I’m going to take it easy today—play with the kid, watch a few Bowl games—but in the meantime, allow me to point you to Glenn Greenwald (and co.’s) latest, which charges me with being a mindless Bushbot (“the wingnut’s wingnut” who “hates the first amendment,” according to his commenters) because I simply will not see the light and just admit, as Chuck Hagel, William Safire, et al, have already admitted—that Bush broke the law, trampled the Constitution, spied on American citizens illegally, etc etc.
Sadly, I have no shame—and so I remain unswayed by bandwagon appeals, or by arguments that profess to be questioning my motives (but that are really nothing more than poorly disguised ad hominems). Ironically, the only people who were questioning my motives during the Schiavo affair were a few social conservatives. So it appears I’m an equal opportunity ideologue. Yay me!
Anyway, your assignment for today, should you choose to accept it, is to compare what Glenn has written with what I’ve actually argued on these topics. For instance, Glenn notes that I envision the media as “some sort of dispassionate, mindless, uncritical conveyer of government statements and/or opinions by others,” while refusing to note that that’s precisely how the press presents itself, and that what I’d like is for them either to stick to that description, or else—as I made clear in my post—admit their biases up front. That is, I think it important that we know what it is the press thinks it is doing if democracy, which is dependent on an informed populace, is to work effectively.
Pace Glenn’s assertions, I am not at all bothered by an aggressive, opinionated, adversarial media. What I am bothered by is that same aggressive, opinionated, adversarial media pretending to dispassion and objectivity. A democracy relies upon its citizens getting the facts. If the most prominent cultural conduit for disseminating facts is acting disingenuously about the way it is doing so—if the legacy media are massaging stories to teach preconceived lessons they believe we should be drawing from the facts while pretending simply to be reporting those facts—then the paradigm is broken.)
Similarly, I noted over and over that DoJ has argued that it doesn’t run afoul of FISA, precisely because it notes an exemption by way of AUMF. Further, I’ve argued that we don’t know enough about the particulars of the program to say with any certainty that FISA has ever once been circumvented—even though the Administration has argued its authority to circumvent FISA by way of statutory exemption. Glenn spins this as my having held doggedly to a position that the administration itself is not holding to; but what I am actually doing is remaining true to the information about the program that has actually been revealed to us.
Again, I invite critics of the program to cite specific instances where the law has been violated. Beyond that, Glenn’s entire argument is based upon his own disputed legal readings (esp. of Youngstown), which are themselves drawing on hypotheticals of his own construction in order to uncover violations of his own imaginings. My own hypotheticals, such as they are, tend toward trying to understand the technology involved.
Of course, Greenwald’s entire ploy of late—in all of his lengthy dissertations on the subject—is to construct hypotheticals in order to assert that under certain conditions (conditions not in evidence, mind you), the President has broken the law, which means that leakers are not really leakers, but are rather “whistleblowers,” and that whistleblowers are by very definition “heroes.” When heroes break the law, that’s okay, Glenn argues. Or, to put it as clearly as possible—breaking the law for certain to keep the President from protecting us aggressively against a foreign enemy that establishes cells in a host country and attacks from within is more valid than (potentially, but certainly not objectively) breaking the law in order to actually protect us from those enemies.
To people like Greenwald, the President, the DoJ, and the NSA are the villains here (a point he tries to hammer home by noting concerns from Comey and Ashcroft, but then holding back that their concerns led to an audit, after which the program continued — and continues—apace). And this position seems to me exactly backwards—a real example of ideological blindness. And no chiding me about my supposed hatred of the first amendment, or my desire for a police state, or any other equally hyperbolic charge is likely to change that assessment.
Ultimately, what the story boils down to—for all the legal posturing from folks like Glenn—is this: 1) are we or are we not at war?; and 2) who has the power to wage war, and where does that power begin and end?
In short, this is a Constitutional pissing contest over separation of powers. And it is a rather bald political attack on the President by partisans on the left (and, to be fair, civil liberties absolutists, who would probably attack any president who asserted these powers).
Would I be supporting this program under President Kerry (assuming he believed we were at war)? Absolutely. Would critics of the program oppose it under President Kerry? Possibly. But forgive me if I have my doubts.
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Further reading here and here.
Also, Instapundit notes the NYT ombudsman Byron Calame’s reaction to this whole affair, and rounds up other reactions, including thoughts from Bill Quick, Rand Simberg, Joe Gandelman, Andrew Sullivan, Jeff Jarvis, and Jay Rosen.
See also, “libertarian” Bill Maher (at Huffpo) and Jane Hamsher—who in keeping with the seriousness of the left is pushing a Newsweek online poll as a way to assert public outrage over the President’s “illegal” authorization of signals intel gathering.
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update: Tigerhawk has a post on journalistic ethics that dovetails nicely with my back and forth on the matter with Greenwald and Tbogg.
For me, the problem with the press is one of public expectation. We’ve been taught for years that the responsibility of journalists is to report the facts (importantly, this is a claim that’s been made by journalists) only to find now that journalists have interpreted that to mean it is their responsibility to divulge “truth” and teach “lessons”—and that they get to decide what that truth is and what those lessons are, and that, even more problematically, they believe it is part and parcel of their responsibility to convince readers of those truths and teach them those lessons even if it means using certain rhetorical devices that militate against what would by objective standards be called a fair airing of the facts.
Such advocacy journalism is not a problem per se. It is, however, a problem within a paradigm that has purported to be doing something different all along.
Wrong. Just wrong. There is a defined process for being protected as a whistleblower, which begins with a visit to the Inspector General.
At no point in the process is the NY Times involved.
I had thought it would be impossible for the Republicans to pick up seats in the House and Senate in 2006. But they will, not because they are brilliant, but becuase people like Greenwald, and the MSM, make them seem that way. Come November who do you think most people will vote for. Those who will give Islamists and Al Qaeda memebers free run of America or those who won’t? George Bush, whatever else his faults, has one sterling thing in his favor…his enemies. I assume Karl Rove will be sending Mr. Greenwald Christmas cards for the rest of his life. He certainly should, anyway.
As I have said time and again in the comments of your various posts: “What we don’t know about this program far outstrips what we know.”
I don’t understand how any objective, logical, thinking person, critic or adherent, can conclude with no hesitation that the program is legal or not. You have stated that you “believe” the President acted legally, based on the information we have at hand. IMO I also believe that the program is legal and necessary, based on what I know.
If additional information comes to light I can revisit and revise my opinion. How can the critics of this program conclude and state as an incontrovertible fact that the President has acted outside the law? They know no more than you and I. The President and the DOJ have stated that they have acted proper and legally, Congress has been kept advised and there is no proof to the contrary. What is the problem?
Critics sounding off about the illegality of this intercept program know nothing about the mechanics, who is targeted, what data or intelligence is collected and what procedures are put in place for further surveilance. They rely on the “if”. “If” a US person is surveiled without a warrant, then the program is illegal. I got news for you, “if” the dog hadn’t stopped to shit, he would have caught the rabbit and “if” your aunt had balls, she would be your uncle and “if” that ‘dillo ever dances, the NYT will retract and correct every incorrect article it has ever run.
tw: I have miles to go before I sleep.
A quibble: they’re not “poorly disguised ad hominems”, they’re ad hominems in themselves.
Well, except for the bandwagon one, which is argumentam ad populem.
TW: “wife” as in “yes, this does kind of remind me of my ex-*”
I just hope they find the shitty assed rat fuck who leaked this story. If I found him/her, I’m afraid I would have to ignore our laws on torture to find out what other low-lifes were involved.
Whistle blower my butt! These are people who could care less what happens to your family and mine, as long as it brings down George Bush. As far as I am concerned, waterboarding is too good for them.
Being something like a libertarianâ€â€but much, much worseâ€â€I reflexively think the government unjustified in doing anything like what the NSA is said to have been doing. (Or anything at all, really.) At heart, I’m more anti-Bush than the whole world of Koses and DeLongs and Greenwalds put together.
However, the press coverage of these stories under Republican administrations is so sensational and untrustworthy, I find myself giving the otherwise-criminal likes of the NSA and DoJ the benefit of the doubt.
What the law says doesn’t matter to me, but granting that there’s any debate to be had at all, it *is* what’s at question. The analyses here and at the Standard have been completely sensible, and, based on the information we actually have, completely correct.
What’s coming from the “other side” is straight-up propaganda. If they don’t know it, they’re not sane.
President Kerry. Boy, that gave me a scary shudder.
Charlie —
Well, Glenn at least pretends to be trying to puzzle out my motivations, so I gave him the benefit of the doubt. Yes, of course they are ad hominems, but they are disguised not to be so readily uncovered as such in some cases. Especially compared to, say, the “Jeff Goldstein is a wignut who sucks Bush’s balls”-type argument.
Come November who do you think most people will vote for. Those who will give Islamists and Al Qaeda memebers free run of America or those who won’t?
I’d start an ad with a clip of GW saying “If somebody from al-Qaida is calling you, we’d like to know why.” Then run the clips of Schumer and ilk yammering about “whistleblowers” and “impeach Bush!” and ending with scenes of the Islamofascist terror and the question “who do you trust to confront, rather than appease, these people?”
It’s very easy to come to the conclusion that a crime was committed. Just start with the assumption that anything that president Bush does is probably illegal, parse every associated law under that assumption, and voila!
BDS continues its scourge, destroying the sanity of the left. Will it ever end?
Er, so’s your pal Lauren, JG.
Hadn’t been over there yet, Allah. But yeah, that’s almost as asinine, though Hamsher seems to (pretend) to take it more seriously.
It’s always interesting when people pull out slimy ad hominem smears to argue. It almost always means they have nothing else on their side.
I believe based on everything I’ve seen that this is probably legal and, more to the point, if it was illegal, there are multiple honorable and legal ways to protest it. Blowing the cover off of a covert national security operation isn’t one of them.
I want the vermin who did this to be found and prosecuted to the fullest extent of the law.
When anyone says something like “President Kerry” I have to put everything out of my mind and think of nice thoughts like Shannon Elizabeth’s boohoobies for a few hours just to get my perspective back.
Now I guess it seems honorable or honest to wait for all the details, to desire to know more, but come on…that the left can’t understand that even if 20 laws were broken to do this, the public will WANT the laws to be changed so it is LEGAL.
So looking to online polls for reassurance that your Bush Hatred is justified is stunning in its stupidity.
I am seriously amazed they can’t see the political train wreck this is for them. From a political perspective this is a no brainer, and the energy these lefty hand-wringers devote equates to pathetic desperation.
I almost feel bad for them.
@Dean Esmay: I believe based on everything I’ve seen that this is probably legal and, more to the point, if it was illegal, there are multiple honorable and legal ways to protest it. Blowing the cover off of a covert national security operation isn’t one of them.
The thing that scares me the most about this is that neither the MSM NOR the “experts” they’re consulting have a clue what the NYT exposed.
I’ve posted this message in a number of places on the web, and it seriously needs to get out so that the general public understands what happened.
______________________________
My expertise is not law, it is computer systems… an expertise that goes back to the days when “telecommunications” meant handing a computer tape to a courier to transport over to the satellite uplink. In the Air Force I supervised a then-classified “breakthrough” system designed by Honeywell that was one of the parent system designs of the Arpanet, later known as the Internet. I’m currently an operations manager and team leader in the mainframe room of a major Florida concern. Because of my “historic memory”, I know how computers work, but more importantly, I know WHY computers work. I do not quote sources. When it comes to computers, I AM a source. Other people quote me. Among the things I do is teach computer technology in English instead of Conversational Unix, so perhaps it is incumbent upon me to explain this so it can be understood, since I understand how a keyword database works.
Those are my bona fides. Take them or leave them, given that I could be a bratty high school kid putting you on, for all anyone knows. That having been said, I advise you all to take this message VERY seriously because I completely understand what the New York Times exposed.
Let’s ABC this.
The NSA has a list of phone numbers outside the US that known Al Qaeda operatives have used. These numbers were lifted off of the speed-dials and “most recent calls” of jihadis who were captured.
A number from that listing makes a call into the US. Maybe Abdul Al Jihadi is calling Auntie Jasmin in Dearborn to find out how her ulcers are doing. If that’s so, nothing happens. There are no “code words†from the terrorist keyword database that will trip the monitoring. The system has recorded the entire call, but without the presence of the keywords, it will throw the recording away as “useless”.
However, if Abdul Al Jihadi is calling an Al Qaeda CELL in Dearborn and mentions certain words in any of several languages, the monitoring is tripped. And it happens immediately. Excellent information is gathered; this WAS our most important intelligence tool. Past tense.
The “civil rights” shouters would want it so that the NSA has to interrupt the call and say, “Wait, Mr. Al Jihadi… could you please hold up your conversation for a few moments while we get a warrant to listen in to your US receiver’s side of the call?â€Â
And that makes no f***ing sense!!!!
But the worst part of all, the jihadis are now aware, thanks to the New York Times, that their calls are being monitored via a keyword database.
So now they start using codes that we are going to have to decrypt and completely rebuild the keyword database… something that we do NOT have time for. Maybe “Auntie Jasmin” becomes a code word for the Sears Tower, and “Dearborn” for Chicago. And maybe “ulcers” becomes a code word for bombing.
And there is NO reason anyone should be able to decode such a simple swap code until the Sears Tower blows up. In this most idiot of all codes, any word can mean anything. The only way we could learn the meanings of the codes would be if we got extremely lucky and captured a new code book.
Or maybe they’ll just throw away their current phones and get new ones, since they’ll assume that their phone number is known to the NSA.
We’ve lost a MAJOR ingelligence tool, and the public is no longer as safe as it was a couple of weeks ago.
Thank you EVER so much, New York Times.
And it’s about damn time DOJ is looking into this treason!
I’m of the opinion that if this leads to ANY terrorist attacks in the US, the New York Times should be sued by the general public for gross journalistic negligence, and any other charge we can hang on them. The only acceptable outcome should be the complete shutdown of this rag.
The exposure of the keyword database has put all of us, personally, in danger. The keyword database is a large part of the reason there have been no successful terrorist attacks in the US since 9/11. We were catching them even as they were planning their actions. Every “tripped” call to a number in the US exposed a new terrorist cell.
We have lost that now. Congratulations, NYT!
The stance of the left trying to say that warrants are needed to intercept those calls is that we are not at war, so wartime powers do not apply.
We ARE at war, and wartime powers DO apply. The government thinks we are at war. Every terrorist group that has ever declared a jihad against the US (which is most of them in the Middle East!) thinks we are at war. Congress thinks we are at war, given that they voted to give President Bush wartime powers to fight terrorists “by any means necessary”.
Warrants are NOT NEEDED. Further, the very idea of thinking that we need to get warrants for the situation of monitoring a call in which someone has actually SAID something along the lines of, “Go to Chicago and blow up the Sears Tower,” in any one of several languages, is utterly ridiculous. The incoming calls that tripped the keyword database were ALL saying something along those lines.
That is how the keyword database works.
There is not ONE SINGLE innocent call among those they wanted to get warrants for. Even if an al Qaeda operative calls the US and is JOKING about, say, blowing up the Brooklyn Bridge, I find that sort of humor singularly unfunny, and deserving of investigation, with or without warrants.
The NSA doesn’t have the frikkin’ TIME to monitor all calls coming into the US, not even from just those “special” numbers. ALL of the monitored calls have keywords in them that tripped the monitor. NONE OF THE CALLS ARE INNOCENT!
Amazingly, more than 70% of the US population… including 51% of Democrats… understand that the NSA SHOULDN’T need warrants for this sort of thing. ALL of these people view the claim that warrants are needed as obstruction of national security. They understand that the NSA is not trying to build a legal case but rather are trying to save YOUR neck.
This entire “outrage” about the warrants needs to be deep-sixed… wartime powers are in effect… and the leaker discovered and sent to prison. Not wrist-slapped, sent to PRISON. The blood of the victims of the next successful terrorist attack (WHEN, not if!) will be on his hands.
And the New York Times, I repeat, should be shut down for journalistic negligence and gross incompetence.
This is a national security violation every bit as dangerous as exposing ENIGMA would have been during WWII.
@Dean Esmay: I want the vermin who did this to be found and prosecuted to the fullest extent of the law.
I said pretty much the same thing in my screed above, but actually prefer the “shoot on sight” approach!
This will ramble, and goes w/o spellcheck:
How exactly does the government “get its message out” w/o some sort of compliance with news &/or media organizations? It’s certainly not easy; the only means would be to create its own media outlets (propaganda) to compete with the “adversarial press.” Obvious propaganda outlets (I’m thinking on an advertising and marketing level–“Drugs fund terrorism” ads–not the boogyman that is made of Fox News) are pretty much scoffed-at by a free, informed public–especially one as media savvy as ours.
IMO the first goal of journalism should be to inform, not merely be an adversary to whomever it presumes a source of “Power,” to whom Truths must be Spoken. How can you Speak Truth to Power if you don’t have a handle on what is True in the first place (otherwise, isn’t it, “Speak Opinion to Power,” or more likely, “Speak Spin to Power”)? When dealing with government sources, decision-making processes, debates, etc, why would it be the mission of the press to a) pick a side in the first place, and b) need to pick the “less powerful” side’s position to speak from? A democratic government is entrusted with the responsibility for both liberty and safety of its constituents. If the press Speaks to Power with the voice of the people, then it should follow that it really does need to be very careful in how it approaches situations like this–in which the desire for individual liberty/freedom conflicts with the necessity of the state to provide security for those same individuals.
Wanting to comapre NSA surveillance on terrorists to FBI surveillance on organized crime I google-found this in an article from 1999 …
So I’m guessing that in regard to criminal investigation a legal wiretap on one person (eg crime boss) does allow monitoring of calls between him and other parties (for whom there is no warrant).
If it were proposed that FISA type rules should apply to criminal investigation …
(1) No monitoring without warrants for all other parties
(2) 72 hour retro warrants allowed “in emergency”
(3) Probable cause for retro warrant needs to be independent of monitored content
I claim that criminal investigators and prosecutors would scream their heads off that FISA style restrictions applied to them would be completely unworkable.
The NYTs is well written, intelligent, thoughtful and it usually has my respect. It has a liberal slant. I know it, you know it, they know it. When they report news, they report it their way and almost anyone reading them knows what they are up to. They told us what they thought about Bush when they endorsed Kerry.
But I didn’t elect the NYTs to make national security decisions for me. A journalist selling a book is ill qualified to determine the legality of an intelligence program or the implications of exposing it. They may argue the fine points of FISA and whether the President needed warrants or more approval from Justice or oversight from Congress but what the NYTs did they did with no oversight at all.
If it turns out the program was perfectly legal (or arguably legal), that the leaker had an axe to grind (or was just wrong), or the information sources now dry up, there is nothing they can do to make this program secret and viable again.
They acted on my behalf they say, but I gave them no permission to do so. The president is elected. The Congress is elected. But the NYTs, who decries money’s influence in politics, made a national security decision based on their own interests- and hope to sell newspapers (and books) off from it.
That is what offends me.
Dan Rather steadfastly maintains that the mainstream media has no bias and that the NYTimes is middle of the road w/r to political orientation. Lucky for us that Al Gore invented the internet, thereby bringing about an alternate venue that allows opposing points of view to reach a wide audience. It is astounding that Greenwald misses this point.
Perhaps he is in denial, and thinks the old rules still apply. IE, leftist elitists put up talking points, their lapdog media acts as a megaphone to amplify them, and the public perception is turned into a virtual reality.
Now that we are in a state of war the consequences of self delusion are much, much higher. The Lieberman left understands this. The Greenwald/Soros/Dean left remain trapped within their own narratives.
ps. In that Jay Rosen link, Jason VanSteenwyk has some interesting thoughts about the role of the press.
The sense I get is, not necessarily to sell books, but rather to prevent itself from being scooped by its own reporter, on a story it was already developing for over a year.
Personally, while I note the press should feel ideologically-bound to tread carefully when dealing with NatSec issues like this, I don’t necessarily fault the NYT for publishing the story, so much as I fault the leak’s source(s) itself, who apparently left official channels unpersued before going to the press. That said, there are certain factors that muddy the issue with this story, most significantly having to do with a) the late publishing, and b) the timing of the “revelation.” We’ve gone through this in previous posts/threads, but to dismiss offhand (as Official press/media watchers seem to have done with this question) the glaring convenience re: when this story finally ran, almost paternalistically begs my credulity.
Uh… so now I’m off… to go ghost-factcheck parts of a certain NYT columnists’ book… heh…
The MSM is a politcal party, nothing more. It’s members are spin doctors, nothing more. Perhaps that is all they have ever been. I don’t necessarily think there’s anything wrong with that, but they should acknowledge it.
Jeff, full of righteous indignance, writes:
Let me suggest that Jeff’s inability or unwillingness to confront hypotheticals posed by Greenwald or others, including me in the comments sections of many a post, indicates a few troublesome things about his posts on this issue.
One, Jeff has forwarded specific legal arguments in defense of the legality of the NSA program, arguments that have echoed those of the Administration, and also arguments that the Administration has never made. Having so done, Jeff now has an intellectual responsibility to defend those legal arguments in the context of hypotheticals that may or may not be “extreme”—i.e., which may be unlikely—but that test his legal theories at their edges. This is how legal theories are tested, in the Supreme Court, in law offices, in law school classrooms.
Two, it is disingenous to the extreme for Jeff to say that Bush critics cannot (a) dispute the legality of the NSA program based on what we do know and (b) pillory the Administration’s unsupportable legal arguments simply because some of our arguments rely on hypothetical facts that are “not in evidence.” The whole damn program—and the details of its procedures and uses—are still secret! And given the nature of the leaks, the probable identities of the leakers, and certain undisputed facts and statements by the Administration, there are legitimate questions as to whether the program was limited to the instances publicly acknowledged, and if so, whether that violated FISA. I am not required to take the Bush’s assertions that he has the proper legal authority at face value. In short, Jeff’s legal defenses of the program are based as much, if not more, on “hypotheticals” than are ours.
Third, I suspect Jeff also is loathe to address hypotheticals because if he admits that, say, under hypothetical X Bush has clearly broken the law, he won’t be able to say otherwise once it comes out that hypothetical X actually occurred. I believe that under no circumstance would Jeff ever admit that Bush broke the law. By claiming “not in evidence!” over and over again and not addressing hypotheticals, Jeff is free to avoid committing to a position on where Bush’s authority to surveil American citizens in America without warrants ends. And this gives him the leeway to adjust his legal arguments later if and when it becomes evident that the NSA program did, in fact, violate FISA (“AUMF as other authorizing statute” arguments notwithstanding).
Fourth, our arguments that Bush has violated the law are buttressed by the Administration’s unique penchant, in several situations, to state that, under Article II of the Constitution, it has the authority to do just that. It’s not an exaggeration. They certainly made that argument with respect to Padilla’s detention (and were so afraid of getting shot down by the Supreme Court that they engaged in enough funny business to piss off even uber-conservative Judge Luttig). And they made that argument, and brazenly continue to make it, with respect to the torture ban. So when we object to the legal theories being advanced in favor of the NSA program, it is as much a reaction to that brand of Constitutional law[lessness] as it is to the specific aspects of the program itself.
That’s probably true, yet I don’t find that especially noble.
You are right, the paternalism is galling. Especially when the story itself is begging me not to trust government, but to trust the NYTs and the anonymous leaker instead. But I’ve repeated that often enough, so I’ll stop (or try to) now.
Mf,
You’re the one trying to impeach a president on the basis of a hypothetical. Why do you think you shouldn’t have to present even a shred of actual evidence that any wrong doing has been committed?
Ah, now we get down to it.
Okay, so let’s accept this for argument’s sake. (I’m personally suspicious of the notion that what’s done under controlled conditions in the Supreme Court is all hat disposative for a blog discussion, but I’ll let Jeff make his own arguments there.)
But I notice that a number of these hypotheticals — I’m thinking specifically of an assertion that this interpretation of Article II meant Bush could do “anything he liked” without check — were meant to inflame, not inform.
But this, while prettily phrased, is simply absurd, and leads to exactly the sort of question-begging argument that Jeff is talking about. If we allow, on the basis that the details are secret, for any hypothetical assumption of facts, then it’s easy to prove any assertion. Vacuously.
But then Jeff is asserting that, based on the details that have been published or stated by the various people involved and based on his reading, plus the arguments presented by others it appears that we must conclude the program was probably legal. (We, of course, can agree with the argument.)
But MF, you’re asserting something quite different: on the basis that “the whole damn program is secret”, to make other assumptions, including apparently assuming the contrary to things that have been stated and not disputed.
So let’s assume that this is an acceptable approach. Then I’m equally entitled to assume that you’re an attorney for the DNC on an agitprop assignment from George Soros, or a staffer for Sen Schumer who is aware of the real program but making a bunch of false assertions in order to establish a better ground for the inevitable investigation. Not to mention noting that you might be a Red Lectroid from Dimension 8.
Do we know everything? Surely not. But if we allow, within the “rules of the game”, the assumption of anything including assertions contrary to what’s been made public, we make the argument empty: we learn nothing except that if we assume Bush is the Devil we can “prove” he has cloven hooves and horns.
But it really comes down to this:
You’re precisely right, there: it’s not an exaggeration.
It’s an outright falsity, self-contradictory: the Bush Administration cannot possibly assert as a legal argument that it has the right to “break the law”. The Article II argument is an assertion that under some circumstances the law, for reasons of separation of powers under the Constitution, has no force; it can’t be broken because it doesn’t exist.
We could argue over the Article II issue — although, again, let’s make sure that our arguments dont assume, for example, that Roosevelt’s actions during WWII, and Wilson’s during WWI, don’t exist. We may think it’s wrong, but if we assert that Bush doesn’t have Constitutional powers that have been asserted by oprevious presidents and upheld by courts, we’d better have a good argument for what changed.
Personally, I suspect that what you assert about Jeff is perfectly mirrored on your part: you want to make unlimited assumptions of additional facts “not in evidence” because you keep finding the bounds of what might be a violation of the law more and more tightly bounded … and if you’re not careful, you’ll find yourself in the position of realizing there’s no circumstance under which with what we currently know, you can maintain the argument that Bush not only violated the law in some technical sense, but is glaringly, massively in violation.
Jeez MF, et al, can’t you put your name at the beginning of your pages long piles of irrational nonsense? That way you fool fewer innocent people (such as myself) into reading the first couple of sentences of predictable BDS insanity. Come on, life is too short to waste it listening to people with mental illness, such as yourself.
MF misses the point entirely. The press largely has been bumping and pumping and headlining this like it is a known fact that Bush did something wrong. The press for the most part isn’t having hypothetical arguments about this.
It is one thing for bloggers to put forth hypothetical arguments about what Bush did or did not do. It is quite another when the press puts forth these hypothetical arguments with hysterical headlines that presuppose (non-factually) their hypotheticals are true.
This whole thing is a Rorschach test, just like the TANG documents, just like Plame and the British memo thingy.
What tires me is how far everyone jumps when word hits.
I guess I’m just not an Alpha personality, but when this news came out my first response was “well, that’s not enough to hang a hat on, so I guess we’ll have to wait and see if anything significant happens.”
So, the Out-Of-Power-Party jumps like that Famous Frog of Calaveras County. Impeachment? Whatever, dude.
tw: I have such wonderful products to sell you.
As far as the WireTapGate, I’m still waiting for a reply to my question….
– For all the leftard goobers out there, your socialist CULT, laughingly refered too as the Democratic party, needed their malicious partisan moles to plant this maleprop in the rabid MSM for max face time. Conratulations. You’ve managed in one swift move to treasonize some of your members and put yourselves in a position for a bitch slap heard round the world by the electorate. To wit. Since you so love polls in your on going get Bush campaign – poll this: FOX is reporting that a poll taken in the past few days shows that 96% of the public says “No problem – Wiretap away”
Good luck with that….
– So what we have is a political season of RatherGate bowl, SwiftboatGate bowl, MissingArmormentsGate bowl, PEWexitPollGate bowl, AbeGraibeGate bowl, GuantanomoGate bowl. MotherSheehanGate bowl, PlameGate bowl, BlackPrisonsGate bowl and WireTapGate bowl….
The Dembulbs are 0 and 10 against Bush, with less than 2 minutes to go and no time outs. Losers…
TW: I really want and need a gaggle of dementoids that think war is a game leading this country….oh yes….thats the ticket….
I’ve come to the conclusion that MF is Johnny Cochran’s ghost using the Columbian necktie meme.
So let me get this staight…
We’re supposed to evaluate a choice of action between what actually happened and rules of law (as supported by several judicial and legialtive actions) and hypothetical situations that only apply in the abstract?
Am I missing something, other than the differecne between Plato and Charles Schulz? Except for the lack of occasional laughs from the latter pretenders?
Big Bang Hunter: Conratulations. You’ve managed in one swift move to treasonize some of your members and put yourselves in a position for a bitch slap heard round the world by the electorate.
ROFLMAO!!!
Big Bang… do you mind if I
stealborrow this quote?– knock yourself out mama…. *chuckle*
Charlie – not only are you doing a major-league effort to promote common sense and logic, but even better, you manage to slip in an allusion to Buckaroo Banzai!
MF-
Just what is “hypothetical” about medieval crackpots who have demonstrated their willingness and intent to kill you and all your loved ones? I lost FIVE friends in the WTC catastrophe. How many did you lose? Apparently not enough to have it impress you more than the latest episode of “The West Wing”.
I happen to live on the Earth. You apparently live in a fucked up little world that exists inside of your obviously mush brained head.
You can project anything you want to on the Bushies, but speaking from a reality based position, what I see is an administration that is trying like Hell to protect innocent Americans. Your obvious egotistical pride in your “intellectualism” blinds you to anything that goes on beyond the end of your nose. I challenged you before to give us just ONE example of abuse of these intercepts, but of course, for you, that’s just not important, is it? We are still waiting. Let’s see. If AQ is calling you, we don’t need to know why. We can always find out AFTER they kill another ten thousand people, right?
We ARE in a war, and you remain just one more fucked up narcissist – putting our safety aside so that you can intellectually preen in the fucking mirror. Get a life. You don’t have to put us all in danger just to get a little tail.
Well, Lost Dog doesn’t like me, that much is obvious. All I can say in response is that this is more than intellectual posturing or anything silly like that.
I am intensely loyal to a Constitution under which the President is subject to the laws of Congress aimed directly at controlling him. This is especially true in an age when the President is the most powerful person on the planet, with vast military arsenals and electronic surveillance techniques and economic might at his disposal. I believe that under no circumstance does the President have the authority unilaterally to declare that a law, insofar as it encroaches upon his so-called “inherent Constitutional powers,” does not apply to him. (Charlie (CO), correct me if I’m wrong, but this is what you are saying when you write: “The Article II argument is an assertion that under some circumstances the law, for reasons of separation of powers under the Constitution, has no force; it can’t be broken because it doesn’t exist.”) I assure you all, no Supreme Court would ever accept such a theory; in fact, it has already declared that theory dead in Youngstown, regardless of the admirable attempts here and elsewhere to argue that case away; and if it ever did accept such a dubious theory, especially in the open-ended circumstances of the war on terror, the Constitution’s separation of powers would be null and void. At best, the Prsident has the ability to go to a federal court to argue that a certain law does not bind him in the conduct of what he has determined will advance teh war effort. But under no theory of the Constitution does that man have the power to decide, in secret, that a valid law whose purpose is to control the Executive does not, in fact, control the Executive, and then to implement a secret program that arguably violates that law. According to many (a majority of?) legal analysts, that is precisely what we have here.
Charlie (CO), and others of you, have pointed out correctly that prior Presidents like Lincoln and FDR took on more Executive/Commander in Chief power during wartime than, perhaps, the laws of Congress or the Constitution allowed. Very few expansions of Presidential power in wartime have, in history’s retrospective lense, been adjudged necessary or just. That the current war is inarguably (A) partially being conducted on our home turf; (B) targeting some, if not many, American citizens (who, if they are aligned with Al Qaeda, are indeed enemies); (C) never going to end with a signing of a treaty or cease-fire; and (D) will last beyond our lifetimes and likely our children’s lifetimes, makes me extremely wary and suspicious of claims of inherent Executive powers during wartime.
The fact that I am not a particularly big fan of Bush makes me more cognizant of the basis for my skepticism, but it certainly is not a dispositive feature of my analysis. In fact, if you go back and read my many comments on this issue on this site, I have tried to steer my arguments toward what a hypothetically crookedExecutive might be able to get away with under the legal theories adavanced by Jeff et al on this site. I have not focused on Bush, because, as you all have pointed out, and I have admitted, there is currently no evidence to suggest that Bush engaged in surveillance for any reason other than to prevent terrorism. My only argument, which has manifested itself in many ways (from technical arguments about the details in FISA to broader statements about Constitutional powers), is that under the current scenario, Bush—or any future President—could so very easily abuse such surveillance powers. The fact that you all are so frightened of terrorism that you refuse and cannot see this is telling.
I also find it telling, that Charlie (CO)—who I’ve enjoyed debating with over the past few days, and who doesn’t reach for invective as quickly as some others of you do—didn’t address my third point above, which is that Jeff has assiduously avoided taking positions on very reasonable hypotheticals because (a) there are no circumstances under which he will believe that Bush broke the law and (b) he doesn’t want to commit himself to a position on law-breaking hypothetical X so that he can adjust his arguments if and when X is shown to be true. That’s his, and all of your, prerogative, but it makes for unconvincing legal argumentation.
I have lots of work to do this week, so I’m not sure how much I’ll be able to post. (I’m sure you’re all crying into your beers.) I do appreciate the legitimate disagreements and debate and I appreciate that some of you have not relentlessly hurled insults my way. In any event, it will be interesting to see how Congress responds to all this, and if it ever winds up in the courts, what they’ll say (I have my suspicions).
Later,
MF
– MF, you’re simply disembling in order to buttress your paranoia. The SC has on many occasions in the past, already ruled on Article II conflicts when they occured. Moreover they’ve always found in favor of the CIC, based on the war powers act given to the executive when Congress votes to go to war. This wouldn’t even be up for discussion if war would have been declared officially. That there were pertinant reasons not to do so just gives the Libertarian gadflys fodder for the mill, and a chance to engage in their favorite pasttime – screeds about the terrible proposition that our Presidents are all a bunch of willey potential dictators that would jump at the opportunity to enslave us.
– Your position begs so many issues and so much of reality, ignoring the prodigious volume of safeguards and endless checks and balances that are in place, its simply a waste of time to debate you. I view your franetic, the sky may be falling bleating, as not much different from the armagedden fear mongers preaching on street corners.
– The truth is, the desperate, powerless Dems, will do anything to be involved. Even contrive phoney Constitution crisies, just to have a voice in things. Problem is, every position you take lately hardens your adversarial stance with mainstream America, and pushes you further into the political wilderness. Maybe its all you’ve got, but I personally do not envy your plite.
– That you’re forced into this position to have something negative to claim about the administration is one thing. That you think anyone over the age of 10 doesn’t know thats the whole basis to your actions speaks badly too your maturity and disrespect for the electorate in general.
TW: And with that, unless you can come up with something better than unbridled cynisism, I’m through with this. Set, point, and match…..
– Point, set, and match – and plight – PIMF
TW: When all you have is sour grapes, make faces and screech a lot. Just maybe some will believe you…..
I didn’t? Damn, I thought I’d pretty clearly addressed it.
MF- have you seen this (expanding on a point Robin Roberts made a few days ago)
via Andy McCarthy:
…Supreme Court analyzed the matter nearly three decades ago in Smith v. Maryland (1979):
MayBee —
I did catch that McCarthy post on NRO, and for a Fourth Amendment analysis it makes plenty of sense (although I might make the argument that an expectation of privacy is unreasonable viz. the private phone company who you’re paying to route your calls but reasonable viz. your government who you don’t want snooping; although I’m not sure I buy my own argument there).
However, we’re dealing with FISA, not the Fourth Amendment. And notwithstanding all the other arguments people have made about how the NSA intercepts [purportedly] don’t fall within FISA’s techincal definition of “electronic surveillance,” this argument—that the mere collection of information like whose number is being called, when, and for how long isn’t regulated by FISA—doesn’t fly. As I’ve noted at least twice before (in other threads on this site), even collecting information “concerning…the existence” of the targeted communication is regulated by FISA per sections 1801(f)(1) and 1801(n).
Certainly, even if under Smith a person has no reasonable expectation of privacy with respect to the number called, when it was called, and how long the call lasted for Fourth Amendment purposes, Congress clearly stated that for the purposes of FISA, even collection of that measely information was subject to its restrictions. And before anyone says that the lack of a Fourth Amendment problem vitiates the section 1801(f)(1) requirement of a “reasonable expectation of privacy”—no, it doesn’t, because (a) that would render the term “existence” in 1801(n) meaningless, which no court would do in interpreting the statute, and (b) the expectation of privacy must refer to the circumstances in which the communication as a whole is made, so as to not run into the problem described in (a).
Anyway, that’s how I read it. I know you’ll all disagree. So go ahead and call me a posturing pointy-headed terrorist-coddling dissembling SOB now.
I was going to go back and cover a couple of things, but frankly, MF, you’ve made it pretty clear we’ve reached the end of rational disputation. I will say my comment above was probably too subtle, so let me restate it: I thought I’d clearly addressed your point by illustrating that the ad hominem circumstantial you use was in fact fallacious — as well as kind of childish — and could with equal validity be applied to your argument.
That degree of validity being “none”, just to make sure I’m not still being too subtle.
It is kind of interesting to see you throw in that ad misericordiam there though: one almost never sees the “appeal to pity” used in quite so blatant a fashion.
I’ve got no doubt that you’re an effective advocate; your debating tricks are very strong.
MF-
I don’t believe I’ve called you a pointy-headed anything.
I do believe it is folly to imagine Congress meant the FISA laws to grant MORE privacy to international communication of US persons suspected of communicating with terrorists than the Supreme court said existed for US citizens having completely non-suspect conversations.
However, it all goes to the same point for me. There is obviously enough legal grey area that the leaker COULD NOT HAVE KNOWN the program was illegal. At most, they could have suspected it was illegal. At worst, they disagreed with it for personal reasons. They did not go through the proper channels to determine if it was legal, instead they acted as lawyer, judge, jury and executioner by going public to an author that was to benefit financially by putting it in a book.
And I don’t want security decsions made for me by people with a book to sell. Do you?