From the NYT “News of Surveillance Is Awkward for Agency”:
At a news conference at the White House on Monday, General Hayden also emphasized that the program’s operations had “intense oversight” by the agency’s general counsel and inspector general as well as the Justice Department. He said decisions on targets were made by agency employees and required two people, including a shift supervisor, to sign off on them, recording “what created the operational imperative.”
An intelligence official who was authorized to speak only on the condition of anonymity said, “It’s probably the most scrutinized program at the agency.” The official emphasized that people whose communications were intercepted under the special program had to have a link to Al Qaeda or a related group, even if indirectly […]
[…] officials who have been granted anonymity in describing the program because it is classified say the agency’s recent domestic eavesdropping is focused on a limited group of people. Americans come to the program’s attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups. And the agency still gets a warrant to intercept their calls or e-mail messages to other people in the United States.
Had the agency openly sought the increased power in the immediate aftermath of the Sept. 11, 2001, terrorist attacks, “I’m sure Congress would have approved,” said Elizabeth Rindskopf Parker, a former general counsel of both the N.S.A. and the Central Intelligence Agency.
By concealing the new program, she said, the N.S.A. breathed new life into the worst imaginings about itself. “This makes it seem like the movies are right about N.S.A., and they’re wrong,” Ms. Parker said.
Of course, by concealing the new program, the US and its allies likely learned a great deal more about cell structures, communications, money transfers, recruiting, personnel management and movement, and a host of other things about our enemies and the way they operate within a given system of law.
But no matter. This is dustup is all about politics, and it seems the liberal left (along with civil liberties absolutists on both the left and right) is determined to make NSA surveillance an issue; if Iraq is Vietnam, it makes sense, in their minds, to flesh out this war’s narrative with a suggestion that the Bush administration is engaging in secret and illegal Nixonian surveillance of political opponents, outspoken dissidents, and ordinary Americans (in an reckless effort to get at their opponents).
With few exceptions, I don’t think many of them actually believe this story. But what such allegations provide for, however hypothetical and farfetched they turn out to be (and NSA oversight is some of the tightest in the country), is an ethos of romanticism, intrigue, and—for those hoping to experience or recapture that heady counterculture ethos—heroism, in precisely the mode of the antiheroes who peopled the political dramas of the early 70s, from 3 Days of the Condor and Parallax View to All the President’s Men and The Candidate.
Along these lines, today we learn that the ACLU has filed a FOIA request that would make public
[…] all records about “the policies, procedures and/or practices of the National Security Agency for gathering information through warrantless electronic surveillance and/or warrantless physical searches in the United States …
From my perspective, this is simply a petition on behalf of the original leakers to expand the scope of the leak of a necessarily highly classified program; and it is largely symbolic, I would imagine, as the information almost certainly falls under one of the 9 exemptions the NSA allows for FOIA requests
For true believers, there is absolutely no difference between the legitimate defense of our 4th amendment rights and exposing the details of an intelligence operation that is designed specifically to keep us a free and protected country, and to do so with an almost unnoticeable (barring certain illegal leaks) footprint.
Notes Jay Stephenson, “Isn’t it ironic that the ACLU wants our government’s secrets released so the enemy can see, yet they tell our enemies they have the right to keep their secrets from our interrigations?”
****
(h/t Rick Moran, who has more; see also, Stop the ACLU)
Glenn Greenwald asks the question that many opponents of executive AUMF powers are asking:
Once you advocate a theory that authorizes a President, even during times of an undeclared and endless war, to violate any Congressional laws he wants as long as he says—with no judicial review possible—that doing so is for the sake of our security, what possible checks or limitations on Presidential power are left?
This debate is about the President’s claimed wartime power to break the law, not his power to order surveillance. Put another way, for those who want to advocate this theory of unilateral executive power—but who then also want to deny that they are foisting upon America the King it never wanted—the question that must be answered is this:
Are there any limitations at all on what the President can do under the guise of national security and, if so, what are they? And, given this theory of the “wartime” President who can violate the laws of Congress and who can ignore the courts in areas of national security, what legal foundation could exist to argue for the existence of any such limitations?
These are legitimate questions, though I’d quibble with many of the characterizations (“under the guise of”, “foisting,” “violate the laws and ignore the courts,” etc.)
And it also bears pointing out the President didn’t simply pull on his chaps and Stetson and decide one day to “violate” the law; he went through the proper legal review and counsel, and the question is, of course, whether the President broke the law by circumventing statutes that were perhaps never meant to constrain his Article II powers.
But let’s have the discussion, by all means. However, doing so by preemptively calling your opponents jackbooted fascists and the like isn’t likely to tease out any serious debate.
Don’t forget the one about “undeclared war”. Joe Biden doesn’t think it’s an undeclared war.
TW: “language”. As in “what language are they speaking? They clearly don’t read English.”
Who are the “many” you’re referring to. I believe many of those commenting here in opposition to the program do believe the Bush-as-Nixon line.
The question in my mind is whether they’ve ever been willing to step back and consider the matter, or if their opposition comes from a deep-seated opposition to Bush himself and “Repuglicans” in general. Because, again, while they may have been upset when Clinton et. al. did much worse(*), there was no where near as much outrage over the issue.
(*) I count the admission that the FBI files of political opponents were illegaly obtained and given to political operatives to be a much more serious matter than the possibility that surveillance accidentally collected information on US citizens.
Greenwald may also want to ponder:
Are there any limitations at all on what Congress can do to limit the President’s exercise of his Constitutional powers to protect national security and, if so, what are they? And, given the theory that Congress can limit a “wartime†President’s executive authority by statute, what legal foundation could exist to argue for the existence of any such limitations?
So much of the argument from the left just assumes away this serious issue.
Jeff Goldstein = Hilter. But if JG = Hitler, and Hitler = Bush, and Bush = Nixon, is Goldstein really Nixon?
, is Goldstein really Nixon?
If Jeff=Hitler and Bush=Hitler then that means…
Hold on to your reindeer reigns, Jeff is W.
Mr. President, it’s a honor.
Some of us are familiar with the “hidden hand” presidency of Dwight Eisenhower. But this is clearly a dramatic change in presidential involvement in affairs.
The “hidden keyboard” president.
SMG
tour de force post by John at Powerline
So much of the argument from the left just assumes away this serious issue.
And what does that tell you about the left?
Tells me they are unserious people who say unserious things.
You can’t even begin to educate them on the topic of your post.
Therefore:
You put an article in the NYT saying people are “troubled” or “concerned” about the illegality of something Bush is doing.
Presto! Bush broke the law!
It is not illegal to listen when someone yells across the street.
Jeff, congratulations on doing a fabulous job on this issue.
From a legal perspective, there are interesting arguments pro and con about the legality of this program. I don’t claim any expertise, but I think it’s fair to say the answer really isn’t clear.
Which of course raises two issues:
1. When the legal answer isn’t clear, who gets the last word?
There are a lot of legal doctrines like standing and ripeness that make it less likely the courts could get involved in this case. And would we want them weighing in on this question, anyway? Especially if no identifiable American is harmed by the program. Not every legal issue should be decided by the courts.
2. As a matter of policy, assuming the correct resolution of the legal issues is unclear, do we want this program to continue?
The pros are that it seems to help catch potential terrorists and prevent terrorist attacks. And the cons? The cons seem to be that the program could be abused. That non-terrorist Americans could have their lines tapped by accident. That Nixonian or Clintonian presidents could turn the program against their political enemies. That there really aren’t any checks on the program. I can’t dismiss these concerns; after all, Nixon abused the IRS, and Clinton abused the FBI. But for the most part, they’re hypothetical against very practical, real-world applications in fighting terrorism.
I don’t mind when people strike the balance against this program, but let them be candid about it. Let them admit that the possibility of abuse is, for them, more important than any benefit we can get in fighting terrorism.
I recognized the Iraq=Vietnam meme months ago when listening to Harry Shearer’s poitical radio show, “Le Show”. At that time, the Downing Street memo was the hot topic, and he lead his show that Sunday with, “Well, ladies and gentlemen, if you’re too young to have experienced it, this is what it was like to have been present during the release of the Pentagon Papers”.
The activist Left is composed of Vietnam-era anti-establishment, anti-government, pseudo anti-capitalist ex-hippies (not that there’s anything wrong with that!) who want to re-live when they brought down a presidency. And this one would bring extra pleasure, because after all, Bush stole the presidency!
I suspect that once Congress returns, and sees that this story doesn’t have any legs with the public, the relevant committee(s) will meet with the WH to work this out to the satisfaction of both sides. It is still possible that Dem’s in Congress could have done this, but abdicated their responsibility purely for political gain, but I’m being cynical. There’s too much at stake, it seems, with classified information for this to become any more public than it has.
Unless of course the ACLU gets it way.
Comments such as:
Once you advocate a theory that authorizes a President, even during times of an undeclared and endless war, to violate any Congressional laws he wants as long as he saysâ€â€with no judicial review possibleâ€â€that doing so is for the sake of our security, what possible checks or limitations on Presidential power are left?
and
This debate is about the President’s claimed wartime power to break the law, not his power to order surveillance.
do not strike me as designed to move the discussion forward. Mr. Greenwald is merely begging the question, as you point out, of whether the president broke the law at all. Additionally, does anybody see what is glaringly missing from his analysis? Two words: the first has four letters and starts with a ‘c’, the second has three letters and starts with an ‘l’, and is covered in excrutiating detail here. Good luck with that discussion, Jeff.
Premises:
1) Electronic surveillance of US persons not conducted in accordance with FISA is a crime;
2) Administration does not argue it complied with FISA;
3) Possibiilty that some technical aspects of surveillance take it outside of FISA’s “electronic surveillance” definition, and therefore outside of FISA’s regulation;
4) Jeff says “the question is whether the President broke the law in circumventing” FISA;
5) It is important to know whether the President broke the law;
6) The only way to do that is to know more about the program;
Question: Don’t the details of the program need to be divulged publicly so we can know if the President broke the law?
Question: Don’t the details of the program need to be divulged publicly so we can know if the President broke the law?
Accepting your premises for purpose of argument only, can you cite a precedent whereby a C-in-C was required to publicly, as you state it, disclose enemy intelligence gathering programs prospectively to the general public, as opposed to the proper Congressional oversight committees, for its authoritative legal opinion? This is the United States, not ancient Athens. Get real.
No, it’s classified information and the general public doesn’t have a need to know it. The details need to be divulged to congress and the FISA courts as checks to provide oversight and ensure the executive branch isn’t overstepping it’s authority. Of course, that’s exactly what they’ve been doing every 45 days since the freaking program began.
Only if dealing political damage to the President over trivialities is more important to you than national securtiy.
Can you establish probable cause serious enough to warrant exposing the inner-workings of the NSA?
Okay—not publicly. Disclose the details to Congress, in closed session. Surely that’s not too much to ask. Is it?
Administration defends itself and the NSA <a href=”http://www.nationalreview.com/pdf/12 22 05 NSA letter.pdf” target=”_blank”>here</a>.
Stupid HTML tags.
PIMF, I guess.
Not all of Congress; that’s practically begging to get the fine details spread all over the front page of the NYT.
How can Congress debate whether the President has overstepped his authority and/or violated the law if Congress doesn’t know what the heck he’s doing?
That is why you have a Senate Intelligence Committee, a select few who monitor the process and raise flags if they see anything that concerns them. They get reports every 45 days or so. So far the only one to voice concern has been Rockefeller, who is concerned he is too fucking stupid to understand the problem, apparently.
Rockefeller should be concerned about his own stupidity. I’m pretty sure his staff has to tie his shoes for him.
How can Congress debate whether the President has overstepped his authority and/or violated the law if Congress doesn’t know what the heck he’s doing?
BMoe cut you a great deal of slack, MF. This question has been covered exhaustively. You might not like the answers, but that’s nobody’s problem but yours. If you don’t know the answers, I would suggest reading a bit faster.
Sorry for the snippiness. It just seems like we keep covering the same old ground.
Back when I was a little hillbilly hippie I was a campaign volunteer for Jay. Until I met him and realized how dense he actually was. He wore loafers, as I recall.
Well, as usual, we bash down another breathless non-scandal, whose flames were continuously fanned by thems that hates the Prez. As usual. Also as usual, instead of reflecting on the many drubbings received, they just move on to the next. With the coming Abramoff testimony, the left may actually have something real to sink their teeth into. There will be no admission of guilt on the left, by the left, of course. The injustice kills me.
Yet another illustration that the Democrats are the Charlie Brown of electoral politics.
I bet they’ll kick the football NEXT time!
You just watch, dammit!
If an NSA satellite photographs you masturbating in the woods and no one ever sees the pictures, should you be ashamed?
Kevin,
LMAO, that is great, and oh so timely.
TW: Respect, I have lost all of it for the left.
MF, the administration already disclosed the details of the program to the select committee many times. It has been the Democrats intentionally lying to the contrary.
“Of course, by concealing the new program, the US and its allies likely learned a great deal more about cell structures, communications, money transfers, recruiting, personnel management and movement, and a host of other things about our enemies and the way they operate within a given system of law.”
Someone explain to me how this is so.
At first glance, I can see why people might immediately think this is true. But does it really make sense? Here are the interesting places in possibility space that might be affected by the government admitting that this program exists.
Possibility 1a: The terrorists are not aware that their calls can be monitored.
Possibility 1b: The terrorists are aware that their calls can be monitored.
Well, if the government announced that it is able to wiretap certain kinds of call, we let the terrorists know, and they’ll act differently, right? But hang on…it’s *already* public domain knowledge that the government has the authority to wiretap those kinds of call. It’s just that a warrant is required to do so. So the terrorists would only be pushed from possibility space 1a into possibility space 1b by the side-effect of making an announcement that simply reminds people of something that was already public knowledge, i.e. that calls can be monitored (the warrant part is of no relevance here). In other words, if this is the critical area where we’re tipping off the terrorists, it’s no different from a newspaper publishing an article that mentions something already in the public domain, or someone asking a question about it in the senate. Would anybodyhave objected to that? Would you have gnashed your teeth and said, “Hey, DON’T REMIND THEM, you idiot!”?
The second split in state space is between:
Possibility 2a: In cases where they believe they might be at risk of being monitored, the terrorists would simply not make calls.
Possibility 2b: In cases where they believe they might be at risk of monitored, the terrorists continue to make call knowing that the process of obtaining a warrant is the critical factor that means they are unlikely to give away anything important.
In order for the concealment of the new powers to prove a major advantage in the fight against terrorism, you would have to believe that 2b was the case (which is a subset of 1b), i.e. that terrorists previously were fully aware that their calls could be moitored but basically shrugged their shoulders whenever they thought they might have been at risk of being monitored at that very moment, because of the warrant issue.
Is that what people think?
“Possibility space”?
Douglas Adams lives.
Ummm, I take it you haven’t studied any math, set theory, formal logic etc?
JB, you are assuming that terrorists are homogeneous with regards to their knowledge of both the program itself and its day-to-day operations (monitoring, selection process for decoding/translation/further action) as well the sophistication of their response to that knowledge.
And that the homogeneous terrorist has perfect knowledge of the program. Since any imperfections in knowledge would, of course, be exploited by the program.
The last time I ran into a homogeneous (or is it homogenous, I’m too lazy to check) entity, terrorist or otherwise, he was 2-dimensional, black and white and located in a basic microeconomics textbook.
Looking up at the post from JB:
Is there a mature or even semi-mature adult who doesn’t know phones can be tapped? Didn’t think so. And I doubt there are many terrorists or wannabes at this point who aren’t aware of such monitoring. Seriously, who would choose 1a?
2a and 2b: Come on now, we’re talking terrorists. Of course they’re either going to find another way to communicate or switch to codes. They may be fanatics but they ain’t stupid. And I’ll just bet they’re all over that whole code thing.
The only thing to learn here is 1. how does the NSA find them and 2. how does it turn their secret-handshake squiggles into something intelligible. Bottom line: none of our damn business.
There is no issue here. Never was, never will be. It’s just the latest ramping up of the quest to bring down Bush and the Republican party. Just one more expanding of the divide between “us” and “them.” In your quest to get rid of Bush and company, you pay no regard to the long term effects on the people of this country. The serious long-term harm to both sides of the political aisle. I’ve read in history about the “brother against brother” damage that endured during and long after the Civil War era. I thought it could never happen again. Well guess what. Not quite brother against brother, but I’ve lost a good friend over this whole Bush is Satan bullshit. It would seem that I, little old me, am part of what is wrong with America now, because I’m Republican, a VRWC criminally negligent citizen. Right now we’re just (just?!?!) losing friends. So, how far are you willing to escalate? Because, honestly? I’m done with the whole backing down to save an argument thing.
Tongueboy,
Forgive me, as this may be my fault, not yours, but I’m failing to see the relevance of your point. Perhaps I should rephrase my original question:
In what way would terrorists have been helped by learning that they could be monitored *without warrants*, rather than merely that they could be monitored, which is NOT the issue at hand.
Hi Nan,
“2a and 2b: Come on now, we’re talking terrorists. Of course they’re either going to find another way to communicate or switch to codes. They may be fanatics but they ain’t stupid.”
Well, I can’t help but agree with you. Which invites the questions:
a) How has e.g. The New York Times made our country a less safe place by revealing that terrorist suspects have been/can be monitored *without warrants*?
and
b) What is the primary reason that the administration wants to monitor without warrants?
orz
Sorry, JB, I was trying to be concise. But your reply makes my point:
In what way would terrorists have been helped by learning that they could be monitored *without warrants*, rather than merely that they could be monitored, which is NOT the issue at hand.
Some might not have been helped at all, as you seem to be implying. But some might have been helped, as well. Even assuming the answer is simply binary (helped/not helped), we may never know the precise percentage in each category because every terrorist is different in experience, knowledge and contacts (non-homogeneous). Let’s try a simple cost-benefit analysis of the program’s secrecy to illustrate my point:
What’s the cost? Well, the additional marginal cost of keeping secret an already secret program would be, according to my thumbnail calculation, around zero.
What’s the benefit? Unknown, as the terrorists are non-homogeneous, but we can reasonably calculate it as somewhere between zero and a radiological/chemical/biological attack with hundreds of thousands or even millions of deaths (“with a 95% confidence interval”, as the medical experts at the Lancet like to say).
Continued secrecy appears to have a potential payback that is incalculable (as the denominator is zero) and, more importantly, priceless. What is particularly alarming in not that the NYT and its defenders haven’t made a similar calculation and come up with different results, but that they may have come up with the same results but included another cost/benefit analysis, one of partisan political and/or material gain, in making the publish/no publish decision. Alarming, but not particularly surpising.
Strike and its defenders from the above post. I’m pretty sure the NYT does not subject its editorial decisions to a vote of its fans. But the point stands: it sure does look like the NYT’s defenders approve of its apparently ghoulish cost/benefit calculation on publishing the story.
Bush is president, not Prime Minister.
One day a year, he should shut off the electricity to congress just to remind them of
that.
Tongueboy,
Granted that my division into binaries is a simplification, do you think that most of the (non-zero) help this revelation will give to potential terrorists comes from them being made aware that their calls can be monitored, or that their calls can be monitored without warrants?
“What’s the cost? Well, the additional marginal cost of keeping secret an already secret program would be, according to my thumbnail calculation, around zero.”
At the risk of repeating myself, remember that what was secret was not the fact that terrorist suspects were monitored. It was the fact that terrorist suspects were monitored *without warrants*.
(Keep in mind the fact that FISA allows warrants to be obtained retrospectively, so it was already possible to monitor people now and obtain a warrant later.)
“What’s the benefit? Unknown, as the terrorists are non-homogeneous, but we can reasonably calculate it as somewhere between zero and a radiological/chemical/biological attack with hundreds of thousands or even millions of deaths”
Yep. We can also calculate as unknown the benefits of granting our generals the freedom to order and wear diamond-encrusted hats at the taxpayers’ expense. As we are increasing their range of options, we cannot be *decreasing* their effectiveness, and we *may be increasing it*. Therefore the benefits are unknown, but lie somewhere between zero and an ability to guarantee stunning victories in every theater of conflict from this moment onwards. This is trivially the case. The question is, where do we *think* the increase in effectiveness lies in that range?
JB,
Your “simplification” is precisely what renders your example inapt, hence my use of the phrase “Even assuming the answer is binary” in my prior post. But if I were forced to answer your question, I would decline both choices and substitute a write-in answer:
Much of the benefit gained by terrorists would be the security of knowing that an influential and powerful segment of the kuffir will risk its own security, enmity of its fellow citizens and possible imprisonment in order to deliver national security secrets into the public domain. While some terrorists might view this domestic soap opera as a set-up by the detested infidel, the more politically astute jihadist will pick up the signal that within certain admittedly unknown limits, a segment of the kuffir would rather engage in internicine struggle than confront the Jihad. The politically astute jihadist is then left with the task of figuring out just what those limits are, but surely becomes certain that his operational boundaries have expanded.
With that, I’m oughta here. Merry Christmas!
“Much of the benefit gained by terrorists would be the security of knowing that an influential and powerful segment of the kuffir will risk its own security”
Unfortunately, this begs the question.
Rather than explaining what the benefits of Bush’s actions were, you have chosen to *assume* that there *were* benefits and proceeded from that (as yet) unsubstantiated axiom to make a separate point (whose validity therefore depends on that of its unsubstantiated antecedent).
Anyone else care to step up to the plate and take a swing where Tongueboy declined to do so?
(Just in case it wasn’t clear, this segment would only be “risking its own security” if there were clear security benefits to be had from the actions they are questioning/opposing. And you have not as yet made any argument that such benefits existed. You have merely asserted/assumed that they did.)
I suspect a program that yielded no benefits would not last long or be fought for as hard unless it employed a lot of democrats.
Unfortunately, this begs the question.
Well no, what it does is give you an answer that you neither anticipated nor wanted.
Rather than explaining what the benefits of Bush’s actions were, you have chosen to *assume* that there *were* benefits and proceeded from that (as yet) unsubstantiated axiom to make a separate point (whose validity therefore depends on that of its unsubstantiated antecedent).
And you’ve made no assumptions of your own? You know, the ones I keep pointing out over and over again? That you refuse to acknowledge?
I assume that it is better to know what your enemy is planning to do so as to concentrate defense efforts in his way rather than to attempt the impossible of defending every vulnerable point. Fence the enemy in, or fence the world out.
To even suggest a value to ignorance is evidence that you posess a store of the same.
To deny we have enemies validates the above statement.
thuh-whack
Please wake up everyone!!! George Orwell’s depressing depiction of the hypothetical complete loss of humanity may soon be upon us. Get over yourself and your political views. Regardless of the validty (or some may argue lack there of) of such provesions, the stage is begging to be set. I am not saying our current leaders are trying, or are capable of, controlling our humanity, but, i have never seen an instance in which capabilities have not been abused.