libby was the real target of this nonsense scam, it probably would be meaningful. Since thats not really the case, and the Donkeys are still hoping somehow to tie Rove into this pot of BS goo, libby is obliging them. Except for the Wilson thing, which Libby blind sided the Liberal scamers with. I’m a bit suspicious about Fitzy’s part in this too. You know charging Libby, whom immediately calls for a jury trial, is a pretty slick way to get Wilson into court, where no other way existed. The reason I’m suspicious is that theres little chance of making perjury stick if the so-called purjury is immaterial to the original intent of the Grand Jury investigation. Even if Libby gets convicted on some lessor charge, he probably walks because its a seperation powers thing. Its not clear if he can be made to discuss details of cabinet actions or events. Either way, if thats whats behind the charges, he gets a pardon from Bush, and in the mean time we get to see Wilson called out for some of his lies. I’m going to enjoy it a lot.

  30. I live in DC. Ask me about what my congressman and senators can do.

    Feel free to tell one of mine, they live there too.

  31. Actus, despite your view that anything that upsets your fantasies is “wingnuttia”; in fact, depending on the exact statute under which Libby is charged, Fitzgerald may be obligated to prove the materiality of his mistatements.  There are many scenarios where Wilson and Plame could be required to testify as to whom they revealed her status as a part of Libby’s defense.  This has been well discussed around the blogs.

  32. - In the mean time, with the trial still a ways off actus, you and the other moonies can ratchet up to four layers of tinfoil, although I don’t think tinfoil is going to be enough CYA for the Donkeys if this comes out the way I think it might. I don’t think theres any way left even for Wilson to stop the “honeymoon express” at this point.  Bon appitite’…

  33. You know charging Libby, whom immediately calls for a jury trial, is a pretty slick way to get Wilson into court, where no other way existed.

    This is the part i’m not getting. How do you get wilson into court? What’s the relevance of anything he has done or said to the charges against libby?

    Actus, despite your view that anything that upsets your fantasies is “wingnuttia”; in fact, depending on the exact statute under which Libby is charged, Fitzgerald may be obligated to prove the materiality of his mistatements.

    What does who they talked to have to do with the materiality?

    If I lie to an investigator during an investigation of a crime, it doesn’t get me off if he laters finds out there was no crime. The materiality is not about there being an underlying crime. Its about how important this was to the investigation.

  34. How do you get wilson into court?

    Simple. you call him as a material witness in your defense. Even if he has to be declared a “hostile witness” he can’t refuse to testify under oath. When you’re tried by jury you get to do things like that. See how it works. Otherwise people who wish you ill could sit back and take unperilous pot shots at their enemies endlessly, with no repercussions. Wilson thought he was beyond reach, and he was until Fitzy charged Libby with what are very very weak charges, and Libby turned around and demanded a trial by jury. I’m pretty sure Wilson and his lawyers were doing a very loud *aww shit* at that point. Wilson bluffed several times, threatening all sorts of people that were uncovering his lies with suits. So far hes been rather lax in following up. something like Kerry’s bullshit threats against the Swifties. Again, everyone knows these assholes never want to have to testify…..

  35. If I lie to an investigator during an investigation of a crime, it doesn’t get me off if he laters finds out there was no crime. The materiality is not about there being an underlying crime. Its about how important this was to the investigation.

    So near, and yet so far…

    If you’re investigating me for mopery, dopery, and scourging the spaceways, and I lie to you about what I had for breakfast, I’m guilty of perjury and you can charge me for it. You could, conceivably, convict me for it, provided you could convince the jury that it was important that you learn the truth about my choice of pancakes or scones.

    The only way you’re going to even approach enough importance to attach to my lie is to bring up the original charges, even if you’ve decided that they’re factitious—after all, the reason it was important whether I chose Mrs. Butterworth’s or genuine maple must have something to do with what you were investigating. So you’re going to have to truck in as many of the original testifiers and witnesses as you can, to convince the jury that my lie diverted the investigation and therefore obstructed justice. The fact that it may be, umm, embarrassing for the original witnesses has nothing to do with the actual case before the Court. That may not be a comfort for the witnesses…

    Regards,

    Ric

  36. I have addressed this prejudice you seem to have about infinitives As I’ve argued before, though, the White House—while content to listen to lawmakers—is unlikely not blink on any condition of an expanded FISA statute that requires the executive to receive de facto permission from the legislature to use any individual component of the military , both bare and otherwise in a free form poem, but it didn’t seem to register.  I also noted that you get a little hickey if someone points out your mistakes in a comment thread.  I’ll email you the next time.

    Your personal umbrage concerning infinitives and comma splices is noted . .. .. . . with me at least.

  37. If you wish to be my proofreading intern, just ask.  I’m a busy man.  I change sentences on the fly and sometimes neglect to make sure the rest of the sentence is consistent with the change.

    But hey, man. The fact that I don’t care? That’s what makes me edgy.

  38. It’s all about the infinites, man.

  39. *sorry* make that, busy man

  40. sometimes?

  41. Simple. you call him as a material witness in your defense.

    Evidence has to be relevant and probitive. What is he going to testify to that is relevant to the charges?

    So you’re going to have to truck in as many of the original testifiers and witnesses as you can, to convince the jury that my lie diverted the investigation and therefore obstructed justice.

    So what are Libbies lies, how did they divert the investigation, and how would Wilson be relevant to that?

    I do agree with the wingnuttia argument: libby lied, leaks, etc… are answered with Wilson’s bragging about his wife, his trip to Niger, etc… But I don’t see a judge buying that crap.

  42. “…even were the FISA Review Court to find the President’s actions illegal, their finding would have no real force until it was determined that FISA itself was constitutional.  Which would require a SCOTUS ruling.”

    “I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial [branch]; but I beg to know upon what principle it can he contended that any one [branch] draws from the Constitution greater powers than another, in marking out the limits of the powers of the several [branches]. The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the [branches] to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent [branches] has more right than another to declare their sentiments on that point.”–James Madison

    Neither the Congress nor the Court may impinge upon the Executive’s right and duty as Commander in Chief to intercept enemy communications. Period. They may ratify it–as they have indeed done repeatedly and decisively–but they may not impinge upon it. Nor as Madison notes, would SCOTUS have the “final word” on the matter. That would ultimately devolve upon those who did ordain and ratify the Constitution; We, the People.

  43. actus – Your question regarding whistleblowers – “Why does it matter who they go to?” – reflects a total ignorance of the law or a willingness to apply it only when it suits your purposes, either of which disqualifies you from participating in serious legal discussions.

  44. actus – Your question regarding whistleblowers – “Why does it matter who they go to?” – reflects a total ignorance of the law or a willingness to apply it only when it suits your purposes, either of which disqualifies you from participating in serious legal discussions.

    Its not so much the law that i’m worried about. Its more the concern of the whistleblower. What is a congressman—which maybe has been briefed on the program—going to do? We’ve been told that there’s nothing congress can do. And even if it could, is a congressman to try to pass secret legislation to fix a secret program he believes is wrong?

    A congressman could use the speech and debate clause to disclose the program in a constitutional way free of legal consequences. That’s something for a whistleblower to consider.

  45. Noel –

    I agree; but principle doesn’t get the job that’s getting done done.  FISA’s constitutionality could affect the necessary move from gathering intel to then using it to obtain a warrant on a US Citizen / person. This is where the 2 FISA judges discussed above raised concerns (and in the latter instance, she acted quite unethically – the very embodiment of an activist judge).

    But if Congress pushes SCOTUS into ruling on these aspects of FISA which make it more difficult to monitor, find, search, and arrest enemy combattants living inside the homeland, there will be a severe price to pay from voters.  Which is why, as I note in the post, the more likely scenario is that Congress will craft FISA in line with how the program already works—allowing it all (after haggling over one or two details for show)—then claiming victory.  But the President and the DoJ won’t budge on the Article II argument.

    Hugh Hewitt and others have worried that the failure of the DoJ to push past those first FISA blockages is an indication they are not confident in the Constitutional argument; I happen to think that they didn’t want to have the program advertised any more than it needed to be.

    After the leak, however, there was no reason to hold back. And by that time, the administration had the 2004 Hamdi ruling that all but solidified the Constitutional case.  Which is why the President has not appeared to budge, and why Congress won’t call for impeachment or cut the budget—but is instead engaging in more attention-grabbing grandstanding:  hearings, thunderous denunciations that hint at potential lawbreaking, screams about unitary power and checks and balances, etc.

  46. - In the mean time I emailed the Whitehouse and told Bush to stand firm on his Constitutional obligations and tell the jackasses to go fuck themselves….

  47. - From the desk of the “Friendly advice man” -

    - Try to stay away from hunting trips with the VP….

  48. So long as materiality is an element, testimony regarding that element will be relevant.

    Its amusing actus that you are willing to discuss the materiality issue, albeit you are misrepresenting its significance, but still claim that if someone more conservative than you discusses it, its wingnuttia.

    But then, namecalling is just so you.

  49. So long as materiality is an element, testimony regarding that element will be relevant.

    Right. Now tell me what he lied about, and how Wilson’s testimony goes to the materiality of that. How does wilson make what libby did immaterial to the investigation.

    Its amusing actus that you are willing to discuss the materiality issue, albeit you are misrepresenting its significance, but still claim that if someone more conservative than you discusses it, its wingnuttia.

    What I’m claiming is that its the political gotcha wingnuttia argument to say taht Wilson’s behavior is relevant to this scandal.  But before the law? the connection is not so clear.

  50. Among other things, Libby is accused of lying that Tim Russert told him that Wilson’s wife was CIA.  It could be a lie, it could be an error.  Would it not be pertinent to know that enough people knew about Plame that Libby was told by another reporter, or another person besides Russert? 

    Also, I would imagine Fitzgerald’s own narrative will be quite limited if he wishes to keep Wilson from being a witness.  He couldn’t repeat his press conference performance, for example.

    Now, about the whistleblower. 

    Its not so much the law that i’m worried about. Its more the concern of the whistleblower. What is a congressman—which maybe has been briefed on the program—going to do? We’ve been told that there’s nothing congress can do. And even if it could, is a congressman to try to pass secret legislation to fix a secret program he believes is wrong?

    There is a difference between a whistleblower and a disgruntled employee.  Someone that wishes to get something stopped, based only upon his own disagreement with a program, does not a whistleblower make.  A whistleblower goes through proper channels first to allow those with legal recourse to consider if there is something to be done. 

    One personally believing something is wrong doesn’t make it wrong, and personally believing something should be stopped doesn’t mean it should be stopped.  Acting upon your own personal convictions may be noble or it may be foolish, and it doesn’t always come with legal protection.

  51. It could be a lie, it could be an error.  Would it not be pertinent to know that enough people knew about Plame that Libby was told by another reporter, or another person besides Russert?

    It could be. But that’s not materiality.

    So the idea is that so many people knew, and so many people told libby that he just messed up?  But then just list all those people. Wilson doens’t know who talks to Libby.

    A whistleblower goes through proper channels first to allow those with legal recourse to consider if there is something to be done.

    When the AG is signing off on stuff, it looks like the “proper channels” have already considered it.

  52. So the idea is that so many people knew, and so many people told libby that he just messed up?  But then just list all those people. Wilson doens’t know who talks to Libby.

    Wilson knows who he talked to and why.  Do you really think a judge would prevent the defense from calling him?  Why?  And wouldn’t making him off-limits severely limit Fitzgerald’s ability to invoke his name and his story?  We’re trying this guy for lying during an investigation, but we really can’t talk about what was investigated because we’re unwilling to let those involved testify?  We can’t tell you what Libby’s motivation might have been to lie, but trust us, it was bad.  That doesn’t work.

    When the AG is signing off on stuff, it looks like the “proper channels” have already considered it.

    But the proper channels for a whistleblower, as has already been pointed out to you, is to go to Congress, not the AG.  And yes, I would have to say if you go to Congress and you go to the AG and they don’t give you the remedy you are seeking then you go to the press at your own risk.  You aren’t a whistleblower anymore, you are someone with a personal agenda.

  53. Wilson knows who he talked to and why.

    Right. But we want to know who Libby might have heard it from. Not Wilson.  As to Libby’s motive, I have no idea how that would be established. You don’t really need Wilson there for that.

    But the proper channels for a whistleblower, as has already been pointed out to you, is to go to Congress, not the AG.

    Oh. That’s a ‘proper channel’?

  54. You don’t really need Wilson there for that

    And perhaps the prosecution agrees.  But if the defense wants him there as a witness, do you really think the judge would prevent the defense from calling Wilson?  I don’t.

    Oh. That’s a ‘proper channel’?

    What game are you playing?

  55. But if the defense wants him there as a witness, do you really think the judge would prevent the defense from calling Wilson?  I don’t.

    I think they’ll have to show relevance and probitiveness. And what he has to say is not going to be relevant.

    What game are you playing?

    Is there really a statute that lays out Congress as a ‘proper channel’ or are you just thinking of reasons why it would be proper? Reasons like separation of powers / oversight, the maintenance of secrecy, etc…

  56. I think they’ll have to show relevance and probitiveness. And what he has to say is not going to be relevant.

    I don’t buy it.  It seems to me the burden would be on the court or the prosecutor to prove that a witness should not be made available to the defense.

    Is there really a statute that lays out Congress as a ‘proper channel’ or are you just thinking of reasons why it would be proper?

    Many on this thread have referred to the actual statute, and Charlie(co) even linked to it and quoted from it for you.  Amazingly, such things are not simply left up to the intelligence agent to figure out if the mood to blab should strike.

  57. Jeff,

    I agree with your political analysis, but I think it’s helpful to recur to first principles too. I tend to give more weight to the views of “The Father of the Constitution” than I assign to the mealy mouthings of judges like Ruth Buzzy Ginsberg, John Paul Ringo or this Colleen Collared-Greens wench.

    If it is Constitutional for the Executive to listen to enemy communications–and it irrefutably is–then how could a domestic warrant flowing from that Constitutional act be unconstitutional? Only someone who stays up nights worrying about whether terrorists have the right to gay marriage and partial-birth abortions could come up with that.

    btw, here are two Opinion Journal pieces arguing for the abolishment of FISA and excoriating Judge Collie-Collar for resurecting yet another Gorelick-style Wall and for arrogating to herself unnaccoutable power at the expense of the duly-elected Executive.

    To me, this argument is over. It was over even before we had a Constitution, when Gen. Washington’s sentries searched Major Andre and captured the letters of Benedict Arnold. It was over when Lincoln tapped the telegraph lines. It was over when FDR read all the international cables after Pearl Harbor. It was over when the courts held it Constitutional in 5 different pre and post FISA cases, as noted by Powerline. It was over when Carter and Clinton both execised the same prerogative, no matter what lies they’re willing to speak today. Over, over, over.

    The only interesting legal question remaining is this:

    Which espionage statutes will Pinch and his Band of Yellow Leakers be charged under?

  58. Noel – Well yes and no. I really want to see Wilson sit in the witness box, clacking his steel balls together, and explaining with “geometric perfection” how his wifes “can of strawberries” ended up on the public bus….

    TW: Wilson was a loser in his service to the country….now hes going to get the chance to ”service” the left…..

  59. It seems to me the burden would be on the court or the prosecutor to prove that a witness should not be made available to the defense.

    The person that wants to introduce evidence has to show its relevant and probitive.

    Many on this thread have referred to the actual statute, and Charlie(co) even linked to it and quoted from it for you.

    He referred to a Bill, interestingly introduced by Porter Goss. That bill provided that the information could go to the intelligence committes after a long process. But the intelligence committes already knew.  And didn’t the inspector generals of the various agencies already vet this stuff? It seems like these ‘proper channels’ were exhausted. As well as not quite the ‘Congress’ that people have been talking about—rather the committees.

  60. - You are deliberately playing “dumb” actus. There is a set policy for anyone who wants to turn over evidence of wrong doing in his department. Moreover, it is carefully protected and processed to avoid all the usual chyronism CYA, or sidelining. Any Dem Congressman could have taken the info. Its a simple case of the left wanting max exposure, so they instigated the leaker(s) to go to the NYTrash, who can always be counted on to publish leftwing crap, no matter how baseless of unneccessarily harmful. Stop lying. Just stop. Its embarrassing….

  61. Any Dem Congressman could have taken the info.

    The statute said intelligence committe. But again, what good is congress knowing about it in secret? they can’t propose legislation.

  62. - S’ok actus. Don’t trouble your little head about it. Just suck on your bong and in good time it will all be clear. Happy trails amigo

  63. they can’t propose legislation.

    Why in the world not?

    The point is, anyone with classified information only knows what they know.  That is why they are supposed to go to people with the full story and the ability to make necessary changes without undue damage.  If the ‘proper channels’ don’t do what they want them to do, it doesn’t necessarily make those in the proper channels wrong.

    Say I’m a cop, and one day I see someone I know is a cop hanging out with a bunch of drug dealers.  I go to my superiors and tell them look, this cop is dealing drugs.  They tell me not to worry about it.  What do I do?  I go to my reporter buddy who writes a big expose on the drug-dealing corruption in the police force.

    But what really happened?  Did I expose corruption or did I out an undercover vice cop?  Did I do harm or good?

  64. Why in the world not?

    Because its a hush hush secret.

    But what really happened?  Did I expose corruption or did I out an undercover vice cop?

    I’m sure cops are able to tell the difference.

  65. Ignore actus …

    He does understand what it is everyone is saying but he is loathe to admit because it undercuts everything he’s been saying.

    So far, he has added nothing to this discussion and he’s not worth the time or effort.

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