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Meet the New Year; Same as the Old Year

Amazingly, civil rights attorney Glenn Greenwald rings in the new year by continuing his dogged begging of the NSA “domestic spying” question, yet again imputing to “Bush supporters” the kind of bad faith he seems determined to practice in his own lengthy posts—irrespective of the number of times those of us who support the program attempt to set the record straight.

For instance, here’s how he characterizes my latest post on the subject, which post points out how the Washington Post framed a similar story on NSA warrantless intel gathering over a decade ago (and under a Democratic administration) quite differently than it has this time out—as well as how critics of the program are intentionally mischaracterizing the arguments being offered by the program’s defenders in order to avoid having to engage us on our actual points (which include, among other things, the physical location of the intercept, the method of intelligence gathering, and the definition of a “particular US person,” along with an acknowledgment that foreign intel requires that only one end of the connection take place outside the country):

There will, of course, continue to be those shrill voices whose reverence for George Bush and belief in his infallibility really is the stuff of a creepy personality cult, to the point where they actually believe that when a newspaper reports on illegal behavior by Bush officials, the real outrage is that the newspaper is acting seditiously and the paper and their sources should be punished as criminals. It’s the same mentality driving those who still insist that there really were WMDs in Iraq. Tbogg begins the New Year with a thorough examination of this genuinely disturbing/disturbed mentality.

Of course, as I’ve argued rather consistently, I don’t believe that the President has broken the law, which makes the charge that I am more interested in demonizing brave whistleblower(s) and their media allies who’ve shown a willingness to speak Truth to Power than I am in holding to account an inveterate trampler of the Constitution who wishes to institute a theocratic police state wherein dissent is permanently chilled, rather obviously moot—and rather pointedly disingenuous, to boot.

To be absolutely clear, I hold the leaker(s) and the media to account for the following reasons:  1) from what we know of the program thus far, there is absolutely no compelling evidence that the President has acted illegally¹; in fact, even in the realm of the hypothetical (which is where critics like Greenwald continue to fight these legal battles), the administration is, at the very least, able to contend (forcefully, by some readings) that they have acted in a way that is both constitutionally and statutorily permissable; 2) the leaker(s) of the program have broken the law and have damaged national security; 3) the President and members of his cabinet took the unprecedented step of appealing personally to the NYT in order to convince them that revealing information about the program would damage national security; and 4) the media not only chose to disregard the admninistration’s admonitions and pleadings, but they further went out fo their way to frame the story in a way they felt would do the most damage to the administration (“domestic spying” rather than “foreign intel gathering”), and to release it at a time where its effect would be most clearly demonstrable—even though under similar circumstances in the early 90s, they framed the story quite differently.

Tbogg, one the left’s more reliable hatchetboys, has suggested that in my willingness to question the motives of an openly adversarial press I am necessarily more concerned with a fidelity to George Bush than I am with protecting the Constitution (in particular, the first amendment); but in his haste to cast me as a blindly loyal Bush apologist, Tbogg betrays his own slavish loyalties to an elite media and progressive political culture that see themselves as the only proper authors of public discourse.

To Tbogg’s way of thinking, a “free” press is a press whose authority to take facts and arrange them in such a way that even the rubes in flyover country learn the “appropriate” lessons, is somehow ontologically sacrosant—a position that, it seems to me, completely perverts the first amendment, especially inasmuch as it suggests that, all speech being free and equal, speech that points out the biases and advocacy of a purportedly “objective” press or expresses outrage at the leaking of state secrets is less equal than speech that criticizes the government (which is granted a special de facto degree of self-satisfied and self-righteous patriotism). 

For a democracy to function properly, however, our media is charged—for good reason—with presenting us facts dispassionately and in a their proper context(s) (or at the very least, signalling its biases up front) so that we can draw from those facts our own conclusions and then debate the public policy questions that arise from consideration of all the available information.  Otherwise, in their advocacy, they have arrogantly and presumptuously assumed one side or another in the rhetorical wars, and in so doing have violated the public trust we have granted them by framing the story in way they believe best suits our understanding.  And in the current political climate, it is my contention—and I’m hardly alone in suggesting this—that the press has quite obviously chosen a particular foreign policy position and is using its public platform to agitate for that agenda, all while maintaining that it is a disinterested party.  That is, it has appointed itself as a co-equal branch of the government, one that lists decidedly left.

Which is, of course, what I meant when I wrote that “attempts by an adversarial press to supercede their mandate and actively work against a sitting administration while claiming neutrality and pretending to objectivity should have consequences”—a point that I would have thought was quite clear, but one that Tbogg seizes upon in order to affect his bemused and slightly worldweary resolve to continue battling nascent fascists for the sanctity of the Constitution and our collective civil liberties (which would seem, from what I can make of some of the arguments I’ve read, to include extending fourth Amendment protections to Al Qaeda members).

Just because Tbogg and his fellow travelers in the legacy media don’t believe we’re truly at war doesn’t mean we aren’t. And so long as the press acts as if their own studied assumption is objectively true (and consequently insists on running its foreign policy stories through that objectively faulty filter), it is incumbent upon those of us who do believe we are at war to point out that it is they — and not us—who continue to act in bad faith.

****

(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.)

****

¹ To anticipate several questions, I’ll note here that the administration does not wish to give away any more than it has to about the methodology involved, and so has asserted its legal authority on both constitutional and statutory grounds, without any indication that it has engaged in any “wiretapping” of particular US persons (who are the established target) without a warrant; in fact, it has asserted the opposite, as I’ve noted on several occasions. Which makes questions about why Bush didn’t use the 72 hour FISA window moot [see update 2 of the linked post].  In instances where warrants were required under the DoJ / NSA / DoD reading of the FISA statutes, it is quite possible those warrants were applied for and granted.  That Bush is now asserting certain controversial broad authorities doesn’t mean he has found it necessary to act on those hypotheticals that are driving all these brand new civil liberties absolutists to distraction.  See also, here.

100 Replies to “Meet the New Year; Same as the Old Year”

  1. actus says:

    Of course, as I’ve argued rather consistently, I don’t believe that the President has broken the law

    Its unclear from that post on what you rely. Do you believe that FISA was followed? Do you believe the AUMF (which you say is ‘not law,’ for some reason) overrides FISA—ie, it allows the president to ignore the prohibitions of FISA? or do you believe the president just has article II powers to override FISA/Congress in this case?

  2. Salt Lick says:

    Actually, I laughed when I started seeing those “fidelity to Bush” and “reverence for Bush” lines. Most of the Left just can’t comprehend an honest disagreement with themselves, hence opinions different from theirs must be attributed to a moral failing in their opponent.

    Similiarly, this morning on Fox News Sunday Juan Williams said he believed one reason we haven’t seen another act of terror on the U.S. mainland is that Bush has probably overstated the threat. Then Williams undercut his own opinion by saying there was no way to actually judge the extent of the threat because Bush won’t let us see the intelligence.

  3. ExRat says:

    Right on, Jeff! The one question that hasn’t been asked anywhere near loudly or often enough is, who the hell voted to give the editors of the New York Times the authority to overrule the President in determining which information is and is not necessary to be kept secret in the interests of national security? I sure didn’t. Talk about conflict of interest … the main interest of the New York Times, just like any other business, is to make money, and they’re hurting. So they decide to boost circulation by printing a story that any thinking person who takes the time to analyze it can see is harmful to the security of the country and each and every one of its citizens, including said editors.

    I can’t think of a better example than the NSA story why the media shouldn’t have a legal privilege not to disclose sources of information. The media are fond of trumpeting their special status as protectors of the public’s “right to know” but they sure don’t pay much attention to the notion that their “special status” imposes on them a “special responsibility” to be both fair and judicious in determining what to make public.

    You’re right that the NYT and its ilk refuse to believe we’re in a war, and that’s why they consistently frame the issues as if the whole problem were a criminal matter. Maybe they’ll wake up when the next attack reduces 229 West 43rd St.  to a smoking pile of rubble.

  4. MayBee says:

    Isn’t Greenwald a constitutional lawyer? Well, what do we need constitutional lawyers for if a newpaper editor can look at something and know, on the face of it, that it is illegal and/or unconstitutional?  Is it really so simple?  Bill Keller decided it seemed illegal enough to print… so that’s good enough for us?

    That is, it has appointed itself as a co-equal branch of the government,

    You’ve got that right, Jeff.  An unelected, unbound by any certifying board, secretive of sources (we keep it secret to protect your right to know!), unaccountable, undemocratic co-equal branch of government.  Well, actually not co-equal because they don’t want to be held by any legal checks and balances.

  5. Actus, I think that’s all covered at length down thread.  Not speaking for Jeff but my own understanding, I’d say:

    (1) contrary to the general framing in the legacy press, there is no evidence that the NSA has been purposefully intercepting any communications that don’t cross the border.  In fact, I was just looking back (after hearing Bush’s comments today) and I don’t think there’s any evidence that NSA has intercepted any communications originating inside the US.

    (2) As a consequence, and because it’s been collection of intelligence rather than evidence, it follows that it’s clearly within the prerogatives of the Presidency as asserted by Carter, Reagan, Bush pére, and Clinton, and affirmed by a number of cases that we’ve cited at length in previous threads.

    (3) If, alternatively, we consider the “Authorization for the Use of military Force”, it would appear that either that authorization includes the collection of intelligence, as has been the practice in warfare since Ugg the Caveman hid in the bushes to watch the other tribe, or it puts the President in the absurd position of being permitted to order that agent of al Qaeda in the theater of operations can be killed, but can’t be intercepted if the endpoint of their communications is within the continental US.

    (4) If, in a third alternative, we consider the terms of 50 USC Chapter 36 Subsection I (§1801 et seq), it would appear that any argument for violation of the statute would stand or fall on the interpretation of §1801(a)(1-3) and 1801(b).  The one apparently apposite precedent would be the so-called “Sands decision”, which held that al Qaeda was a foreign power under 1801(a); it further held that while intelligence collected couldn’t be used as evidence, the intelligence collection itself was permitted.

    If, in fact, the Administration was at least congizant of this third alternative, or if we simply assume that they want to be consistent with both the spirit and letter of the statute cited, they could be expected to act by notifying the appropriate members of Congress under the Act (ie, the leadership and the members of the Select Committees), and by proceding with FISA warrants when intercepts lead to a “US person” of interest, and minimization procedures.  And, in fact, we find that even the New York Times and the Democrat leadership admit that they were notified.

    (I’ll grant that some members of the Democrat leadership have now said they didn’t understand, or were confused; on that point, I just wish they’d make up their minds if the Administration is composed of fools, or wizards.)

    I will say, though, given the number of column inches Jeff has spent on this, and the extensive argument he’s presented in something like a dozen postings, the statement that ”ts unclear from that post on what [justification] you rely” seems disingenuous in the extreme.

    And pretty fucking stoopid, besides.

    Not to put to fine a point on it.

  6. corvan says:

    The amazing thing about this is that the press seems determined to make itself as irrelevant as the Democratic party.  Well, if that’s what they want more power to them. 

    However, I would point out that by characterizing those of us who happen to be able to read and think without fantasizing about the bloody demise of Bush-Cheney-Haliburton as blind followers of evil they hurt their cuase.  Not only becuase they sound bug-fuck insane, but because they’re not telling the truth.

    It’s the same problem they run into when they defend Saddam Hussein, and when they presented Iraq as a peaceful, wonderful place until coalition troops darkened its door.  That level of dishonesty makes all their other arguments…well, crappy.  I think they know this in sone instinctual way, deep inside the primitive, lizard portion of their brains.  That’s why they cover their ears and scream louder rather than making even a half asssed attempt to acquaint themselves with the facts.

    At this point attmepting to convince them of thier silliness is all but useless.  However, pointing out thier lunacy to sane people (swing voters) is a necessity.

    I will offer them one some advice, though, I am under no illusion that they will take it.  If you want the rest of us to stop treating you like you are in need of electro-shock therapy you will have to stop acting crazy.

    After you stop acting crazy you will have to get your facts straight.  After that, may you can have some say in the governance of the nation.

    Until then, well…be nice to your nurses and take your medication when you’re supposed to.  I’m hoping for the best for you.

  7. MayBee says:

    Well, if the press doesn’t feel like being introspective, they can always just publish another “Bush in the Bubble” story.

  8. actus says:

    I will say, though, given the number of column inches Jeff has spent on this, and the extensive argument he’s presented in something like a dozen postings, the statement that “ts unclear from that post on what [justification] you rely” seems disingenuous in the extreme.

    Well its unclear because they’re all in there but in a bit of a jumble, and while it may sound nice to quote a 4th amendment case it doesn’t, for example, resolve the separation of powers issue.

    You’ve cleared it up by saying that its all three: FISA was followed, the AUMF overrode FISA, and Article II allows the president to ignore anything that congress puts up anyhoo.

    I haven’t yet run into someone that says all that. Not even Gonzales relies on FISA, for example. I’ve heard him trying to spin this on the AUMF angle.

  9. Nishizono Shinji says:

    But Jeff, if you say something long enough and loud enough, it becomes true.  The media knows this.  The biomechanics of belief.

    At this point volume and persistance is all they’ve got.

    The greek word for this is katalepsis.

    Trial lawyers use it in jury trials to embed arguments in the jury’s minds, even tho the argument is overruled, it can’t really be erased.

  10. Sortelli says:

    Not even Gonzales relies on FISA, for example. I’ve heard him trying to spin this on the AUMF angle.

    That doesn’t logically invalidate anything Charlie posted, as much as you wish it to be otherwise.

  11. Dear sweet Lord in heaven, I don’t want to encounter the moronically unfunny tbogg here.  If ever there were a lunatic left poster-child, it’s that.  Is it really worth the pixels?

  12. actus says:

    That doesn’t logically invalidate anything Charlie posted, as much as you wish it to be otherwise.

    Oh no. It just makes it more surprising, and why I wouldn’t immediately get that he was claiming all three.

    What would invalidate his post is things like what Orrin Kerr and Dan Solove write.

  13. Antimedia says:

    Jeff, I admire your persistence.  Frankly, it’s wearying (to say the least) to have to constantly destroy strawmen and faulty logic when the left neither cares about the facts nor about cogent argument.

    Anyone who is openminded and takes the time to read the arguments on both sides (and here I refer to arguments, not the baloney the Glenn Greenwald’s spew) can clearly see that, at a minimun, the President has a strong legal case.  I would push it farther and say that FISA, so far as it attempts to apply its strictures to foreign survellance is clearly unconstitutional.  One can only hope that it will wend its way through the courts and be found so, repeatedly, much to the consternation of the “elites” who scoff at us “unwashed”.

  14. Greenwald’s postings are more noteworthy for his intentional misrepresentations than for any particular argument of his.

  15. ed says:

    Hmmm.

    @ actus

    Do you really know what FISA is all about?  If you think you do then please explain in detail what the procedural steps are for NSA to comply with FISA.

    Otherwise you are talking out of your ass.

  16. MF says:

    If this NSA program was completely on the up-and-up legally, then why did Deputy AG Comey refuse to re-authorize it in summer 2004, and why did [an ill] John Ashcroft refuse to overrule that decision? 

    And what bearing does the fact that the program was halted and then revamped around that time, in part by adding a probable cause checklist requirement, on the legality and propriety of the program prior to then?

    And, I’ll post this question once again since nobody answered it last time:

    If Congress amended the AUMF to include language stating “nothing in this force authorization shall be construed to give the Executive authority to conduct electronic surveillance of communications involving US persons (as defined by FISA) in the United States without a warrant or court order,” would the President still be able to authorize and continue using the NSA program?

  17. Antimedia says:

    MF – first of all, the AUMF was never amended to include that language.  If you believe it was, then provide the proof.  You can read the AUMF online.  It doesn’t even mention FISA.  I suppose you’re getting that quote from the media, who are quoting the former Senator from South Dakota, Tom Daschle, who probably made it up.

    As to your first question, it’s interesting to note that John Ashcroft did, in fact, reauthorize the program, after some changes were made.  Does that mean that the President’s critics will now at least admit that it must have been legal after the reauthorization?  Otherwise, stressing that point is moot, since you don’t believe any of it was legal.

    The fact is, the President has the power to surveill foreign agents without a warrant both inside and outside the United States, notwithstanding FISA.  Furthermore, Jeff has more than ably explained the issues at law as well as precedents that should convince anyone that nothing illegal was done.

  18. Jeff Goldstein says:

    Gary Schmitt has an interesting piece in the latest Weekly Standard.  A bit that I found apt:

    One irony of today’s debate is that so many liberals are now defending FISA. Previously, a common complaint from the ACLU and others was that the secret federal court that issues warrants for foreign intelligence surveillance in this country had become a “rubber stamp” for the executive branch. Out of the thousands of applications put forward by the Department of Justice to the panel over the years, only a handful had ever been rejected. Instead of a check on executive authority, the court had become complicit in its activities-or so it was said.

    And to a certain extent that has been the case. Yet the reason for the high percentage of approvals has less to do with deference to executive judgment

    than with FISA’s standard for obtaining a warrant when it involves surveillance of an American citizen or an alien residing legally in the United States. Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the “facts and circumstances relied upon . . . to justify [the attorney general’s] belief that the target is an agent of a foreign power” or “engages . . . in international terrorism.” And the FISA judges can only grant the warrant when “there is probable cause to believe that the target” is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence.

    This shouldn’t be news. The inability of the FBI to aggressively pursue suspected foreign agents on U.S. soil was well aired in the 9/11 post–mortems, especially the notorious case of the “20th hijacker,” French Moroccan Zacarias Moussaoui. His laptop was in the possession of FBI agents in Minneapolis in August 2001 but, for want of a warrant, was not searched before 9/11.

    […]

    More broadly, the law rests on a shallow understanding of the Constitution’s system of separated powers. FISA’s supporters believe that life without the law would lead to unfettered executive power and violate the system’s guiding principle of “checks and balances.” What the Constitution demands, in their view, is a two–key approach to public authority: No branch gets to act in key instances without concurrent approval from a second branch.

    That approach, however, conflates the Constitution’s scheme of “checks and balances” with its more fundamental system of separated powers. Although some checks do exist-like the president’s qualified veto over legislation, or the Senate’s role in confirming nominations-they are not the norms for government action but the exceptions.

    Far more common is for the president, Congress, and the courts to do their own thing, each interacting with the others indirectly and rarely concurrently.

    And that is the way it was meant to be. Justice Brandeis’s famous line that the “doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power” is at best a half truth. After a decade of living under the Articles of Confederation, and seeing state legislatures run roughshod over weak executives, the Constitution’s drafters wanted a system of separated powers that would free up the executive, not tie it down. By the time they convened in Philadelphia, the bias against the executive that arose from the fight with the British crown was pretty well gone. So much so that The Federalist would argue during the ratification debate that “energy in the executive is a leading character in the definition of good government” and that “decision, activity, secrecy and dispatch” were qualities only a unitary and independent executive could provide.

    It’s no surprise then that it is precisely these qualities that we see in President Bush’s decision to go around FISA in the wake of 9/11 and to order the National Security Agency to conduct warrantless surveillance of emails and calls going back and forth from suspected al Qaeda operatives abroad to the United States, and vice versa.

    Some critics of the president’s actions have argued that he should have asked Congress to amend FISA to meet these new circumstances. Leave aside the practicalities of getting legislation of this sort passed in a timely manner, and without the underlying rationale leaking. This president (or any president worth his salt) would only accept legislation that either confirmed his discretionary authority, or reduced the standard for getting a warrant to some minimal requirement that the collection be “reasonably” connected to the country’s foreign intelligence needs.

    But if legislation of that type were passed, what role would the FISA court actually play? Either it really would become a rubber stamp, or it would become a surrogate executive confirming or denying a warrant based on reasoning that isn’t, at bottom, judicial. Do we really want judges to play the role of second–guessers of executive branch decisions, substituting their own judgment on matters of national security for that of the president and his duly appointed subordinates?

  19. MF says:

    Antimedia:

    First of all, please read my comments more carefully if you’re going to respond.  I never claimed that Congress had amended the AUMF—I was simply asking you all to apply your legal theory of Presidential power to a hypothetical.  Again: if Congress were to amend the AUMF in the manner above, would the President still be able to authorize the NSA program?

    I’m also not arguing that the objections of Comey (or Ashcroft), or their later decision to approve of the program, have any dispositive bearing on the issues.  I am, however, saying that the objections of Comey (or Ashcroft) do provide some evidence that the legal basis for this program is not as cut-and-dried as you (or Jeff) would have us believe.

    And, although you emphasize the fact that the program was revamped before eventually being re-authorized, you don’t address the second, corollary question whether that means that the program prior to that point had legal infirmities, or whether it has any bearing on the issues at all.

    The fact is, the President has the power to surveill foreign agents without a warrant both inside and outside the United States, notwithstanding FISA.

    If a foreign agent is also a US citizen inside the US, a FISA court order (i.e., warrant) is needed.  That’s the whole point of the law—to prevent warrantless surveillance of US persons in the US under the mantle of national security.

  20. Well its unclear because they’re all in there but in a bit of a jumble, and while it may sound nice to quote a 4th amendment case it doesn’t, for example, resolve the separation of powers issue.

    I didn’t have any trouble writing a four paragraph summary.  This doesn’t mean the arguments are correct, but at this point to argue that they’re unclear or that you don’t understand them is primarily asserting your intellectual insufficiency.

    Maybe you need new glasses.  Clear ones.

    You’ve cleared it up by saying that its all three: FISA was followed, the AUMF overrode FISA, and Article II allows the president to ignore anything that congress puts up anyhoo

    .

    First, I’m arguing in the alternative, saying that any one of those arguments might be dispositive.  Secondly, I’m summarizing several arguments made by different people.  Third, the notion that Article II allows the President to do anything is a straw man; it’s clear, for example, that Article II doesn’t allow the President to introduce a spending bill, since that’s a power allocated to the House under Article I Section 7. 

    Nice try, but I caught you.

    I haven’t yet run into someone that says all that. Not even Gonzales relies on FISA, for example. I’ve heard him trying to spin this on the AUMF angle.

    As I was saying to MF in previous threads, it’s fallacious to assume that just because someone doesn’t use a particular argument, that argument must not have value.  Gonzales — not to mention anyone else who comments on this — isn’t obliged to present to you every argument they might thing of interest.

  21. What would invalidate his post is things like what Orrin Kerr and Dan Solove write.

    Only if they successfully argued the contrary on all three.  Like in mathematical logic, the proposition holds in a disjunction (“the alternative”) is any one of the terms hold.  Unlike mathematical logic, simply making a counter-argument isn’t sufficient; Kerr’s counterargument could be wrong, and, eg, John Schmidt and Cass Sunstein’s arguments could be correct.

  22. If this NSA program was completely on the up-and-up legally, then why did Deputy AG Comey refuse to re-authorize it in summer 2004, and why did [an ill] John Ashcroft refuse to overrule that decision?

    Another false consequence, MF.  Especially since the Times is reporting that after the program was halted and audited, it was continued under Comey and Ashcroft.

  23. Again: if Congress were to amend the AUMF in the manner above, would the President still be able to authorize the NSA program?

    It would appear that this would invalidate neither the Article II nor the AUMF arguments.

  24. ss says:

    Good lord, Jeff. You sure don’t act like someone who’s lost faith in humanity. What’s wrong with you? Reading something of this quality exhausts me, due to the evident exertion involved.

  25. … sorry to do this in two posts, MF, but let me post a counter-hypothetical.  The Constitution says (Article II Section 1) that “The executive Power shall be vested in a President of the United States of America.”

    Can the Congress pass a law — not a Constitional Amendment, just a law — that removes the executive power from the President and puts in collectively in the leadership of the House?

  26. Antimedia says:

    MF, forgive me for misunderstanding your question.  I didn’t realize you were posing a hypothetical.

    If Congress amended the AUMF to include the statement, then the President can not argue that the AUMF gave him the power to do what he authorized.

    However, I think FISA is a usurpation of executive power and therefore unconstitutional, and that should be the crux of the President’s argument.  And I think he would win in court with that argument.

    Article II, Section 1 makes the President Commander-in-Chief of the US Armed Forces.  Congress has no power to tell the President how to conduct a war or what means or methods he can use to do so.  The only check they have on his power as CinC is the power of the purse (not to be scoffed at, mind you.)

    If Congress felt the NSA was “rogue” they could simply refuse to fund it or reduce its funding until changes were made that they felt were satisfactory.  If they disagree that we need more bombers, they can refuse to fund the program.  So Congress is not without power to get the President to see things their way when it comes to the armed forces.

    With regard to surveiling American citizens (or more correctly, according to FISA, “United States persons”), the Fourth, Fifth and Seventh Amendments should provide all the protection a citizen needs.  FISA is a political instrument, nothing more.  It doesn’t provide any additional protections to US citizens.  It’s simply Congress’ way of saying, “See, we did something about it.” It’s much easier to do that than to cut programs that cost jobs in your district because you disagree with the President.

    With regard to the objections of the AG and the adjustments to the program, we don’t have enough information to know what that means.  Were they tactical?  Strategic?  Legal?  Functional?

    Besides, at this point I don’t trust much of anything I read along these lines, because the media is obviously not doing any fact checking these days at all.  They just swallow whatever line some anonymous fool tells them, if it will create controversy.

  27. MF says:

    Charlie (CO):

    I realize that, but you still leave the two resulting questions unanswered:

    1) What do the audit and procedural changes that occurred in the summer of 2004 suggest re whether the program prior to that time was free from legal infirmities?

    2) Does the fact that folks like Comey and Ashcroft had reservations about the legal authority for the program at all muddy or undermine Jeff’s arguments (a) that the program was and is clearly, inarguably legal and (b) that critics of Bush and the program are acting per se unreasonably and out of Bush-spite rather than a genuine skepticism about the program itself or its legality?

    And do you have an answer to my question about the hypothetically amended AUMF?

  28. If a foreign agent is also a US citizen inside the US, a FISA court order (i.e., warrant) is needed.  That’s the whole point of the law—to prevent warrantless surveillance of US persons in the US under the mantle of national security.

    I agree that’s a central question, but you’re assuming that neither the Article II nor the AUMF arguments hold; if, in particular, the Article II argument holds (as was asserted by Carter, Reagan, Bush_0, and Clinton, and seems supported by some of the case law) then all it means is that restriction under FISA is unconstitutional and has no force.

  29. Greenwald’s postings are more noteworthy for his intentional misrepresentations than for any particular argument of his.

    Robin, to be fair, that’s an attorney’s job: to advocate as best he can for the position he wants to prevail.

    That’s why we logicians are superior to (ick) lawyers.

    Plato was right.

  30. MF says:

    Charlie:

    Sorry, just now saw that you [kind of] answered my question.  So I’ll address that and also respond to your proposed question.

    First, I’m not sure you can plausibly say the the AUMF argument is still valid to justify warrantless surveillance if the amended AUMF itself explicitly states that such surveillance cannot be conducted.

    Second, to answer your question, Congress obviously could not pass a valid law giving itself Commander in Chief powers. 

    Seems you and Antimedia both believe that the Article II argument stands.  So I’ll pose a second question: If Congress repealed the AUMF altogether, could the President still authorize domestic warrantless surveillance of US persons?

  31. Sorry, MF, we’re cross posting.

    1) What do the audit and procedural changes that occurred in the summer of 2004 suggest re whether the program prior to that time was free from legal infirmities?

    It suggests it either was free of infirmities, or it had infirmaties which were remedied, after which it either was then free of infirmaties, or it was not.  Can’t conclude anything from the evidence presented except that the issue was discussed, evaluated, and taken into account.

    2) Does the fact that folks like Comey and Ashcroft had reservations about the legal authority for the program at all muddy or undermine Jeff’s arguments (a) that the program was and is clearly, inarguably legal and (b) that critics of Bush and the program are acting per se unreasonably and out of Bush-spite rather than a genuine skepticism about the program itself or its legality?

    Without knowing more, we can’t conclude anything one way or the other.  But you pose two straw men: first, that Jeff’s position is that the program is “clearly, inarguably legal” when Jeff has clearly stated and pointed out (while, in general, arguing to refute) the arguments that it was illegal.  I think it would be much more fair, and true to the argument, to say “Jeff believes there are conclusive arguments on which basis he concludes the program is legal.” Second, that Jeff asserts “critics” (by which you appear to mean “all critics”) are “per se” acting unreasonably and out of Bush-hatred.  Noting that Jeff thinks a specific critic is acting in bad faith doesn’t allow the inference that all such critics are acting in bad faith.

  32. Antimedia says:

    MF, don’t switch horses in midstream.  We’re discussing the President’s powers as CinC and surveillance in the context of foreign enemies.  The President is never empowered to authorize domestic surveillance without a warrant.  That should be clear to anyone who understands the Constitution.

    The media have tried to portray the NSA program as “domestic spying” when it is clearly not, and you appear to be doing the same thing.

    If, in the context of foreign surveillance, and American citizen is implicated and if the government wants to purse an investigation and possible indictment of the American citizen, then they must comply with the Constitution’s requirements for warrants and probably cause and the like.

    You must separate law enforcement activity from military activity.  The NSA doesn’t have the power to investigate or arrest anyone.

  33. First, I’m not sure you can plausibly say the the AUMF argument is still valid to justify warrantless surveillance if the amended AUMF itself explicitly states that such surveillance cannot be conducted.

    Right, but then I just noted that the Article II argument might still prevail.

    Second, to answer your question, Congress obviously could not pass a valid law giving itself Commander in Chief powers.

    In that case, we come back around to the question of whether the collection of foreign intelligence is included under the executive power as CIC.  If it does, and since it would come from the same section of the Constitution, it would appear to say Congress can’t pass a valid law restricting those powers.  (By the way, I said “executive powers” Art II sec 1, not “Commander in Chief” Art II sec 2.  But the argument is, if anything, strong w.r.t. the CIC powers.)

    Seems you and Antimedia both believe that the Article II argument stands.

    That’s one of those places where the technicalities of the law come in.  I’d go so far as to say that each of the three arguments seems pretty convincing, and that assuming the contrary to the Art II argument seems to lead to an absurdity.

    So I’ll pose a second question: If Congress repealed the AUMF altogether, could the President still authorize domestic warrantless surveillance of US persons?

    It isn’t clear to me that that’s actually at issue: at least some of the references that have come by seem to hold that it’s only “domestic” surveillance if it doesn’t cross a border.  Everything I’ve seen says that only international communications have been targeted, in which case the question is vacuous.  In other words, I’d like to see an existence proof.

    If we assume that we’re talking about “domestic” surveillance in the more restrictive sense, then I’d say “no, but.” I’d cut a fair bit of slack for surveillance, but exclude evidence obtained by that surveillance from court unless it leads to the reasonable belief that the “US person” was acting as an agent of a foreign power.

  34. Darleen says:

    I am in awe of Jeff’s patience in posting and reposting the facts of the case as we know it and direct, onpoint refutations of the perfidy of the Get.Bush.Under.Any.Circumstance ilk.

    The President framed the whole of the program quite directly today

    If somebody from al-Qaida is calling you, we’d like to know why.

    Not at all unreasonable. The pertinent question thus rises

    Why do the hysterics of the MSM and their acolytes and fellowtravelers think such a strategy is unreasonable?

    I approve of, support, and expect the FBI’s surveillance of the KKK, militia movements, Aryan Brotherhood, et al. When did Islamofascists and their supporters become the Left’s new pet?

  35. Jeff Goldstein says:

    Our old friend Azael (Hal from Hellblazer) is taking his banning well, I see.

    Man, do I love messing with that guy.

    RAGE AGAINST THE DYING OF THE LIGHT, HAL!  RAGE AGAINST PROTEIN WISDOM’S AUTHORITARIANISM!

  36. Darleen says:

    Sweet Jesus, Jeff, after about the umpteenth “bush is a fascist and his supporters too” offered up as biting and decisive repartee I need to go scrub my eyeballs

    and pour a really big drink

    I want to start some sort of charity to fund vasectomies and tubals for those ilk. They really can’t be allowed to reproduce.

  37. richard mcenroe says:

    Let’s just wiretap Greenwald.  You know<K/i> he just won’t be happy until he’s <i>sure

  38. Amish says:

    Bush and others seem to be having some kind of straw-man argument, today Bush said:

    Asked how he responds to Americans worried about violations of their privacy, he responded, “If somebody from al-Qaida is calling you, we’d like to know why…. I think most Americans understand the need to find out what the enemy’s thinking.”

    It obvious that we want to know what al-Quida is doing or saying. If we’re going to have an honest discussion about what Bush is doing, then you have to listen to what his critics are saying. Those critics include some promient conservatives including William Safire, Arlen Spector, and Chuck Hagel. The FISA court has been a relative rubber stamp for the last two administrations and when changes have been requested through Congress those changes have been made. Foreign spying/intercepts of communication are a given, no one on the left or center has a problems with that. Bush himself disagrees with Jeff, he has said that he is skirting the law and will continue to do so. The only jusification that he has sighted is the AUMF. As Daschle has recently wrote, Congress did not give him unlimited powers. The ISSUE is, why can’t he spy on suspected bad guys without breaking the law.

    The Supreme Court of the United States said this:

    [The Government’s position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

    Deputy Attorney General James B. Comey refused to authorize the domestic spying program.  If you recall, President Bush has repeatedly stated the program requires the authorization of the Attorney General and the White House counsel every 45 days or so. Bush went to Comey because Ashcroft was in the hospital. So when Jeff categoically states,”Of course, as I’ve argued rather consistently, I don’t believe that the President has broken the law..” On what basis could that be justified ?

    The argument that these matters are of such urgency that they can’t wait for FISA is pure bunk, the ability to “spy first, ask permission later” is already covered by FISA.  Geoffrey Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency. “Some legal questions are hard,” Stone said. “This one is not. The president’s authorizing of NSA to spy on Americans is blatantly unlawful and unconstitutional.” ( refering to warrantless eavesdropping)

    Case law from Hamdi</i<i>>[The Government’s position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

    Justice Jackson in his concurring opinion in Youngstown, supra, which both parties agree brings together as much combination of analysis and common sense as there is in this area, focused not on the “plenary and exclusive power of the President” but rather responded to a claim of virtually unlimited powers for the Executive:

    “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”

    Also see United States v. Midwest Oil, the POTUS is bound by the laws of Congress. If Bush and his supporters feel that they are not bound by the laws of Congress, then they need to make that argument to the Supreme Court. Even FISA Courts allow for appeal up to the Supreme Court.

    It cannot be said enough, we are a nation of laws, not a cult of personalities, we are not a mob nation whose opinions blow with the political winds.

    “This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States,” Bush said

  39. actus says:

    Jeff:

    Some critics of the president’s actions have argued that he should have asked Congress to amend FISA to meet these new circumstances. Leave aside the practicalities of getting legislation of this sort passed in a timely manner, and without the underlying rationale leaking.

    FISA was expanded and amended post 9/11.

    Do you really know what FISA is all about?  If you think you do then please explain in detail what the procedural steps are for NSA to comply with FISA.

    I know what its about. I don’t have my notes on it now. But I don’t think they include all the procedural details. Do I need to know those to know what its about? Or even to be able to pick between Jeff’s and Orrin Kerr’s explanations?

    Charlie:

    “ What would invalidate his post is things like what Orrin Kerr and Dan Solove write.”

    Only if they successfully argued the contrary on all three.

    They do.

  40. syn says:

    Maybe Liberals want Americans to be attacked so that Oliver Stone can make a movie, Barbara Streisand can sing her patriotic Marxists songs and Alec Baldwin can impeach Cheney?

    Hollywood rules the world and useful idiots follow.

    Who was it that said it was the poet who was the secret legislator?

  41. jim says:

    Yes, syn, I’m sure that’s the Liberal’s motivation. Two more crazy leftists came out today with the audacity to challenge Jeff’s proof that the Constitution guarantees unreasonable search and seizure: Richard Lugar and William Safire.

    Enough with the Clintonian arguments about which controlling legal authority allowed the Executive branch unchecked power to determine who should be spied upon. Conservatives used to have principles which were incompatible with unlimited government. Or at least they pretended to

  42. Darleen says:

    Let’s see

    Post 9/11 the Executive branch secures a Congressional mandate to use all necessary power against Islamist terrorists, all manner of legal vetting on a program that takes advantage of technology to gather intelligence (always in the Executive branch), briefs Congressional leaders on such a program on a regular basis, has the program reveiwed every 45 days

    …and the fucking BDS Islamist ass-kissers are still speaking in tongues about UNCHECKED power.

    Y’all might be in love with committing slow suicide via dhimmitude, but I’ll be DAMNED if you take me and mine with you. My patience is GONE with you 21st Century version of the American Bund.

    FUCK OFF.

  43. Actus: They do.

    I’m sorry, Actus, I wasn’t aware this had been adjudicated yet. 

    What you mean is “I believe them more than I believe Schmidt and Sunstein, but then I’m not a judge.”

    Unless you’re actually Scalia.

  44. MF says:

    Charlie (CO) et al.:

    Your explanations make sense from a purely logical standpoint—i.e., they’re reasonable –but I don’t think they state the law accurately.

    It isn’t clear to me that [warrantless domestic surveillance is] actually at issue: at least some of the references that have come by seem to hold that it’s only “domestic” surveillance if it doesn’t cross a border.  Everything I’ve seen says that only international communications have been targeted, in which case the question is vacuous.  In other words, I’d like to see an existence proof.

    First, despite Bush’s comments yesterday, both the Justice Dept. memo and a clarification issued by the White House make clear that the NSA is intercepting international calls to and from the U.S.  (The same article linked above makes this clear.)

    Second, the definition of regulated electronic surveillance of main interest to us is the one contained in FISA section 1801(f)(1)

    That definition does not require the interception to take place in the US, nor does it refer to “wire” communications.  So technical defenses based on those distinctions are not valid.  Also, under this definition, “electronic surveillance” means the acquisition of any information about even the existence of the communication.  So any record, even a temporary record, of something as minimal as the recipient’s phone number is still an interception/acquisition that is governed/prohibited by FISA.

    Another technical, definitional defense of the program is based on the requirement that the surveillance intentionally target a known, US person – e.g., some kind of mass data mining technique would not violate FISA.  I will admit of the possibility that this is at least part of the program.  But the DOJ states clearly that “[t]he NSA intercepts certain international communications into and out of the United States of people linked to Al Qaeda or an affiliated terrorist organization.” That surely seems like an admission that they have specifically targeted “people linked with Al Qaeda” et al.—that is, certain identified persons (I mean, if they’re not specifically targeting individuals, then how could they know that the intercepted communications are to/from “people linked with Al Qaeda”?  Even if the program is some sort of filter that looks for certain key words or call patterns, DOJ could not plausibly say that the intercepted communications are those of strictly persons linked to Al Qaeda et al., since naturally some (probably most) of the intercepts would result in false-positives.  Also, the program might also target only non-US persons—but, as some of you have pointed out in defense of the program—that would be the type of gaping hole that would make the program virtually worthless.

    So, the only possibility that 1801(f)(1) does not apply is if the intercepted communications are such that the US person involved does not have a “a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” This is the only technical definitional defense that might fly.  And arguments to this effect have been raised on this site and over in the comments on this post at Volokh.com by Prof. Kerr (which I see you’ve commented on).

    Now, Charlie, I know you’re big on the theory that all interceptions are being made by foreign governments (or at least I think you are, o let me know if you’re not).  But if the foreign governments at issue are doing what the US government cannot, by law, do, and at our direction (e.g., we provide them with a list of people to listen to, etc.), then the US government has no defense.  This is a common issue in criminal law.  If act X is illegal, and person A intends for person B to commit act X and sets B in motion (via payment, instruction, etc.) in the belief that B will commit act X, person A is as guilty of act X as person B is.  (That’s not a clean statement of the law, but it is essentially how the analysis works.)

    As far as a reasonable expectation of privacy goes, as Kerr points out, it’s not the analysis for the Fourth Amendment; rather, it’s the expectation that a reasonable person would have.  Certainly, when I called my brother in Bulgium during his abroad term, I reasonably expected the government not to listen to my calls. 

    And of course a warrant would be required to listen to such calls in the context of a criminal investigation.  If US Person A in Boston is calling B in London about a money laundering scheme, the FBI needs a warrant to tap A’s calls, whether they’re domestic or foreign.  There’s no exception in the FISA definition for calls that travel across national borders.

    Anyway, this is too long.  Let’s get some responses to this.

  45. Jeff Goldstein says:

    Yes, syn, I’m sure that’s the Liberal’s motivation. Two more crazy leftists came out today with the audacity to challenge Jeff’s proof that the Constitution guarantees unreasonable search and seizure.

    Jim begs the question without irony in a thread that specifically chides those who continue to beg the questions.

    Actus —

    You’re quoting Schmitt.  And he’s addressing critics who are NOW saying the President could have avoiding breaking the law by having FISA expanded under the PATRIOT act in such a way that they believe, in retrospect, would protect him against breaking the law—even though he insists he’s not breaking the law, and that the program is legal under a FISA exemption.  Read Schmitt’s entire piece.

    Again, we don’t know enough about the particulars of the program to make the kinds of charges many continue to make.  From what we know of the program, no laws were broken.

    Amish —

    I’ve dealt with every one of your arguments—several of which are simply wrong on the facts.  If you can’t be bothered to argue against what I’ve written, then I won’t be bothered to address your arguments yet again here.

  46. Jeff Goldstein says:

    Meanwhile, MF will keep massaging his hypotheticals until he can find one where the President has most certainly violated the law—if only in spirit—and will then will use said hypothetical to PROVE that we’re witnessing and IMPERIAL POWER GRAB, rather than a President using all the tools at his disposal—including signals intel—to protect the country from an enemy that likes to attack from within.

    It’s all a game to these people.

  47. jim says:

    No, Darleen, the islamofascists are not the left’s new pet. Lefties like William Safire’s new pet is the Constitution.

    Quit cowering in the corner demanding that Big Brother protect you and stand up for your Country’s principles. You Conservatives used to continually bray about how you held your principles dear; then you got frightened. New Conservative Mantra: Protect me and mine from any imaginary dhimmitude suicider and I will cheerfully give up my rights as an American.

  48. cloudy says:

    Actually, it kind of tips one’s hand a little when they complain about the length of a post on another website!.

    But let’s look a little more closely at all this protestation about the First Amendment and the [beware of code word for disobedient]”arrogant” press.

    Here are some snips about the relationship of the press to freedom.  Unlike the arcana of FISA, or of surveillance, this is an area I have studied, both from a legal and especially from a sociological standpoint.

    … a “free” press is a press whose authority to take facts and arrange them in such a way that even the rubes in flyover country learn the “appropriate” lessons, …

    <snip>

    …outrage at the leaking of state secrets is less equal than speech that criticizes the government (which is granted a special de facto degree of self-satisfied and self-righteous patriotism).

    <snip>

    … our media is charged — for good reason — with presenting us facts dispassionately and in a their proper context(s)

    <snip>

    … in their advocacy, they have arrogantly and presumptuously assumed one side or another in the rhetorical wars, and in so doing have violated the public trust we have granted them by framing the story in way they believe best suits our understanding.

    Now, one might be—subjectively—of the belief that press they consider “liberal” or “listing to the left”, but note the point here.  The “liberal” media have apparently no right, not just to report properly and legally classified information, but somehow no right to ‘mislead’ the public with their biases.  That is the distinct sense one gets from these passages.

    What is particularly odd is that these passages suggesting ‘arrogance’ on the part of the supposedly left-leaning press come from a column that is itself, (quite legitimately—I don’t dispute one’s right to be opinionated) a highly charged and partisan screed.

    A “free” press having the “authority” to “arrange facts”.  Yes, that’s what a free press does.  And in fact, in Jefferson’s day, the press was if anything far more partisan, leading him to devote some time in his second inaugural to the ‘artillery of the press’; the problem of not liking the criticism and the “bias” of the opposition is not new.  But Jefferson and those of his view, never questioned, even implicitly, as this clearly does, the right—morally, legally and professionally, but especially FULLY legally—of the press to indeed be a vocal and advocatory opposition, if they so choose. 

    Now, as for the “outrage at leaking state secrets” (note that the impropriety of the leaking is no more proven than the illegality of the program—both require meticulous review of the evidence), there is a huge difference between the attitude, no matter how snooty, self-satisfied and whatever other characterizations one might make that the liberals take towards the positions outlined here and the position of this column.  NO ONE that I know of has questioned (please correct me on this point if incorrect with the relevant passages) the RIGHT of free speech, of protein wisdom to say whatever they please about the liberal press.  They might condemn it as noxious and blindly partisan.  But the underpinning of much of the snippets I ferreted out implies something else entirely:

    ‘we RWers, we serve, but you liberals are “charged” [by whom?, by law?] with presenting the “facts” dispassionately (in the news sections) and “in … proper context”.  Well, the New York Times does report the ‘facts’ in a dispassionate tone, even if the reportage inevitably strikes many as slanted too far left or right, and in a context that their editors, in their professional judgment, consider best.  But who is to judge what is the “proper” context?  The problem is that you want the Grey Lady to be the National Review.  What is “proper context” for the New York Times might not be proper context for you.

    And this is key to the very ethos of a free press and a Constitutional, non-Tory system, one that <objective</b> standard by which to judge that they have failed to report matters with the proper loyalty in time of war that is the engine governing not only the First Amendment, but the kind of arena of the media to which it corresponds.

    Now comes the kicker—“they have arrogantly and presumptuously assumed one side or the other” (?)

    First of all, no one on the RW side, on YOUR side of the argument seems to come in for criticism, so the ‘one side or the other’ formulation is grossly misleading.  But here you have a blog, which we could analogize to the editorial/oped section, that happily assumes one side.  But what about the reportage?  Well, the complaints that are raised here, not about state secrets but about <objectivity</i> seem at the very least highly partisan and subjective themselves.  Basically, the problem with the (bad) New York Times is that is not the (good) Washington Times—that is that its news is not presented from the critics’ point of view.  The language of the criticism—which I would note is not shared either by most Americans about the two publications nor reflected in people’s choices as to what to read—is formulated throughout that somehow the liberal press lacks the RIGHT to do what they do, not just for its supposedly treasonable-to-reveal facts, but for its treasonable biases

    That is not a Constitutional ethos, IMHO.  It is a Tory ethos.

  49. Karl says:

    Amish’s post ciyes to the Youngstown case twice.  As has been mentioned here on several occasions, Youngstown stands for the proposition that seizing steel factories is not within the CinC power of the POTUS (and the page cited does not use the phrase “blank check,” btw).  As collecting foreign intell is clearly distinguishable from seizing private property to settle a labor dispute, Youngstown is hardly controlling in this case. (And if that’s what Comey was relying on—it’s not clear from Amish’s post—I’ll take former Clinton AAG Schmidt’s opinion.)

    Amish also refers to Prof. Stone’s blog post, which was notable for a complete lack of analysis of the relevant statutory or case law.  Prof. Cass Sunstein—a liberal U of C law prof (He and Stone are co-authors of a Con. Law textbook)—did analyze the AUMF argument and found it persuasive (like Schmidt).

    As for the rest, it’s obvious that Amish chose not to read Jeff’s prior threads, which were linked at the end of his post.

    One further point:  Whenever you read the opinion or argument of someone that definitively states that the program was illegal, you should ask yourself, “Has this person demonstrated any knowledge of the tecnical aspects of the program?” Generally, a definitive legal opinion requires an application of the relevant law to the facts of a specific case.  I have yet to see any opposition—from lawyers anyway—that demonstrates a knowledge of Echelon, let alone a knowledge of how international communications are intercepted in this case.

    actus relies on Prof. Kerr, so let’s look at a few of the things he’s written most recently on the subject:

    Article II is not my area of expertise…

    …which he then demonstrates with his argument that Youngstown is more applicable than In re Sealed Case.  The Court in the former made it absolutely clear that they did not view the case as a CinC case—it’s certainly arguable, and I think persuasive—that collecting foreign intell is obviously within the CinC power. 

    Kerr concedes as much, but then thinks that the Nixon abuses on purely domestic surveillance somehow alters our understanding of Article II.  It does not.  Rather, the Keith case maintains a distinction between domestic and foreign surveillance and was the prelude to the enactment of FISA.  He also wants to distinguish the Truong line of cases as involving the warrant requirement, but never addresses the point that if the POTUS has the constitutional authority, there is a serious question as to whether (or hom much) Congress can limit it with a statute like FISA, which is what the FIS Court of Review stated in dicta in In re Sealed Case.

    Kerr ultimately concludes:

    To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don’t yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don’t see the Article II claim as a close one based on existing law. Am I wrong?

    I think he may well be wrong, based not only on existing case law, but also on the details (as he doesn’t address tech details we do know).  But even if I am wrong and he is right on Art II, he concedes the other issues are “difficult.”

    That’s a huge concession, btw.  Prof. Kerr has been arguing that the program probably was Constitutional, but violated FISA. Now the FISA issues are “difficult.”

    MF writes:

    I mean, if they’re not specifically targeting individuals, then how could they know that the intercepted communications are to/from “people linked with Al Qaeda”?  Even if the program is some sort of filter that looks for certain key words or call patterns, DOJ could not plausibly say that the intercepted communications are those of strictly persons linked to Al Qaeda et al., since naturally some (probably most) of the intercepts would result in false-positives.

    If we take a list of phone numbers from a computer captured on a battlefield in Afghanistan, we have reason to believe that they may lead us to people connected with AQ.  But we may have no idea who those people are, or who else may use the phones connected with those numbers.  How are we targeting particular, known US persons under those circumstances?  People who are claiming FISA has been violated need to be able to explain what it is to be both “particular” and “known.” It’s a basic rule of statutory construction that Congress would not have used both terms if they meant the same thing.

    Perhaps this example will be useful:

    976-555-1087

    Q:  Who is the particular, known US person associated with this number?

    Finally—and I recognize this is probably too long already—those asserting the illegality of the program really need to consider that Bush, Gonzalez, etc. are not purporting to set forth every possible legal justification in their public statements.

  50. Jeff Goldstein says:

    Cloudy —

    My biases are up front. Which is the stipulation I put in my post. I’m not a journalistic pretending to objectivity, they I do attempt to fairly represent the opposition’s viewpoint.

    That makes me quite different from the NYT.  So what’s your point?  You seem not to be able to grasp mine, that’s for certain.

  51. MF says:

    Come on Jeff.  We’re arguing about the law.  Hypotheticals are the only way to do it.

    It’s how the Supreme Court runs oral argument.  It’s how lawyers confront questions posed by their arguments, to see if there’s potential problems applying that argument to a set of extreme hypothetical facts.

    If you’re going to engage in legal arguments, you have to confront hypotheticals; trying to predict a future in which I attempt to “prove” Bush broke the law through the use of hypotheticals doesn’t, I think, cut it.

    Hypotethical, Jeff: If Congress repealed the AUMF altogether, and passed a law stating “The war on terrorism is over,” would Bush still have the hypothetical power to use electronic surveillance on US persons in the US without a warrant or court order?

  52. MF says:

    Karl:

    976-555-1087

    Q:  Who is the particular, known US person associated with this number?

    Well, you can rest assured that NSA/FBI is going to try to figure that out lickety-split, right?

    If they didn’t, they wouldn’t be doing their jobs.

    And, I hope we agree, that once they do find out who that is, and that person is a US person in the US, then to monitor any further calls from that number, whether domestic or international ones, they would need to get a criminal warrant or FISA court order, right?

    It seems to me that if that number is, say, from a disposable cell phone, and there’s no way to determine whose it is, then you might be able to conduct continued warrantless/orderless surveillance of calls coming from that number unless and until there is a US person determination.  Once that’s determined, a warrant/order is needed.  Do we agree?

  53. MF says:

    One more thing, Karl:

    Finally—and I recognize this is probably too long already—those asserting the illegality of the program really need to consider that Bush, Gonzalez, etc. are not purporting to set forth every possible legal justification in their public statements.

    Well, people like you and Jeff for some reason hold this as an article of faith.  Despite the fact that Bush et al. have also never purported that they are reserving some other legal justifications for some future date (maybe once Rove’s mind-rays have worked their magic and moved every last Dem out to the end of the branch, and Rove can unleash the silver bullet legal argument and saw the damn branch right off at the base…)

    But it seems far more reasonable to me that if Bush et al. has a strong defense based on definitional technicalities then they would have used them, even if only in some circumspect and cryptic way.  You know, at least try to save themselves the trouble of Congressional hearings and a month of McClellan “no comment[s]” and all that.

  54. Darleen says:

    Jim

    No, Darleen, the islamofascists are not the left’s new pet. Lefties like William Safire’s new pet is the Constitution.

    Quite simply, “it don’t mean what you think it means”.

    I certainly haven’t “lost my principles.” And neither has Jeff or the vast majority of non-Leftists. The statutory and Constitutional obligation of the government is to Protect and Defend the American citizenry. Tax money for education, health, orchestras and performance artists that smear chocolate on their naked bodies is secondary to that primary obligation.

    Copperheads weren’t interested in the Constitution either, just defeating a hated President on anything imagined, regardless of result.

    I want to see NYTimes and Wapo editors in jail until they give up their “leakers.”

  55. Antimedia says:

    MF writes

    Karl:

    976-555-1087

    Q:  Who is the particular, known US person associated with this number?

    Well, you can rest assured that NSA/FBI is going to try to figure that out lickety-split, right?

    If they didn’t, they wouldn’t be doing their jobs.

    And, I hope we agree, that once they do find out who that is, and that person is a US person in the US, then to monitor any further calls from that number, whether domestic or international ones, they would need to get a criminal warrant or FISA court order, right?

    It seems to me that if that number is, say, from a disposable cell phone, and there’s no way to determine whose it is, then you might be able to conduct continued warrantless/orderless surveillance of calls coming from that number unless and until there is a US person determination.  Once that’s determined, a warrant/order is needed.  Do we agree?

    I find it fascinating that once a made a clear statement in answer to your question you did no followup, nor did you acknowledge my response.

    First of all, you continually mischaracterize what we know by using the media’s pet phraseology, “domestic spying”, when in fact we know no such thing.

    The President has clearly stated that, in the case of domestic spying they always get a FISA warrant.

    Will you acknowledge that as a factual statement?

    The President has also clearly stated that the target of the special NSA program is foreign communications entirely outside of the US and foreign communications with elements insides the US.

    Will you acknowledge that as a factual statement?

    If not, I’m done with this discussion.  If so, we can continue.

  56. Antimedia says:

    cloudy writes

    Now, as for the “outrage at leaking state secrets” (note that the impropriety of the leaking is no more proven than the illegality of the program—both require meticulous review of the evidence),

    Bullshit.  As one who held a top secret clearance for almost six years, I can assure you that the leaks are illegal no matter the content.  The program itself is so highly classified that even the name is secret, and I can guarantee you that the information given the New York Times (that which we can read) is classified and those who leaked it have broken the law.

  57. Darleen says:

    Cloudy

    No one is arguing the NYTimes editorial/opinion section.

    One correctly can argue the NYTimes blatant editorializing on the front page as “news”.

    Certainly, they are morally charged to live of to their own advertising as being a “news” organization.

    Otherwise, they should emblazon their masthead with a “All the News fit to Print as Determined by Our Left of Center Agenda” and be done with it.

  58. MF says:

    Antimedia:

    First of all, you continually mischaracterize what we know by using the media’s pet phraseology, “domestic spying”, when in fact we know no such thing.

    No, I haven’t.  At least not in this thread (use control-F).  I’ve tried to avoid that loaded phraseology, and instead have consistently meant (and used) some variation on the phrase “electronic surveillance of both the domestic and international communications of US persons in the US.”

    The President has clearly stated that, in the case of domestic spying they always get a FISA warrant.

    Will you acknowledge that as a factual statement?

    I will acknowledge only that the President has stated this; I do not acknowledge its veracity, it may or may not be true; and I do not acknowledge that “domestic” refers only to communications where both ends are in the US.  I consider “domestic” also to mean international calls originating in the US.

    The President has also clearly stated that the target of the special NSA program is foreign communications entirely outside of the US and foreign communications with elements insides the US.

    Will you acknowledge that as a factual statement?

    Again, I’ll acknowledge only that the President stated this; I will not acknowledge that it is necessarily true; and, again, you can’t just wish away the FISA issue by characterizing the intecepted communications as “foreign.” If the surveillance targeted the phone calls of a known US person in the US, regardless of whether the other end of the calls were in the US or abroad, then FISA was operative for that surveillance.

    Can we agree on that?

  59. Darleen says:

    MF

    Question:

    In the 80’s my (then) husband worked for Northrop on the B-2 stealth bomber. It was such a black operation that the facility where it was being developed was the old Ford truck assembly plant in Pico Rivera and nothing from the outside indicated that Northrop was even there. As his spouse, I was also briefed on required behavior, knew our travel was severely limited, and was told that our neighbors would be background checked. We were charged with telling the FBI liason whenever new people moved into our neighborhood so they could be checked and monitored. All our family members were background checked AND my husband’s brother, a first mate in the merchant marines on an oil tanker, was periodically under surveillance since he travelled overseas.

    Do you believe that all these people – neighbors, family members – who never knew that they had been a subject of FBI surveillance – was illegally deprived of their Constitutional rights?

  60. Herman says:

    “The President has clearly stated that, in the case of domestic spying they always get a FISA warrant.”—Antimedia

    After all we’ve been through the past five years, you automatically believe the President????

  61. Charlie (Colorado) says:

    Your explanations make sense from a purely logical standpoint—i.e., they’re reasonable –but I don’t think they state the law <blockquote>accurately.

    Depending on how you pick your citations.

    Second, the definition of regulated electronic surveillance of main interest to us is the one contained in FISA section 1801(f)(1).

    As, for example, that one.  This is in conflict with, eg, Directive 18.

    (I don’t buy the “wire” argument either, but then it’s not my argument so I don’t have any obligation to defend it.)

    Another technical, definitional defense of the program is based on the requirement that the surveillance intentionally target a known, US person – e.g., some kind of mass data mining technique would not violate FISA.  I will admit of the possibility that this is at least part of the program.  But the DOJ states clearly that “[t]he NSA intercepts certain international communications into and out of the United States of people linked to Al Qaeda or an affiliated terrorist organization.” That surely seems like an admission that they have specifically targeted “people linked with Al Qaeda” et al.—that is, certain identified persons (I mean, if they’re not specifically targeting individuals, then how could they know that the intercepted communications are to/from “people linked with Al Qaeda”?)

    … except that “targeting individuals” doesn’t mean they’re targeting “US persons”.  The rest of this graph depends on the unstated assumption that the individuals are “US persons” and therefore the restrictions of §1801 et seq apply.  You haven’t, however, shown that to be the case.

    <blockduote>So, the only possibility that 1801(f)(1) does not apply is if the intercepted communications are such that the US person involved does not have a “a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” This is the only technical definitional defense that might fly.  And arguments to this effect have been raised on this site and over in the comments on this post at Volokh.com by Prof. Kerr (which I see you’ve commented on).</blockquote>

    Uh, no, actually there’s still the possibility that the persons are §1802(b) “agents of a foreign power” which means the requirement for a warrant doesn’t apply.

    On the “reasonable expectation of privacy” point, my impression is that this has been litigated and found in the contrary.  The Volokh thread has lots on it, but that’s far outside my area of expertise.

    Pulling in something later, just to save space:

    Well, you can rest assured that NSA/FBI is going to try to figure that out [who has 976-555-1087] lickety-split, right?

    If they didn’t, they wouldn’t be doing their jobs.

    And, I hope we agree, that once they do find out who that is, and that person is a US person in the US, then to monitor any further calls from that number, whether domestic or international ones, they would need to get a criminal warrant or FISA court order, right?

    It seems to me that if that number is, say, from a disposable cell phone, and there’s no way to determine whose it is, then you might be able to conduct continued warrantless/orderless surveillance of calls coming from that number unless and until there is a US person determination.  Once that’s determined, a warrant/order is needed.  Do we agree?

    Yes, I think this is all true.  But then, I don’t think this is inconsistent with anything that has been said officially (as opposed to hypothetical “facts” from opponents).

    So then , as I understand it, you and I are agreeing that the Article II powers and FISA statute both allow warrantless intercept until and unless the person involved is identified as a “particular US person” under §1801?

  62. Darleen says:

    Herman

    After all we’ve been through in the last five years, you automatically believe the Mainstream Media?

  63. Herman says:

    Any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order,” he said on April 20, 2004 in Buffalo, New York.

    You believe that too, Antimedia???

  64. Herman says:

    “he” in my last comment equals “Bush”

  65. you’re going to argue that the president lied because he didn’t reveal classified info?

    sorry herman, thanks for playing.

  66. Antimedia says:

    MF writes

    I will acknowledge only that the President has stated this; I do not acknowledge its veracity, it may or may not be true; and I do not acknowledge that “domestic” refers only to communications where both ends are in the US.  I consider “domestic” also to mean international calls originating in the US.

    You don’t get to redefine legal terms, MF.  Domestic means “entirely within the borders of the US”.  Foreign means “originating or terminating in a foreign country”.

    Your hypothetical

    “nothing in this force authorization shall be construed to give the Executive authority to conduct electronic surveillance of communications involving US persons (as defined by FISA) in the United States without a warrant or court order,”

    assumes that any surveillance of a US person without a warrant is not authorized by FISA.

    FISA defines foreign intelligence information as

    (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—

    (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

    (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

    (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power;

    (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—

    (A) the national defense or the security of the United States; or

    (B) the conduct of the foreign affairs of the United States.

    Note that there is no statement of where this information originates from.

    A federal appeals court has ruled that NSA can lawfully intercept such communications.

    A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.

    Furthermore, US courts have repeatedly distinguished between domestic and foreign surveillance as they apply to the Fourth Amendment and the rights of citizens.  In fact, a US citizen has been convicted using evidence obtained (pdf) through warrantless surveillance done by the NSA.

    The Government’s submissions establish persuasively that the purpose, throughout the entire electronic surveillance of El-Hage and during the physical search of his Nairobi residence, was primarily the collection of foreign intelligence information about the activities of Usama Bin Laden and al Qaeda. There was no FBI participation in the electronic surveillance that took place.

    Note that the court is distinguishing between the NSA’s military surveillance function and the FBI’s law enforcement function in finding that the surveillance was not only legal but the fruits of that surveillance could be used to convict El-Hage of a crime, even though he was a US citizen and no warrant was ever obtained for either surveillance or a physical search of his residence.

    FISA also <a href=”http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001811—-000-.html<authorizes warrantless surveillance</a< for up to fifteen days during a time of war.<blockquote<Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.</blockquote<Naturally, some will argue that Congress did not declare war.  However, any lawyer worth is salt will successfully argue that Congress hasn’t formally declared war since WWII, yet no reasonable person would argue that Korea, Vietnam and the Gulf war were not wars.  Therefore, the AUMF is a declaration of war, notwithstanding arguments to the contrary.  Congress cannot escape its statutory duties using weasel words.

    Finally, FISA appears to have a legal loophole big enough to drive a Mack truck through.

    Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

    (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

    (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

    he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.

    The highlighted section clearly anticipates a situation where warrantless surveillance is done and a FISA warrant is never obtained.  The only stricture is that the evidence obtained cannot be used against someone in court except with the approval of the AG under certain specific circumstances.

    I think there is more than enough room in FISA for the President to authorize the program he authorized.

  67. Antimedia says:

    Herman asks

    “Any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order,” he said on April 20, 2004 in Buffalo, New York.

    You believe that too, Antimedia???

    Absolutely.  Note the use of the word “wiretap”.  He is referring to domestic surveillance done using wiretaps.  Don’t confuse SIGINT with law enforcement. methods.

    And yes, I believe the President.  I yes, I know there are many who don’t, but their beliefs are based upon lies (e.g. Bush lied about WMD, etc., etc., ad nauseum, ad infintum.)

    Try using intelligent arguments based upon facts.

  68. Herman says:

    He is referring to domestic surveillance done using wiretaps. v—Antimedia

    And where in Bush’s quote above, does he even mention “domestic surveillance”????  Please observe that in his quote, Bush chose to use the words, “Any time,” and not “Whenever calls are within the U.S.” Or would you have us believe that it is utterly impossible to use a wiretap for international communications???  If so, you got to prove it.

  69. Antimedia says:

    Herman, if you understood SIGINT, you would know they don’t use wiretaps.  That’s an FBI function.  Think satellites and telephone trunks.  Think massive amounts of signal, not a discrete conversation.

    You quoted the President thus

    “Any time you hear the United States government talking about wiretap,

    Then you attempt to change the definition thus

    Please observe that in his quote, Bush chose to use the words, “Any time,” and not “Whenever calls are within the U.S.”

    To a fool, your argument might make some sense, but to someone who can read, the President wasn’t referring to the locus or origin of the signal at all.  He said, Any time you hear the government talking<b> about wiretap, not “Any time the government <b>does wiretapping.

    The President (unlike some other people) is not going to discuss secret programs with the media.  He could not, therefore, be talking about the NSA program, because it’s secret.  Get it?

    NSA == military surveillance

    FBI == domestic surveillance

    Get it?

    I was involved in top secret SIGINT work for almost six years.  I understand exactly what the President is saying.

  70. actus says:

    Actus: They do.

    I’m sorry, Actus, I wasn’t aware this had been adjudicated yet. 

    Me neither. I’m talking about what’s been written by those guys.  But lets go ahead and have an adjudication. 

    Jeff:

    You’re quoting Schmitt

    I know. I thought the cute part was at the beggining when he was bemoaning the ACLU for praising FISA. Of course we can be both upset that FISA doesn’t protect enough civil liberties and yet still want it followed.

    Again, we don’t know enough about the particulars of the program to make the kinds of charges many continue to make.  From what we know of the program, no laws were broken.

    Hopefully more details will surface. I’d hate to have a criminal in office. 

    But this is a bit different than the argument that nothing illegal has been going on by relying on all 3: article II, the AUMF, and no FISA violation.  Its a maybe, maybe not.

    Karl:

    If we take a list of phone numbers from a computer captured on a battlefield in Afghanistan, we have reason to believe that they may lead us to people connected with AQ.  But we may have no idea who those people are, or who else may use the phones connected with those numbers.  How are we targeting particular, known US persons under those circumstances?

    Are you seriously telling me that if they find US numbers on an Al-Qaeda computers they don’t look up who those numbers belong to?

  71. Charlie (Colorado) says:

    Are you seriously telling me that if they find US numbers on an Al-Qaeda computers they don’t look up who those numbers belong to?

    I think I discussed this at some length today, but it may have been on Volokh (it all blurs together after a while.) So if I’m repeatin myself here, forgive me.  But I think it’s entirely possible, even likely, that they are doing network searches of the phone numbers and their associations before determining who the numbers belong to.  Especially in a old or anonymous, prepay cell phones available in Safeway, it’s not necessarily easy to find out who a phone number belongs to; my suspicion is that when they obtain, say, a US number from an Al Qaeda computer, they start looking at associations with that number right away.  This will lead to a lot of phone numbers, most of which will quickly be discarded because they don’t have the “right” traffic patterns.  At least under some interpretations (such as some of the things MF has said) they might have to determine for each such number whether it belonged to a “US person” (itself not that easy to do) before they could follow up on further associations.

    Finding associations happens at computer speeds; finding out whether a phone number is being used by a “US person” happens at people speeds.

  72. cloudy says:

    What is my point?  After all, the NY Times as I kind of suggested, has both a news and an ediorial section, and I assume the charge here is that the news is too biased.  It just seemed odd to me that the description of partisan advocacy came from a standpoint of such strong partisan advocacy.

    OK, so the issue is the ‘hidden bias’ that supposedly characterizes the <objective reporting.  I say “more objective” even though this takes a difficult middle position between the notion that there is some implicit absolute of ‘objective’ news, being followed presumably by FOX and not the <i>NY Times</i>, rather than the intrinsic problem of objectivity—starting with the decision of what news stories are important and belong on the front page, and what is a ‘non-story’, a mere kerfuffle.  I thought that many of these stories merited banner headlines, which happened day after day during Watergate, but hasn’t happened here at all.

    This is the first key point:  you see FOX, or The Washington Times or what-have-you as more ‘objective’ simply because they share your slant on the news.  (I noted in a posting on the thread about the “study” purporting to prove liberal bias, that their treating FOX as neutral tipped the hand of that supposedly “objective” study; I also linked to a response to the study, which no one to my knowledge has answered.)

    The New York Times, on the other hand, to someone who sees FOX as ‘fair and balanced’ and the same with other RW media, seems outrageously “biased”.  I do not claim that the New York Times is without bias (too far RIGHT for my political preferences) in its news coverage—all newspapers have “biased” news coverage.  As far as reporting the facts, The New York Times does about as complete a job as anyone, which is why I read it regularly.

    Again, the New York Times may not choose to frame the issue as ‘the NSA doing its job’.  They don’t see it that way.  Rather than accepting the fact that in a pluralist society, some people have different honest perspectives, unavoidable in the relation of facts, as any journalist knows, from others.  As I said, the

    very choice of how much emphasis to give a story is itself a subjective choice, a decision as to what is important.

    What I would like to see are examples, say, of the same news story covered the same day in the Washington Times and in The New York Times, replete with an argument of how and why the former is “objective” news coverage and the latter “biased”.  To do this and argue cogently, so that those completely not sharing the generally held politics at this site would be convinced in large numbers that it was not basically a matter of whose bias you share, would be indeed a great feat.

    I also got the distinct impression, as the second and major part of my point, that the issue was not that the ‘liberal’ media had failed to report news ‘objectively’.  (It was a subtle critique, with the issue not of inaccuracy of facts, but of how they were ‘arranged’ or ‘framed’.  This is a tricky problem in critiquing media.  You could look at Noam Chomsky for excellent critique of media objectivity from the Left.  The difference is that Chomsky meticulously goes over the facts in their particulars, examines how they are framed and what is wrong with them, and then sets a pretty clear standard for what <objective</b> reporting would look like.  Is he himself “free” of bias in his analyses?  No one is.  But the thing about Chomsky is that the very people he critiques, say in <objectively</b> wrong.

    Just as a leftist can look at Von Mises Bureaucracy and see that a really good argument has been put together, so a RWer should be able to appreciate the superb methodology of Chomsky in his critiques.  What I see here is simply an insistence, laden with characterizations of the New York Times as “arrogant” and such, that insists upon a different frame, emphasizing that ‘we are at war’, that the law should be interpreted the way you see it, etc.

    I would add that what appears as liberal (the Grey Lady is more centrist, endorsing Pataki and Bloomberg, although leaning left on civil liberties issues) in the US is hardly to the right of the mainstream of WORLD opinion.  For example, on the Iraq War, the overwhelming majority of world opinion, including both press and governments, strongly opposed the US ever getting into the war and insist that the coalition of the willing should get out fast (as is my own position and NOT that of the NY Times.  In short, what is even labelled “left” is only relative to the US arena of political expression, which in the world today skews way to the right of center.  (I don’t take that as proof of being wrong, but sometimes it appears that if the position of someone is to the left of center on any issue, that shows that they are not firing on all four cylinders.)

    I reiterate that the language of the critique that I quoted strongly suggests a challenge, if oblique, to their very right to formulate the issues the way they do.  Blending it with charges of violation of the laws protecting state secrets underscores this ‘what right do they have?’ meme.



    As for the security expert who argues that classified information was improperly revealed by the Times, there is much precedent, as in the Pentagon Papers, of material being revealed and challenged in the same way, and found legal to publish.  And the case in their defense can be made just like the case (less cogent to me, but that’s my own perpective) that all the NSA snooping was legal, on the grounds that a 72 hour AG authorized tap with post-facto approval by a court isn’t generous enough.

    Again, it is crucial to reiterate the disingenuousness, on the underlying issue, of citing, as Bush does, the freedom to wiretap Al Qaeda folk and their numbers.  Why would these types of routinely cited examples ever have even the slightest trouble getting approval?  It is the snooping and the types of snooping that could NOT get Congressional approval, even from a RW Congress, like the data mining programs, that are at issue, not snooping on Al Qaeda.  The latter is merely a repeatedly raised red-herring in this context, for the reasons I just cited.

  73. Truly bizarre to call the President a liar for not disclosing a highly classified intelligence program.

    Maybe bizarre isn’t the word I’m looking for…

  74. actus says:

    Finding associations happens at computer speeds; finding out whether a phone number is being used by a “US person” happens at people speeds.

    So? What kinds of ‘associations’ are you talking about? Calling histories? That’s not wiretap or surveillance.  Are you talkign about waiting till another call gets made? That’s “people speed” if you want to use dot-com lingo.

  75. Actus, you still down here?  I’m sorry, I didn’t notice you’d asked me a question on this thread.

    <blockquote> Finding associations happens at computer speeds; finding out whether a phone number is being used by a “US person” happens at people speeds.

    So? What kinds of ‘associations’ are you talking about? Calling histories? That’s not wiretap or surveillance.  Are you talkign about waiting till another call gets made? That’s “people speed” if you want to use dot-com lingo.</blockquote>

    Yeah, I’m thinking about calling histories in part; I’ve seen people assert absolutely positively and authoritatively that those either are, or are not, “surveillance” at various times in this thread.  But I’m also thinking of prospective “call histories”.  let’s say we got Alice’s computer, and find it has Ben, Bob, and Beth’s phone numbers in it.  we then start looking at Ben, Bob, and Beth’s phone, not intercepting the content of their calls, but watching what happens when, say, it becomes public that Alice was captured. Ben calls 14 people in the following hour; Bob calls 3; Beth calls 11.  We follow those 28 people’s phones, and discover after a few more calls that there is a small group of say three people who keep showing up in the chains of who-called-who.  That group is likely to be composed of people who are “important”.  Not certain — maybe a lot of the people call for delivery from the same falafel stand — but likely.

    If one of those three turns out to be in the US, that person is likely to be a “person of interest.” If they are a “US person” as well, you might then want a FISA warrant.  But notice what I’m talking about watching calls of potentially, I don’t know, a thousand people, without ever determining anything about them, including who they are.

  76. MayBee says:

    cloudy- this is a bit off topic, but I’ll ask.

    On what basis do you say the majority of world governments think the coalition should get out fast from Iraq?

    On what basis do you define the US to be ‘right’ of the rest of the ‘world’?

    Civil liberties?  Freedom of the Press?  Social programs?  Religious freedom? Judicial systems?  Economic freedom?

    Are you meaning the “world” or Europe?

  77. Cloudy, its pretty funny to see you make a long-winded and yet ultimately vapid defense of the New York Times when the NYT won’t even bother to defend their own reporting decisions to their own public editor.

  78. actus says:

    Truly bizarre to call the President a liar for not disclosing a highly classified intelligence program.

    Maybe bizarre isn’t the word I’m looking for…

    It does mean we can’t really believe him. Because there can always be a top secret program that, say, knows that saddam had no WMDs. And though the president is not a ‘liar’ for telling us that saddam had them, we can’t really believe him when he says he has them.

    I’ll settle for that instead of liar: Non-credible.

  79. actus says:

    Charlie

    But I’m also thinking of prospective “call histories”.

    Prospective ‘call histories’ happen at ‘people speed,’ as the people you’re monitoring make new calls.

    And in surveillance/wiretap, there is different treatment for the numbers you dial than for the contents of your call.

    But notice what I’m talking about watching calls of potentially, I don’t know, a thousand people, without ever determining anything about them, including who they are.

    And I have no idea why you would not determine who they are.

    And lastly, again, are you seriously telling me we’re just gonna wait on some numbers and not try find out who they belong to? At “people speed”? You know, a call to the phone company, like we do to get call histories?

  80. Antimedia says:

    Actus writes

    It does mean we can’t really believe him. Because there can always be a top secret program that, say, knows that saddam had no WMDs. And though the president is not a ‘liar’ for telling us that saddam had them, we can’t really believe him when he says he has them.

    I’ll settle for that instead of liar: Non-credible.

    So long as you apply that same standard to every President, regardless of party, then I would have no problem with it.

    But that’s not the case, is it?

    Actus also writes

    And I have no idea why you would not determine who they are.

    And lastly, again, are you seriously telling me we’re just gonna wait on some numbers and not try find out who they belong to? At “people speed”? You know, a call to the phone company, like we do to get call histories?

    Then you’re very short on imagination.

    There are throwaway cellphones you can buy that have no “name” attached to them.  There are phone numbers that “belong” to people who haven’t had them in over a year.  There are phone numbers that “belong” to people that are being used by other people, with or without their knowledge.

    There are a myriad of ways one can conceal who one is or redirect the phone lines in ways that make it extremely hard to trace.  You wouldn’t make much of a spy if you took these things at face value.

    Furthermore, there are American citizens who are members of Al Qaeda.  Just because they’re American citizens does not shield them from being surveilled without a warrant.

    Life is not nearly as black and white as you’d like it to be.

  81. actus says:

    So long as you apply that same standard to every President, regardless of party, then I would have no problem with it.

    But that’s not the case, is it?

    Sure is. I certainly didn’t support clinton’s wars. Me and Tom Delay were out there, being against the troops. I certainly got ticked off when I heard about Echelon. I wanted congressional investigations. Instead I got a book report about a BlowJob.

    There are throwaway cellphones you can buy that have no “name” attached to them.

    Then they can find out if this is the case at ‘people speed.’

    Furthermore, there are American citizens who are members of Al Qaeda.  Just because they’re American citizens does not shield them from being surveilled without a warrant.

    Is this your opinion? or what?

    Life is not nearly as black and white as you’d like it to be

    Sometimes the laws are.

  82. Antimedia says:

    actus writes

    Furthermore, there are American citizens who are members of Al Qaeda.  Just because they’re American citizens does not shield them from being surveilled without a warrant.

    Is this your opinion? or what?

    Read my blog.

    Life is not nearly as black and white as you’d like it to be

    Sometimes the laws are.

    Very few laws are black and white.  Ask any attorney.

  83. actus says:

    Read my blog.

    So opinion?

    Very few laws are black and white.  Ask any attorney.

    Ah! therein lies the room for the judge to make his bed.

  84. Jake - but not the one says:

    Holy shit, I think I’ve died and gone to heaven.

    Or hell.  I guess it depends upon your viewpoint.  But here we have a real discussion.  I am totally impressed.  I totally disagree with Antimedia and Charley, and Jeff, but at least it’s a genuine discussion.  Kudos to you all.

    I did detect one small little blip on the bullshit radar – someone said the AUMF authorized going after all those Islamofascist terrorists, or something like that.  The AUMF is pretty specific to the perpetrators of 9/11.  The perps, and states, organizations and persons supporting the perps.  Which is why it is so important that Bush NOT capture or kill OBL.  THat helps explain why we have been so dilatory in Afghanistan – cause, by GAWD, we need that war in Iraq, and without the OBL bogeyman, Iraq is very problematic wrt 9/11.  Which is why there just must be some connection between Iraq and 9/11.  Not that anyone has found one, but hey, we’re still killing people while we hunt for the connection.

    Someone also said, if Bush says we are only intercepting comm into the US, shouldn’t we take him at his word?  Well, no, becuase one of his guys who might actually know how it all works – the DOJ – says we are interceping comm both ways.  Here’s a link to the discussion at the infamous Glenn Greenwald site (which site I recommend highly):

    http://glenngreenwald.blogspot.com/2006/01/bushs-confusion-about-eavesdropping-he.html#links

    Finally, SOMEBODY dissed Tbogg as unfunny.  Man, if you don’t find Tbogg funny, you need to get a humor transplant.

    Oh, wait, nevermind.  I think a whole brain transplant might be in order.

    Jake

  85. Phoenician in a time of Romans says:

    To be absolutely clear, I hold the leaker(s) and the media to account for the following reasons:  1) from what we know of the program thus far, there is absolutely no compelling evidence that the President has acted illegally¹

    From Top 12 media myths and falsehoods on the Bush administration’s spying scandal:

    3: Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Surveillance Act

    Conservatives such as nationally syndicated radio host Rush Limbaugh and American Cause president Bay Buchanan have defended the administration by falsely claiming that the administration’s authorization of domestic surveillance by the NSA without warrants is legal under FISA. In fact, FISA, which was enacted in 1978, contains provisions that limit such surveillance to communications “exclusively between foreign powers,” specifically stating that the president may authorize electronic surveillance without a court order only if there is “no substantial likelihood” that the communications of “a United States person”—a U.S. citizen or anyone else legally in the United States—will be intercepted. Such provisions do not allow for the Bush administration’s authorization of domestic surveillance of communications between persons inside the United States and parties outside the country.

    FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering “foreign intelligence information” for “a period” no more than 15 days “following a declaration of war by the Congress.” This provision does not permit Bush’s conduct either, as he acknowledged that he had reauthorized the program more than 30 times since 2001, and said that the program is “reviewed approximately every 45 days.”

    […]

    12: A 2002 FISA review court opinion makes clear that Bush acted legally

    Recently, conservative media figures have misleadingly cited a 2002 opinion by the Foreign Intelligence Surveillance Court of Review (FISCR) to claim that the president could authorize warrantless domestic electronic surveillance despite FISA’s restrictions. They have pointed to the court’s reiteration of the president’s inherent constitutional authority to conduct foreign intelligence surveillance without a warrant, which FISA cannot encroach upon. Therefore, they argue, Bush could authorize NSA’s warrantless monitoring of “U.S. persons,” regardless of FISA’s restrictions.

    But, as Media Matters documented, this argument is a red herring. Their citation of the decision to support the contention that Congress cannot encroach upon the president’s constitutional authority ignores constitutional limits on that authority. Of course a law passed in 1978 would not trump the Constitution—the supreme law of the land. The question is the scope of that presidential authority and whether it extends to acts that would violate the provisions of FISA protecting U.S. persons from excessive government intrusion. Contrary to these media figures’ suggestions, the 2002 FISCR opinion does not address that question. [more elided]

  86. Herman says:

    Antimedia,

    You might want to go to

    http://www.cnn.com/2005/POLITICS/12/17/bush.nsa/

    And check out the headline, “Bush says he signed NSA wiretap order”.  Please note the word, “NSA” in the headline.

    So the NSA does perform wiretaps, doesn’t it now, Antimedia??? That’s got to hurt.  You may be “Antimedia,” but let’s just say I find CNN a little more trustworthy than I find you (no offense).

    And I noticed that you just happened to chop off from one of my quotes the part that was a little inconvenient for you.  Let me give you the full quote again, with the inconvenient part in bold:

    “Any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order.”

    Please note that Bush is not restricting what he says to the FBI, or the NSA, or what-have-you, but instead he refers to the whole U.S. government.  The unmistakeable conclusion that Bush would have us believe is that the federal government needs a court order before it can eavesdrop (your trivial arguments about “talking about” notwithstanding).

    You write:

    “The President (unlike some other people) is not going to discuss secret programs with the media.”

    Does that mean he’s going to lie to Americans in order to trick the terrorists????  Why can’t he keep his mouth shut rather than lie?

    You might want to check out Glenn Greenwald’s website.  On one of his webpages, Glenn has

    Bush quotes telling those dastardly terrorists certain aspects about our government conducts surveillance.  Maybe Bushie should keep his mouth shut more often, huh?

  87. Jeff Goldstein says:

    BUSHIEMCHITLERCHIMP!  EEK-EEK-EEK LIES LIES LIES!

    Just in case you want to know what you sound like every time you post your ignorant piffle here, Herman.  This reply was a one-time courtesy, by the way.  I’ll go back to ignoring you until (and if) you ever post something that hasn’t already been answered, or is at least relevant.

  88. dave says:

    Another moronic brownshirt fuck who’s full of shit.

    End. Of. Story.

  89. I’m not right or left, Republican or Democrat.

    I’m a citizen of the United States In America.

    What the hell happened to the rest of you?

  90. Jeff Goldstein says:

    Sigh.

    If there’s one thing I can’t stand it’s empty self-righteous posturing.  I’ve written many thousands of words on this subject, have read through legislation, have contacted intelligence people, etc etc.  My position is something I came to after trying my best to understand the NSA program by using the info thus far revealed (and by reading between the lines to the best of my ability).

    If you have an argument to make, crusader bunnypants, make it.  But melodramatically declaring yourself non-partisan and expressing exasperation with those who are working to understand this program is nothing but showy laziness.  I’m a citizen of the United States, too, after all; what’s your point?

    As for dave, well, I’ve come to expect that level of response from those who believe their political affiliations grant them de facto righteousness and intellectual superiority.  I worked with dozens of such self-satisfied faux thinkers at the university.  Too lazy to marshal an argument, they simply wave their hands dismissively and hurl insults—as if their angry disagreement alone is some sort of proof of their own assertions.

    What’s worse, dave couldn’t even come up with anything more original than “brownshirt” followed by tired and affected. Punctuated. Emphasis. 

    What a fucking tool.

  91. Herman says:

    Jeff, Our country’s Chief Law Enforcement Executive and the Commander-in-Chief of our country’s military has indicated that is required for the U.S. government get a court order before engaging in any wiretapping. Are you being serious when you call that irrelevant???

    If so, then when you mutter the words, “What a fucking tool,” look yourself in the mirror.

  92. Joe Vislocky says:

    I’m baffled at what I’m reading with some individuals making statements the President is not guilty of a crime while others claim that without question he is guilty.  Not to mention the name calling.

    I have read every news story I’ve been able to locate on this subject and can come to only one conclusion; in the absence of knowing real facts, an independent prosecutor is necessary as it’s evident that the Attorney General is biased and the Senate Judiciary Committee is bogged down in partisan rhetoric.  We need someone who will weigh all the facts and make a judgement based upon verifiable knowledge, not politics. 

    Regardless of the outcome, the resolution to this story will have precedent setting ramifications going forward for the entire republic and it should be treated with due respect.

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