[update: from Allah: “Rumsfeld heckled … by wacko conspiracy theorist Ray McGovern”; meanwhile, Rick Moran notes that Rumsfeld lied while on the spot yesterday, something Rick finds ironic, insofar as he believes Rumsfeld was lying about telling the truth (as he believed it back in 2003). Rick goes on to suggest that the troop levels in Iraq are another mistake Rumsfeld should admit to—but on that account we disagree: the purpose for keeping troop levels low was to avoid a large US footprint and make suggestions of an imperial US occupation difficult to proffer with a straight face. Read both posts. See also, Talk Left; and for another interpretation of yesterday’s event, I’ll highlight this, from a commenter on Moran’s site:
To use a Clintonian argument, I think your contention that he lied depends on the definition of the word “they.†If “they†are the WMDs themselves, you’re right. If “theyâ€Ââ€â€as Rumsfeld maintained at the eventâ€â€means “suspected sites†then that comports with the facts.
If I’m able to find a transcript, I’ll link it and let you decide for yourselves. Moran’s site contains an excerpt of the 2003 Rumsfeld interview with George Snuffleupagus.]
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The DoJ, with the support (though without the urging) of the White House, is taking the next step to affirm that we are indeed at war, and that national security is the number one priority of the government. From “Justice Dept. Opens Domestic Spying Probe”:
The Justice Department has opened an investigation into the leak of classified information about President Bush’s secret domestic spying program, Justice officials said Friday. The officials, who requested anonymity because of the sensitivity of the probe, said the inquiry will focus on disclosures to The New York Times about warrantless surveillance conducted by the National Security Agency since the Sept. 11 terrorist attacks.
The Times revealed the existence of the program two weeks ago in a front-page story that acknowledged the news had been withheld from publication for a year, partly at the request of the administration and partly because the newspaper wanted more time to confirm various aspects of the program.
The story unleashed a firestorm of criticism of the administration. Some critics accused the president of breaking the law by authorizing intercepts of conversations—without prior court approval or oversight—of people inside the United States and abroad who had suspected ties to al-Qaida or its affiliates.
This is an important step by the DoJ (and by extension, the White House), especially insofar as it will reaffirm the administration’s position that we are, in fact, involved in a global war on Islamic fanaticism, and not, as many on the left and in the media seem bent on framing things, simply involved in procedural game of balancing our own civil liberties with legal efforts to find and convict terror suspects—with the liberal-left, the Libertarian right, and legacy media assuming the part of brave dissidents beating back executive branch usurpation of powers.
Such a framing of the narrative is objectively false; but there can be no doubt that it does wield quite a bit of rhetorical power, particularly inasmuch as it intentionally and pointedly references Vietnam, Watergate, the Pentagon Papers, and COINTELPro as a way to establish its anti-authoritarian bona fides and assume a kind of cultural moral highground.
What we are witnessing here is a battle that was a long-time in coming between a Republican leadership and the press. Leaks by unelected and entrenched foreign policy and intelligence bureaucrats (or perhaps elected members of the Congress?) meant to undermine the President in a time of war must carry with them consequences. 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.
Which is not say we need to round people up and throw them in jail—but rather to suggest that we need not keep up the pretense that such actions are laudable and de facto “patriotic,” particularly when they do damage to the lawful exercise of executive powers meant to protect our national security and, as unobtrusively as possible, allow us to maintain our way of life even during a time of war.
This tactic—overtly challenging the power of the press and of the self-appointed “whistle blower” (which designation does not and should not extend to leaking classified information from a program that has been vetted by the FISA court, Congressional leaders, and which falls under AUMF power)—is a gamble on the part of the DoJ and, by extension, the administration.
But it is one that I think politically at least could benefit the Bushies. Popular trust in the MSM is already at a low point; and I think many Americans gravitate toward a President who has the confidence of his convictions enough so to take on the fourth estate—particularly when the battle is over his ability to protect the homeland and root out terror cells that have embedded themselves in our communities.
Given a choice between having our phone calls monitored by the NSA (which is itself a chimera) and NOT having the NSA potentially violate the “civil liberties” of Americans in league with foreign agents (under a contested FISA infraction) in the course of trying to prevent a domestic terror attack, most of us will choose the former, I suspect.
—Which is all academic anyway, because I don’t believe our civil liberties are being violated. And so the choice between civil liberties and security is merely a hypothetical that has been raised in response to the way the press and its Congressional and partisan enablers have framed this story—a way way that is (from what we know of the program’s particulars) completely at odds with how it’s actually being run.
Still, let’s have the public conversation about civil liberties. But let’s not let the media and the ACLU (or fuzzy, milk-lapping cloaks of knowing, self-satisfied irony) shape this story for us.
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(h/t Malkin; some related stories here, here and here)
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update: See also, the Boston Globe (h/t Dick Thompson)
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reference:
My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.
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The text of Clinton’s EO 12958; abridged version here.
You are extremely good at presenting the false choice. Why can’t we have our phone calls monitored in a manner that protects civil liberties? Why is that not a valid option? Your framing of the question as purely security vs. freedom is clever, but really not the point.
Simply, Steven, because the technology of modern public communications has left the old scheme of warrants and courts obsolete and in this war, we cannot afford to cripple our military intelligence.
You miss the point, Steven. I don’t believe our civil liberties are being violated. Therefore, the false choice has been raised by the press, who has framed this story in a way that is (from what I’ve been able to find out) completely at odds with how it’s actually being run.
Steven, the only civil liberty that media and ACLU care about here is absolute liberty to have phone conversations without being “monitored”.
I.e., there is just no way (in their view) to reconcile monitoring and “civil liberties”.
Not a false choice at all.
Jeff is smarter than that. At least when he is sober. Or halfway sober.
NSA, torture, Iraq, terrorism, cookies, blah, blah, blah.
What I want to see is the
ARMADILLO!!!!!
Dance you little scaly hunk of Love!
Dance for Freedom!
Dance for Bush!
Dance for Hillary!
Dance for the NSA!
Dance for Cookies!
Just get out there and DANCE!
About damned time.
Wait for the howls from the NYT when their reporters go to jail in contempt this time. Wait for the culprits (a dozen?) to be elevated to the exulted status of “whistle blowerâ€Â.
Time to clean house. Get a big damned broom.
Here is how the ACLU is framing this:
Revealing classified information and/or classified operations is fine as long as it damages the Rethugs and the lying Chimperor. Note that the ACLU was absent when the lying Joe Wilson/Plame affair was revealed. Selective outrage?
Obviously, the irritant for critics of this surveillance is the absence or lack of judicial review.
Arguing that Congress has oversight and therefore can pull the plug on the program by de-funding it is not satisfactory. I’ve tried that approach. It’s not selling.
They simply (but it’s not-so-simply, of course) want judges to approve of the measures.
Anything less is not acceptable. The inherent powers argument, authorization for war providing a statutory exemption to FISA, limits of the surveillance to international calls, are all dismissed.
Judical review. Nothing less.
SMG
They simply (but it’s not-so-simply, of course) want judges to approve of the measures.
I think it speaks to the basic anti-democratic nature of the Left.
SteveMG,
But the Left is argueing against a “worst case scenario” while not knowing what this program specifically consists of. They no more know than we do the technical aspects of the program, who specifically it targets, how those targets are selected and how the ongoing surveilance of those targets is conducted.
All they know is that somehow their “rights” have been violated by the Emperor Bush.
Notice the ACLU saying just “American citizens” like it was you or me they were wiretapping instead of suspected terrorists.
They make me sick.
Look, I’m not arguing that this program violates our civil liberties. As you and others have rightly pointed out, we don’t really know enough about the program to judge its legally. My point was in response to how you initially framed the question:
There is a way to protect civil liberties and provide security, and that is mechanism set up by FISA. If that mechanism isn’t sufficient to permit what the administration feels is necessary, then they should go to Congress and get the law changed. The Administration’s party does, after all, control both Houses of Congress. It is not the prerogative of the executive branch to ignore a statutory scheme because it isn’t sufficient to its purposes. If people want to have a debate about the Article II powers of the Executive branch, I’d be happy to oblige. But note, that at this point, even the Administration isn’t making the argument that the Article II powers permit the executive to ignore enacted legislation.
Happy New Year to one and all.
Jeff, you’re the one missing the point.
Simply because you don’t believe that Bush would violate civil liberties does not mean that the rest of us are wrong when we worry about the potential for civil liberty violations that this NSA program poses.
And despite what Jeff and rls claim, I’ve never argued that my “‘rights’ have been violated by the Emperor Bush”—I’ve only argued that they could be violated, and I’d never know about it. And that’s enough for me to remain deeply skeptical of a secretly-authorized, secretly-run spy program subject to no meaningful oversight.
At base, the issue is less about “security v. civil liberties” than it is Presidential assertions of power v. the rule of law. With this NSA program, as with detention and torture, Bush has asserted a theory of Article II war powers that is both incorrect and dangerous.
Bush asserts that some combination of the AUMF and his inherent Article II powers authorize him to conduct domestic electronic surveillance of American citizens without complying with FISA. So whether the NSA program technically violates FISA—and I know Jeff thinks, dubiously in my opinion, it doesn’t—is secondary to the fact that Bush thinks FISA doesn’t bind him.
In other words, whether the details of this particular program make it illegal is of less moment than Bush’s assertion that he has the inherent authority to ignore the law altogether. That’s the point, and those of us raising a stink aren’t the ones missing it.
I would like to see one of these reporters give a detailed explanation of just how data mining works. Most of the articles I have read seem to envision some nerd sitting in a basement with headphones on listening to conversation after conversation. I think the reality is that there are a bunch of code words set up that will trigger further research and the computers “listen” for these code words. They then track the link of these calls and the NSA follows up on that link. If the code words are not there to trigger, then the calls are deleted.
Feel free to correct me if I got the methodology wrong but if I am right then the media owes it to the country to tell us how this works and then how that violates their rights. I think then most of the screams from the LLL moonbats would disappear in embarrassment as it well should.
BTW, for an extremely enlightening debate about the legality of the program between two Federalist Society members, follow this link. It won’t come as a surprise that I find Mr. Levy’s points the most convincing.
<a href=”http://www.fed-soc.org/pdf/domesticsurveillance.pdf” target=”_blank”>
Top of the hour ABC radio news, since 0700 local here, has presented the NSA operation as “domestic spying” and replayed a statement by a college professor (sorry, can’t remember the name) who basically defines the investigation as an administration attempt to muzzle the press and cover up civil liberties violations.
I heard the story last at the 1400 broadcast.
The president has obligations and duties, one of which is to provide for national security. The congress has oversight, and the courts are the final arbiter of constitutionality.
Seems we find ourselves in a situation where the Democrats in congress present themselves not only as too stupid to prevent themselves from being snookered into supporting war against the movement behind killing three thousand of our citizens, but were also incapable of understanding what “oversight” meant when FISA, war powers, and the NSA program they were briefed on originally in 2002 (and periodically ever since).
Now here it is almost 2006 and they realiz they don’t have any domestic political capital, and their fund raising base depends on people who think Cindy Sheehan is an icon.
The people who elected Bush, and Republican majorities, want the war fought to victory.
The Democrats can’t commit one way or another to if we’re at war or not. If we are, then they lose KoS and company. If we aren’t, and they gut the war effort by delegitimizing every single effective countermeasure we’ve come up with over the last four years and thus bum rush the Repubs out on “failing to win”, they arrive in office with no tools left with which to work.
I don’t think they’ve thought the ramifications of this latest manufactured scandal all the way through. (Full disclosure: I decided that sapient thought in national Democrat party circles officially ended with Howard Dean’s elevation to the chair.)
Watching the coming media panic will be akin to bleacher seats on the stern of the Titanic, I think. These leaks would be treason during any war before Vietnam. I am interested to see how deep the knife will actually cut this time around.
TW: thirty. “I don’t think that thirty days and time served is going to cut it.”
This whole matter is simply a stick to beat Bush with. The media for years now has based their attitude to a story on its potential for punishing Bush. They care nothing about the truth or the law.
The timing of the story makes it abundantly clear the NYT was using it as a rhetorical bludgeon to damage Bush and defeat the PATRIOT Act.
Had they thought the adminstration was engaged in anything provably illegal they would have gone with the story long ago.
I suspect they are as shocked as anyone that this story has the kind of legs its had—but part of that is due to the President’s willingness to lash back at the leak and the leakers.
As I’ve argued all along, I think this is a real legal nothing—and a political loser for the Dems and the press.
I could of course be wrong—and the spirited Machiavellian defense of the “whistle blowing” for “civil liberties” by those on the anti-war, anti-Bush left continues to amaze me—so time will tell.
MF:
Bush’s assertion that he has the inherent authority to ignore the law altogether.
As I understand it, the White House doesn’t make this claim (right now; although admittedly they’ve been sorta’ roaming all over the constitutional landscape searching for a defense).
The DOJ has argued, inter alia (as they like to say), that there is a statutory exemption in FISA and that the Congressional authorization to use military force is that exception.
No laws being ignored.
The law has an exemption, the AUMF is the exemption, therefore the law does not need to be followed.
Frankly, this looks shaky to my non-legal eye.
But if FISA and other laws on electronic surveillance are as unsettled as Reynolds, Kerr et al., have stated, then I guess shakiness to one person is solid legal ground to another.
SMG
First of all, If you don’t have anything to hide why care? Civil Liberties my ass. I am sick and tired of the ACLU and the Left weenies crying about OUR RIGHTS. Hell, if this story wasn’t leaked I sure bet that they would be screaming about something else Bush has done. Why don’t you people fucking wake up for Christs sake. Doesn’t the crazy left understand that we are in a war with fanatics that will use and expose our ideas of civil liberties as a weakness to try and destroy us? It makes me sick that these assholes are so self righteous in OUR defense when in reality they are weakening our defensive strongholds. Fuck em all…….
Just a random thought….
What quaint arguments: like scholastics calculating how many fairies fit on the head of a pin. I don’t mean to be smug, but the horse is out of the barn. The cat is out of the bag. The privacy is out of our lives. It was long before 9/11. Rome has burned.
Look around. You enjoy no more privacy than a meerkat copulating at a public zoo. In case you hadn’t noticed, this is the Information Age. It walked into the room while we were watching reruns of Sex in the City. By information, I mean information about you. And me. About all of us. Because this is the Information Age. All information, all the time.
Examples are everywhere: Cookies track our every interest and purchase on the web.
Have you read your bank’s privacy policy lately? They can do any damned thing they want with your info.(Actually, you have two choices: 1) allow them to do anything they want or 2) forbid them, but don’t hold them to it.)
Your employer can now legally control what you do on your off-hours–and with whom. Smoke? It’s not your choice, babe. Eat? Not the high-calorie stuff. Fraternise? Not with perceived security risks.
More and more cities are taping our every move on the street. In response to questions about ubiquitous cameras on the public street, Mayor Daly stated that he ‘owned’ the streets. If you don’t like being filmed, tough shit. The ACLU was singularly uninterested in the case. Now, they’re doing it in Miami and all over.
Some people no longer receive a paycheck–they receive a voucher. Best be able to identify yourself.
In order to sell us more and more things we don’t need, they have to collect more and more information about us. Nothing is sacred. One day soon, you won’t even be able to pay in cash for anything–you’ll have to be able to identify yourself to access your credit. They’ll have your fingerprints on file before you can buy a bottle of ketchup.
The retail store is one of the biggest offenders: RFID will soon allow law enforcement to identify every goddam Number 2 pencil you have in your house–and they won’t even have to walk in the door, they’ll be able to scan the contents of your house, or car, from the curb. Probable cause? You’re kidding.
The insurance company is getting access to your health records and genetic work-up. The day is coming when they’ll refuse to cover you for genetic reasons.
You can now lose a chance at being hired because your prospective employer discovers you owe too much money, or a large part of your student loan is outstanding.
They can fire you or demote you or sue you for writing a blog.
I could go on.
Who in the hell are we kidding? Privacy is a thing of the past. And everyone who’s stolen/stealing it is a friend–a friend–they all have the very best of intentions.
At least George is trying to spare me from being blown up in the streets.
First, Yes we do need to round some people up and once proven guilty, throw them in jail. That would be real consequences for real behavior that’s injurious to your country in time of war. Especially if it is discovered that the leaks originated from beauracrats within a government agency or and elected official. This is war and lives are at stake and the consequences should be harsh. This ain’t Plamegate.
Second, I think that this goes deeper than just this administration against the MSM. The MSM has been riding roughshod over every administration since Watergate forced Nixon to resign. Admittedly, the MSM has been aligned with the democrats. But they have savaged democrats too, when it has been to their advantage to do so.
The democratization of news dissemination, which the internet has helped make possible has helped to restore balance. The 4th estate fights desperately for their power because with it comes privilege, wealth and prestiege. In a ‘fair and balanced’ world do you think Dan Rather or any of the other mannequins would make multi-million dollar salaries? Wouild Walter Cronkite be regarded with the same reverence that he today (by others, not me)?
ZzzZZZzzzZZZzZZ…thud!
Wake me up next year.
I’ve never argued that my “‘rights’ have been violated by the Emperor Bushâ€Ââ€â€I’ve only argued that they could be violated, and I’d never know about it.
Sounds like a variation on the meme “…if a tree falls in the forest and no one is around…”
Darleen,
I noticed that point, too. The argument I’m hearing from the left, and from a few on the right, isn’t that a wrong has been done, but that some how, some day, maybe a wrong might be done. Since a wrong might be done one day… some how or another… we should impeach Bush now, and end the war on terror, preferably by surrendering. Otherwise we’re just like the jihadis. I can’t say I’m impressed.
But they always could be, and they always can be. And there is nothing about this particular case that would change that. It is a truism.
I would argue that at base, the issue is also about “what is a civil liberty?”. Is it a civil liberty to talk to call overseas and not have your number stored mechanically, if you have already been called by a terrorism suspect? Similarly, the arguments about detention and torture are also about what defines an enemy combatant? What is the definition of torture?
You may be one of the people making the stink about that particular issue, and I respect that. But I’ve seen plenty of stink along the lines of “This isn’t about terrorism! This is about dissent!”
And you can’t pretend that argument isn’t out there, just as I can’t pretend there aren’t people saying “If you’ve got nothing to hide you shouldn’t be concerned if the gov’t listens to you”.
SteveMG:
Point taken. But I will point out that the mere fact that Bush et al. are making these legal arguments does not make those arguments valid. There is no way Congress thought that the AUMF would be a statutory exception to FISA, and this will become more clear once the Congressional hearings start.
But I think it’s fair to say that if the purely statutory argument fails—which it should, because its preposterous, as you seem to admit –then the host of Bush defenders will have no trouble shifting to the Article II “inherent powers” argument, which, I might add, is as preposterous as the statutory argument, with the added benefit of being downright dangerous.
I mean, what to make of the ubiquitous citation, on this and similar sites, to the In re Sealed Case dictum: “FISA could not encroach on the president’s constitutional power”? That says it right there: the President can spy on Americans without complying with FISA to advance the war on terrorism. And since FISA was inarguably enacted for the purpose of binding the Executive, that argument requires putting the President’s “inherent” authority above the dictates of law.
In a nutshell, that’s where we are, despite the silly rationalizations based on unsupportable readings of statutory text.
I wonder if you play this post backwards does it say paul is dead.
Well, based on what MF and Mr. Donegal admit to, that we don’t know what is involved in this NSA program, then their line of argument is rather moot as it is hypothetical–based on conjecture.
And the disagreement with Jeff’s framing of the question is equally unserious. Present a counter argument, gentlemen, but dismissing him as “missing the point” is not a rebuttal–it is an effort to change the subject, rather than to address it.
But then this is standard fare for lefties–the drum beat of the big lie repeated over and over until the lie becomes the accepted story line.
Listen to the argument: “…that [my rights] could be violated, and I’d never know about it.”
Pray do tell what right exists, whose violation would be unknown to the rights-holder? How, exactly, does one hold and keep a right where its violation could be unseen? What an absurdity? This is akin to being free from insults spoken behind one’s back.
Or the even more unserious: “It is not the prerogative of the executive branch to ignore a statutory scheme because it isn’t sufficient to its purposes” stated as fact, rather than its reality as an assertion. This is a policy argument from opponents of the Bush administration. The record from the Courts of Appeals in FISA cases looks clear–and that the administration has toed the line. (Sunstein and Clinton’s AAG having addresed these issues.) But its much easier to assert bald claims regarding the administration, than to carry forth a policy argument based on facts.
But at the end of the day, the left always uses an argument that boils down to “making the perfect the enemy of the good,” i.e. that until you prove such a scheme will work flawlessly, you cannot implement it. This, again, is an absurdity, coming from the party of FDR and his policy “experiments”.
Let me make a suggestion. Try posing policy arguments that result with elected candidates, then you get to implement policy. The backdoor method of having unelected judges oversee executive branch policy is undemocratic.
I have been making it a point not to answer MF—you all have been doing fine on your own, and I grow tired of the studied refusal to address key points of my argument in favor of consistent posts begging the question (however graciously).
However, I will address this one point, because it again takes us to the very heart of the matter. He writes:
That is NOT the point—and in fact frames the (hypothetical—because I still have have seen no evidence of a FISA violation, nor do I expect the administation to reveal any more than it has to about the program) question exactly backwards.
FISA was never meant to impinge upon the President’s Article II authorities, as both Carter AG Griffin Bell and the legislative history of FISA made clear. So it is NOT a matter of the President ignoring the law so much as it is the Congress trying to legislate away Presidential powers in war time.
I should also add that this is also about the ability of the press to intimate its way to policy change by disingenuously framing issues—and about an administration that has begun actively fighting back.
MayBee:
I’d argue, probably not. And to the extent that FISA prohibits such number collection, it should be changed. That’s what Congress is for, and I’m sure Congress would oblige, or at least have good reasons not to. But it’s certainly not for the President to define the scope of my civil liberties in secret. In this case, Congress already decided that even storing a record of the existence of the phone call could not be done without following FISA and getting a court order. So while I agree we should be debating whether the law needs changing, it certainly isn’t up to the President to decide, in secret, that it doesn’t need to be followed.
Could you elaborate on this? I just don’t think I get what you’re saying.
The only thing I gather is that maybe some people are saying that Bush is using the NSA to spy on dissenters. While there is no evidence of that, it certainly isn’t out of the question for Executives to engage in that kind of behavior. And given that there are unchallenged reports of domestic spying on anti-war and other groups, one can at least admit that such fears are not per se unreasonable.
If you meant something else, let me know.
But at the end of the day, this is about Iraq too isn’t it? Do you honestly think the left would care one whit about any of this if there were no war in Iraq…if there had been no war in Afghanistan…if this administration’s reaction to the WTC bombing had been a shrug of the shoulders and a little tough talk? I don’t. Perhaps that makes me jaded and cynical, but I don’t.
Jeff wrote, after noting my “studied refusal” to agree with him:
SteveMG! Here it is, my friend! Exhibit A that the AUMF has nothing in the world to do with this dispute. Jeff, like so many others, thinks that the mere fact that we are at war with terrorists means that the President cannot be reeled in via Congressional statute. This is the radical theory I, and so many others, are fighting tooth and nail against. And it is a theory that has no basis in history or jurisprudence, and it must be confronted for what it is: an assertion of unlimited Presidential wartime power.
Jeff, question for you: If Congress explicitly amended the AUMF to read, “nothing in this authorization shall be construed to allow for electronic surveillance not in compliance with FISA,” would the President still be able to authorize this program?
Are you certain Congress would oblige? Because I’m not. They have not to this point, nor have they given good reason not to.
And it isn’t as if they simply didn’t know it was within their ability and responsibilty to do so. Shortly after 9/11, I remember the head of the NSA saying to Congress “You tell me what the people want, and I can do it. But you have to tell me.” And they didn’t. And in the legal gray area a vaccum was formed and Bush, as every president before him did, filled it.
That’s exactly what I meant. And as I said, it is a truism that any executive (or rogue intelligence guy, or bad conspiratorial senator) could absolutely begin a program that violates your rights without you knowing it.
However, I’ve seen you use ‘we’ several times in your arguments, and I was just wondering who all the ‘we’ stands for. Certainly not everyone unhappy with this particular program, because as I said, the complaints against it are varied and in many cases, quite fanciful.
My main problem is that we’re being spied on by agencies that obviously aren’t strictly under the direction of the potus, or any other elected governing body whatsoever, anymore. Also, they suck, and are totally incompetent. With an intelligence failure of the magnitude of the WMDs in Iraq you’d think at least SOMEONE would get FIRED. But no. We still have the same useless fucks, and even the potus is powerless to dislodge them from the disgusting web of leakers that we call an intelligence agency.
Leaving aside the merit of state laws defining marriage as one man/one woman, the proponents of same-sex marriage argue that statutes cannot be used to limit a Constitutional right. As the usual argument goes “If a majority of voters wanted to reinstitute slavery, it wouldn’t make it right.”
Now I see arguments that Congress can, without question, institute statute that limits the Constitutional rights of the Executive Branch.
Color me amused.
MF:
SteveMG! Here it is, my friend! Exhibit A that the AUMF has nothing in the world to do with this dispute.
Yes, that’s Jeff’s argument. He’s been making it for several days now.
I was citing (as I understand it) the White House’s argument.
Two different (somewhat) approaches.
Additionally, it doesn’t have to be either-or, correct?
I.e., Bush has the authority through the AUMF which exempted FISA and Bush also has the inherent power anyway to authorize the surveillance.
Best advice so far is Fried’s op-ed piece noted above. He argues that the vagueness of the law combined with the technical nature of the surveillance makes any conclusions either way impossible to make.
Take a step back, calm down and wait for additional details to emerge before we assume the worst.
But, of course, that’s no fun.
SMG
Forbes writes:
This is simple. I have a statutory right (under FISA) not to have my calls electronic surveilled by the government unless it has a FISA court order. I can even lodge a civil suit to enforce that right, see FISA section 1810. I also have a Fourth Amendment right that any electronic surveillance of my calls not be unreasonable.
Clearly, a few bad actors within the NSA could be listening to my phone calls right now. That’s a violation of my rights. And I wouldn’t know about it. But it doesn’t make the violation acceptable, less serious, or, as you would have it, somehow nonexistent.
Bud, I’ve been counter-arguing my arse off for almost a week now. The counter-argument is this: Maybe Bush needs extra domestic surveillance leeway through expansion of FISA or otherwise. Let’s have that debate, and let’s have Congress pass/amend a law. But let’s not have the President decide, in secret, that he can surveil US citizens without a warrant or court order. And let’s not promulgate insufficently thought out arguments about unbounded and unchecked executive wartime power to surveil American citizens who are suspected enemies of the state.
MF and other chicken littles,
You know what causes me to gag? Automatically assuming the worst about George Bush. Or ANY President for that matter. Yeah, Nixon was a rat. Given. And it took a couple of years for most people to figure out Jimmy Carter was “challenged” in the leadership department.
Congress, on its own initiative, can forbid the use of funds for this program–ANY TIME IT WANTS. Funny how no one on the Hill has floated that particular trial balloon.
I’m personally sick of the lawyerly bullshit floating around–because after some of the things I’ve read–particularly MF’s assertion yesterday that it’s just easier for the Prez to lie to Congress than to the almighty FISA JUDGE. Because we all know that if you are intent on abuse then lying becomes more difficult if the recipient wears a robe. You want chips with that delusion/parsing/silliness?
Christopher Hitchens wrote that his moment of truth with the antiwar crowd was the earnestness with which they believed John Ashcroft was a bigger threat than Osama bin Laden. Guess where this debate now rests? Way past where the pavement ends in the moonbat suburbs of the paranoia over Ashcroft.
You guys are off in the ozone to “save” us from…SNOOPING ON TERRORISTS. Read that last sentence until you understand.
Actually, what I’m arguing is that under YOUR HYPOTHETICAL, the President would still have a way around what is an unreasonable attempt to constrain his power to wage war and defend the homeland. But I have also argued—as has the DoJ—that what they are doing (from what I’m able to tell) is either exempted under FISA by way of AUMF, or does not run afoul of FISA at all. We simply don’t know the specifics.
(SMG is right, in other words: it doesn’t have to be either or, and the President is asserting his authority in absense of any concrete proof that he’s had to use it. This is one way to protect the secrecy of the methods used).
And anyone at this juncture pretending this hypothetical dispute is not a separation of powers argument (and not a dispute about civil liberties) is either dishonest or delusional.
Practically and legally, I have no doubt that the laws have been followed and that the program is not in some obvious violation of established law or precedent.
Wishbone, you don’t seem to understand what I was saying. It’s not easy for the President or his advisors to lie to Congress. It’s a crime. So there’s a major deterrent.
I was talking about potential funny business in individual cases of electronic surveillance, not in the kind of broad-based overview you might give to Congress or a Congressional subcommittee. If some sort of shift supervisor is the only person who has to be convinced that the surveillance of a US citizen is reasonable, then the potential for abuse—i.e., spying for an illicit reason—is much higher. If a lawyer for the NSA has to swear, under oath, in front of judge, and provide evidence that is kept in a sealed record, that someone is suspected of being linked to terrorism, the potential for abuse is much lower.
In other words, when a neutral magistrate, from another branch of government, who can’t be fired, checks the box next to “evidence sufficient to warrant wiretap on US citizen” the odds are much greater that the evidence is indeed sufficient than when the same box is checked by some NSA mole who fills a prosecutorial/investigative role and whose job depends on the President.
Read some history and jurisprudence on the Fourth Amendment if you’re still unconvinced.
Our intelligence agencies need the same oversight as that of a new hire at McDonalds at this point. Their performance has been piss-poor against a bunch of muluhjuhwhamba little shites. They’ve proven they know less about the middle-east than my blind, dead grandmother. The only aspect they’ve been useful towards is in providing propoganda for our enemies!
I’d rather my tax dollars were cast into an fiery abyss, than to have a bunch of useless retarded agents of questionable patriotism shadowing my phonecalles.
Jeff:
Not sure what this means:
Something about the double negative screwed me up. I’m only saying this is clearly a separation of powers issue with tangential, yet important, civil liberties issues.
In any case, let’s get to the crux of it. I’ll ask again: If Congress explicitly amended the AUMF to read, “nothing in this authorization shall be construed to allow for electronic surveillance not in compliance with FISA,†would the President still be able to authorize warrantless surveillance of US citizens?
Jeff?
“evidence sufficient to warrant wiretap on US citizenâ€Â
Do you not detect yourself moving the goalpost a little bit?
Any person making a call out of the US is not a US citizen or even a US Person.
Collecting a phone number (and possibly disgarding it again) is not a wiretap.
We know warrants were issued, we don’t know precisely when.
Art, I’ll wager a much larger sum than currently is in your bank account that no one gives a rat’s ass about your phone calls.
And holding people in contempt for doing their jobs in this case (as opposed to those who leak) is the lowest form of hypocrisy if you really believe in freedom. Because, yeah those guys at the NSA are all rats. Idiot.
Emphasis mine.
And there it is, leftard–your rhetoric is showing. Try and put some “nice” in your description of spooks to make your position sound more reasonable, because they’re SCARY.
Boo. I’m done.
MF–You can argue for a narrow reading of the FISA statute, but the Appeals Courts have answered with fewer constraints than you’re insisting–and you also continue to argue based on hypothetical details. Terrific. Your prerogotive. But it’s not persuasive–even if you repeat it for a month–because you’re asserting that the President doesn’t have authorities that every president back to FDR has claimed.
And I just love the line that states that bad actors in NSA could be listening in on your phone call. Again, herewith the “making the perfect the enemy of the good” argument. Again, not serious. Life is full of bad actors, so get over yourself. There are bad police officers–we don’t halt law enforcement activity because there might be bad cops. Based on such an argument I should require that you’ve maintained a perfect existence on this earth, otherwise you may not proffer an argument on this topic.
The remainder of your “arguments” are really bald assertions:”…unbounded and unchecked executive wartime power…” etc., etc. Such claims are hysterical. Foreign intercepts and intelligence gathering thereon are a component of executive power, Congress retains the power of the purse, and we hold what are called elections as a check on both legislative and executive power.
But good luck getting our attention by banging your shoe on the podium.
Cheers.
One begins to wonder what the current histrionic Mrs. “won’t someone think of the telecom!” Lovejoys thought the word “chatter” stood for during the 9/11 hearings…
the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers
MF wrote:
Actually, the argument requires putting Article II of the Constitution above a statute, as the Constitution requires(Art. VI, sec. 2, Marbury v. Madison, etc.
Please note the argument, such as it is: (1) the FISA court must be used; (2) the observation of the FISA Court of Review is “preposterous.”
The FISA Court of Review also noted that every court to have decided the issue has recognized that inherent authority; those courts must be completely wacky also. The Supreme Court going out of its way to distinguish foreign surveillance in its fourth amendment jurisprudence seals the argument that the entire US judiciary is completely unhinged. Which is an odd argument from those who insist that the courts must be involved in the process.
MayBee:
Huh?
Well, not every person making a call from inside the US to outside the US is a “US person,” but certainly lots of US persons are making international calls from inside the US.
And simply making an international call does not eliminate US person status, see FISA section 1801: “a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States…”
As noted previously (on another thread), FISA covers electronic surveillance that results in the acquisition of information regarding even the existence of the communication. Certainly, insofar as the acquisition of the recipient phone number is, by definition, a record of the call itself, then collecting that number violates FISA (so long as other definitional requirements are met, too).
And, actually, I’m pretty sure we know warrants were not issued. That’s wherein the controversy lies.
Stephen Donegal: Why can’t we have our phone calls monitored in a manner that protects civil liberties?
MF: And despite what Jeff and rls claim, I’ve never argued that my “‘rights’ have been violated by the Emperor Bushâ€Ââ€â€I’ve only argued that they could be violated, and I’d never know about it.
SteveMG: They simply (but it’s not-so-simply, of course) want judges to approve of the measures.
Let’s ABC this.
The NSA has a list of phone numbers outside the US that known Al Qaeda operatives have used.
A number from that listing makes a call into the US. Maybe Abdul Al Jihadi is calling Auntie Jasmin in Dearborn to find out how her ulcers are doing. If that’s so, nothing happens. There are no “code words” from the terrorist database that will trip the monitoring.
However, if Abdul Al Jihadi is calling an Al Qaeda CELL in Dearborn and mentions certain words in any of several languages, the monitoring is tripped. And it happens immediately.
You would want it so that the NSA has to interrupt the call and say, “Wait, Mr. Al Jihadi… could you please hold up your conversation for a moment while we get a warrant to listen in?”
And that makes no f***ing sense!!!!
Worst of all, the jihadis are now aware, thanks to the New York Times, that their calls are being monitored via a keyword database.
So now they start using codes that we are going to have to decrypt and completely rebuild the keyword database.
Thank you EVER so much, New York Times
And it’s about damn time DOJ is looking into this treason!
Exactly!! We also do not know whose calls were monitored, what the monitoring consisted of, and if any further surveilance was conducted and whether the further surveilance was conducted under a FISA warrant. What we don’t know by far outstrips what we know.
AHA!
But we do know that Chimpy McHitlerburton is a bad guy. So it is safe to say that every negative assumption we make is inherently true.
Which seems to be exactly the argument the moonbats are making (stripping away the thesarus abuse.)
You would want it so that the NSA has to interrupt the call and say, “Wait, Mr. Al Jihadi… could you please hold up your conversation for a moment while we get a warrant to listen in?â€Â
FISA allows a 72 hour window for warrantless searches or monitoring under such circumstances.
So, NSA can listen in for 3 days, determine what’s going on (or at least determine that it’s a conversation of interest), then go to the FISA judge and submit a request for warrant(s).
SMG
SMG
But if the automatic triggering isn’t tripped and nothing more than the call itself is logged, does that violate someone’s “rights”?
Are traffic light cameras constitutional? Cameras on ATMS that capture part of the pubic sidewalk?
HELLs bells, if even the mere collection of phone numbers of interest is a “violation” what the f*ck are we doing with an “intelligence” system at all?
Why not just close down Washington DC, don our burkas and figure out in what direction Mecca is?
correction—intelligence gathering system
But if the automatic triggering isn’t tripped and nothing more than the call itself is logged, does that violate someone’s “rights�
No, the contents of the conversation or communication must be “acquired” for there to be a violation (what does “acquired” mean? got me). I guess if NSA listens in and doesn’t “acquire” the contents, it’s okay.
And if the intercepts are directed outside the US to a foreign government that “acquires” the contents, is that okay?
One hypothesis was that this technology forwards critical contents outside of the country. Another nation examines it and then forwards the intelligence back to the US. So, technically the government isn’t acquiring the contents. Someone else is.
No evidence, AFAIK, that that is what is happening.
Check here, under Section F. It defines what constitutes “Electronic Surveillance.”
http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001801—-000-.html
SMG
You’re right, I was unclear. I should have said not every person making an international call from a US number that was previously called by a terrorism suspect outside of the country and therefore monitored in this program is/was a US Citizen or even US Person. We actually have no idea if any of them were US citizens or US persons. I’m sure some were, some weren’t.
And certainly we talked about data collection on the other thread, but that doesn’t mean data collection and wiretapping are synonymous.
I’m certain you are wrong. Warrants weren’t always issued, but they were requested and they were issued. We don’t know enough of the details to know why or when or for whom.
Charlie(Colorado) on the other thread has some excellent posts, if you haven’t read them yet.
At this point, MF, you’ve taken begging the question to a high art.
Hmmm.
You have no idea what you’re talking about.
Maybe this was addressed in a different thread, but I don’t see where monitoring my calls, or tracking my location via the GPS gadget in my Nextel phone, or scanning the RFID chip in my dog’s back, has anything to do with violating my Civil Liberties. The 4th Amendment guarantees me no “Right to Privacy”, and I’m pretty sure it was the Declaration of Independence, not the Constitution, that offered me the “inalienable right” to “life, liberty, and the purfuit of happineff” (apologies to Stan Freberg).
Simply put: If the Feddle Gummint wants to watch where I go, and listen to what I say, but they don’t hinder me doing either one, then how have my Civil Liberties been violated?
Redstate is changing servers this weekend, so all the redstate linkage goes to their holiday card.
ummm…i am so, like, not getting this.
How can a bunch of people without clearances argue about classified data collection methods? None of you have a clue. and if you do have a clue, and you say sumpin’, then you are just as bad as the leakers.
but the DoJ action should be sweet. i am so looking forward to this.
MF,
There hasn’t been a successful terrorist attack since Sept. 11, 2001. Thanks to the Times, we now know why. AND SO DO THE TERRORISTS–also thanks to the Times.
Personally, I’m grateful my government is finally doing its job. I can understand the ingratitude of terrorists and collaborators; it’s yours that I find baffling.
Yes, presidents can abuse power. Nixon did. And if a week went by when the Clintons neglected to, it was surely an oversight. I’m thinking of Billy Dale, whose only crime was holding a job Hillary wanted to give to her pals. Or having her bar bouncer paw through Republicans’ FBI files. Or having every single conservative organization audited. Or…well, let’s just say I understand your concern. But not your ingratitude.
And I take issue with this:
1.) Not all magistrates are “neutral”. Would Ruth Bader-Meinhoff be “neutral” when her ACLU colleagues have, like you, already convicted Bush? And if your really concerned about civil liberties, it’s the courts who are eviscerating them, ‘Kelo’ being just one recent example.
2.)”from another branch of government”–another co-equal branch–not a superior branch. For example, no president has ever agreed to be bound by the War Powers Act…criminals all?
3.) “who can’t be fired”–and that’s the problem. We haven’t impeached a judge for outrageous judicial conduct in two centuries. And they’ve become arrogant.
4.) “checks the box next to “evidence sufficient to warrant wiretap on US citizen†the odds are much greater that the evidence is indeed sufficient”–this is the ultra-uber legalism that built the Gorelick Wall and why Bill Clinton turned down Osama on a platter THREE different times. This is war, not crime.
5.)”than when the same box is checked by some NSA mole who fills a prosecutorial/investigative role and whose job depends on the President.” Those “moles” are keeping you alive and free. But I wish the president could fire the ones who leaked this.
But here’s my real question; since this post is about the DOJ investigation of intelligence leaks helpful to our enemies, could you please bring your considerable legal talents to bear and explain this statute to us:
Title 18, Pt. 1, Ch. 37, #793:
“(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it…Shall be fined under this title or imprisoned not more than ten years, or both.”
Seriously, man. You’re the expert. Tell us what this law–passed by Congress!–means in this case. This should be interesting.
Steve:
So is it your contention that caller will sit there for three days waiting for the warrant?
Call forwarding, throw away phones, bogus emails..it is unliekely the founding fathers imagined such a world.
But we do know that a letter to a British General found on your person could get you hanged for spying..Lincoln suspended many civil liberties and FDR locked up all the Japanese Americans in camps and somehow the Union survived.
I think some reporters for the NYT and WaPo should be compelled to testify and some turncoat agents should go to jail.
I expect the NSA to monitor communications between terrorists. And I consider it a violation of my right to life and liberty to live at the mercy some dipshit terrorist who is given free reign to plot attacks by partisan Democrats or absolutist libertarians.
If the NSA can not do its job to protect the American people why not just shut it down? I am sure the Democrats in Congress would be willing to filibuster the issue and shut off funds.
“Leaks by unelected and entrenched foreign policy and intelligence bureaucrats (or perhaps elected members of the Congress?) meant to undermine the President in a time of war must carry with them consequences. “
What about the ones meant to support the president, or say, in a time of peace, or both?
FWIW, the MoveOn mob I counterprotest every Friday left their “Spy in Chief” placards home this week, so I think this outrage against our precious liberties has reached its sell-by date…
I heard this story on an ABC News radio broadcast Friday morning and they pulled the classic journalistic maneuver:
1. interview a professor (couldn’t find a national politician) who sees this investigation as having a “chilling” effect when coming from a secretive central government.
2. reiterate the President’s statement that the program is legal, necessary, and effective (for the 100th time).
I get a kick out of this because even I start to get sick of Bush’s pronouncements on the program after hearing it repeated verbatim hundreds of times by the newsies. And WTF does anybody get concerned about the Justice Dept is investigating the leak of a secret program?
That is the next push: dissent is being chilled by the Bushitler regime when the media can’t tease national security secrets out of sympathetic (stupid) bureaucrats and congressional staff.
@Jon Ego: And WTF does anybody get concerned about the Justice Dept is investigating the leak of a secret program?
I’m having a problem following the garbled grammar in this sentence.
Are you saying that it doesn’t matter that there was a leak because it’s now being investigated???
I hope that’s not what you’re saying, because we now have much greater odds of a successful terrorist attack in the US because of this leak.
Forbes:
This is a horrible analogy, not least because when a bad actor cop abuses his authority, the victim is in the know and has a host of legal remedies at his disposal. If a bad actor NSA employee abused his authority, and listened to every word the victim said on a phone, he victim’d never even know about it and would never be able to vindicate his rights. That’s a dispositive difference.
Agreed; but intelligence gathering that targets American citizens in America is subject to the constraints of FISA and the Fourth Amendment, so the above statement doesn’t get us anywhere. And if the President gets to ignore both simply by saying “foreign intelligence gathering,” then neither Congress nor the Constitution need exist.
Indeed they do, but if you had it your way, and those leakers had never leaked, then [the vast majority of] Congress and all of the American people would have never even known about the program, let alone whether it was being used improperly. So how could we possibly act as a check?
Thanks for my first big laughs of the new year. It is fun to watch so many stupid, frightened people try to sound all smart and brave. Don’t worry, I am sure Big Daddy will protect you from all the big bad monsters in the world. The Founding Fathers would be so proud of their progeny.
I am starting to see this pop-up more often. Is this the new lefty meme? That only a coward fights back because he is afraid of letting a bully whip his ass? Yeah, that is gonna fly.
Nice catch. B Moe, and yes, they are getting easier to smell out, aren’t they? Kinda like something you stepped in while going out to get the paper, and about as relevant.
MF: Agreed; but intelligence gathering that targets American citizens in America is subject to the constraints of FISA and the Fourth Amendment, so the above statement doesn’t get us anywhere.
You obviously have no clue what this hoo-raw is about.
Which American citizens who receive calls from Al Qaeda do you think are innocent and need to be protected by the law.
The NSA simply does not have the TIME to monitor all calls coming into the US from outside the country. In fact, they don’t even have time to monitor all the calls coming into the US just from that list of Al Qaeda phone numbers that they are listening for. The monitoring isn’t kicked in until the keyword database identifies certain words used by persons calling from those known Al Qaeda numbers.
So you’re saying that a phone call coming in from outside the country to somewhere in the US, with comments such as, “Go to Chicago and bomb the Sears Tower,” (for instance)–which is the ONLY type of call that will trip the keyword database monitoring!– should not be listened to? Or interrupted with, “Excuse me, Mr. Al Qaeda Operative, will you please hold off this call until we can get a warrant to listen in?”
Are you out of your f***ing mind?????
Are you more interested in protecting the civil rights of terrorists than in protecting the lives of you fellow citizens?
If so, you ARE out of your f***ing mind!!!
“Which American citizens who receive calls from Al Qaeda do you think are innocent and need to be protected by the law. “
Everyone is protected by the law. No one is above it.
Wow, what happened to all you he-men defenders of liberty? If all it takes is a terrorist attack to make you run screaming to the safety of your Dear Leaders arms, then we are truly lost. Remember someone called Patrick Henry who said “Give me liberty or give me death?” He must be rolling in his grave now, seeing how willing you are to give up the freedoms he and others fought so hard for. And for all you who are going to scream “He was just snooping on terrorists…” remember that FISA grants the ability to institute warrantless wiretaps as long as within three days after the start of the tap a FISA judge authorizes. the FISA court almost never turns down a warrant, and even if they did most taps are over by three days anyway. So why didn’t the Bush administration even bother with this basically automatic approval. Either a) the taps were so egregious that even the FISA court wouldn’t have allowed them, i.e., they were domestics taps of US citizens, or b) they just believe they have to follow the law. Or both. Likely both.
Zen_Less and Nonpussy seem to be pulling their comments out of the same play book.
Think Progress must have sent out an email or something.
Oddly, the same argument the ‘Progressives’ try to use to take away our guns, as in ‘the founding fathers never foresaw the invention of assault weapons’, actually seems to work, here with this wire-tap business.
Our founding fathers were well aware of weaponry, and would have gladly embraced and understood rapid firing, high capacity weapons. BUT! Electricity was little understood, and the electronic ability for miscreants to do mischief with it was not even imagined, in those days of expensive paper and sailing ships, where a letter was expected to take as much as a year to arrive.
Had they known, I believe that they would have had no trouble at all allowing the monitoring of foreign agents and their ‘American’ sympathizers, and their immediate hanging upon discovery, and a fair and speedy trial.
This is called “having a pre-9/11 mindset.”
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