The DoJ has put out another 42 pg brief (PDF) defending its NSA foreign surveillance program, while still maintaining (in my admittedly very cursory skimming of the document) its inherent authority in theory to authorize and continue the program, and so in fact keeping the ongoing legal controversy in the realm of the theoretical, where civil liberty absolutists, partisan liberal Democrats, and rigorous constitutional scholars viewing the program from the perspective of potential worst-case scenarios are compelled to continue making the very public legal argument that the surveillance of al Qaeda-related communications (without any objective proof of any actual law breaking—remember, methodology, logistics, and other classified particulars that may and probably will prove exculpatory are still being held tightly in obeyance by the administration, the Dod, and the NSA counsel; and the NSA and the administration have said that they are indeed using FISA warrants under requisite circumstances) is illegal and unconstitutional, and that the President’s decision to monitor the communications from captured al Qaeda phones, notebook computers, etc., to their potential embeds in the US (where the 911 attackers had set up shot) without first acquiring a warrant—or acquiring one within 3 days under conditions—was the wrong thing to do in the aftermath of 911.
This is, of course, a political argument that is so damaging to Democrats on the issue of security that to continue making it without attaching to it as a political rider other concerns (the ubiquitous “culture of corruption” is the meme de jour) is absolute suicide; similarly, it is an argument that tacks closely with the very kinds of things many Americans say they hate—particularly, the idea that legal constraints and bad law created under wholly different circumstances to curtail wildly unrelated “abuses” (FISA was established to prevent law enforcement abuse, not to give Congress a de facto veto over executive war powers decisions granted him under AUMF) provide protections to (in this case) terrorists, when what they should be doing is erring on the side of protecting law-abiding citizens—which is precisely the mandate of the chief executive.
What is amazing to me about how this has played out thus far is that the administration, beyond being tied to the information provided in the initial leak (which doesn’t tell us much if anything about actual substantiated illegality or executive law breaking) has had to do nothing more than simply assert, in theory, its legal and constitutional powers—that is, make its case for the strengthening of the executive branch, a goal it has openly declared since taking power.
From there, Dems, civil libertarians, legal scholars of a particular bent (Jonathan Turley was on FOX again this evening arguing that the President has, “sadly,” “admitted” to a federal offense), and a host of others have stepped in with the attendant nuance to make the argument that, were national security left up to them, they would err on the side of bureaucratic uncertainty before finding it in them to act to prevent a potential large-scale attack; in effect, they have forced themselves into a rhetorical corner that says, we are more concerned with how FISA might apply to a controversial decision than we are with attacks themselves (at least, retrospectively speaking—which, unfortunately, is all we can judge their future actions by).
Again, I think the particulars (including the specifics of the technology, the logistics of the acquired intelligence, the disputed ontology of the targets, etc) will vindicate the program entirely; I also take issue with those who suggest that the President’s assertion of “inherent authority” leaves him, in effect, a rogue agent (it doesn’t, at least, not any moreso than the Constitution intended or permits him to be in war time, as Lincoln and Roosevelt indirectly asserted); the program has been reviewed by DoJ, DoD, counsel for the NSA, and the FISA Review Court, so to pretend this is a cowboy operation is needlessly hyperbolic and, frankly, absurd on its face.
Anyway, I will read the entire DoJ document sometime this weekend, but in the meantime, I’ll leave you with this excerpt, which seems particular apt as a starting point for further discussion:
Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.
[My emphasis, p 3].
Ironically, I am less concerned with the political implications of this separation of powers battle than I am with the outcome of a legal battle that is grappling, amazingly, with our “right” to effectively wage war against the kind of (ironically) postmodern medievalist enemy who uses the contingency of legal context to aid in the resurrection of an ideology that would slaughter freedom and impose by the sword theocratic tyranny. In short, we are doing battle with ourselves; but the execution of our sentence will be carried out by those whose idea of legal nuance is measured in limbs and lashes.
(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here
Hey, if the libs want to put more red tape between the good guys and terrorists, fine. But _they_ get to tell Jack Bauer.
It is funny that the dems are pulling this even as millions of Americans are tuning in for the new season of 24.
Where the president is presented as a wimp—at least in hours 3 and 4—who’s ready to cave into the terrorists.
Thank you Jack Bauer.
We has met the enemy, and he is us.
Bingo. Outside the US, POTUS (via the NSA and Bubba’s favorite ECHELON) is like unto a god. No sparrow shall fall, etc. Deal with it.
And if your comm channel crosses a US border, it’s fair game – both for us and for every other trench-coat clad big ears out there.
Ain’t life a bitch?
SB: short
if only
The executive and congress as elected branches protect and assert their authority through the political process. In this case a political confrontation on the NSA program favors the president. Expect the executive to win this one.
Whenever the Supreme Court has intervened in the other branches, it acted to constrain overreach rather than impose some policy. In the NSA case there is no executive “overreach”. Executive is doing what they have inherent authority to do absent explicit congress restriction.
If the Supreme Court acts to impose the will of congress to restrict inherent executive authority, that would be out of character for them. Even if their opinion was such that congress may have constitutional authority to regulate the activity, they would be more inclined to let that play out politically.
Alternate Dem stratedgies:
1) – Bush straps on the spurs and kicks some Jihadist butt. No further attacks since 9/11.
– Required Liberal response: Rogue President; cowbow image; overreaching; innocent Americans; domestic; infriging on Privacy; 1st and 4th amendments; Hitler/WWII internment comparisons; ACLU/et al suit; run with impeachment screed; LWMSM propaganda splash….
2) Bush whimps out and plays it politically safe. We get hit again, even if its not particularly effective, and very few get hurt or die.
– Required Liberal response: Inneffective President; failing in his duties under Art. II; failing to uphold his constitutional directives; Nation defenseless under Bush; Wreaklessly out of touch; Traitor to the country; Armageddon screed, followed by impeachment screed; LWMSM propaganda splash….
– I could practically write their talking points for them, which if critical internal party viability has anything to do with partisan predictability at every freeking bend in the road, this transparency just can’t be good for the Dems.
– Sweet Jesus. What does Rove need brain waves for, when his political foes have more tin-hats than functioning neurons.
TW: Never let a white cat cross your path, or maybe like greyish or that sort of mottled effect of grey and splashes of black on a smeared white field…. On alternate tuesdays…. with Wasabi and ginger….. (normal Liberal nuanced thinking)
(Jonathan Turley was on FOX again this evening arguing that the President has, “sadly,†“admitted†to a federal offense)
Turley has been consistent. Way too consistent from the get go for me to take his pontifications seriously—no one that stands in stone like he has, allows me to believe that he’s approaching this, or any other subject, with an open mind, nor without bias.
Perhaps I’m misreading him, but I, as does President Bush, do want to know what Al Qaeda wants to talk to people on our mainland about—his position seems to be one of preventing that at any cost.
So, post-Fitzmas, is this an indication that Rove is back in the saddle?
TW: size. What is the SIZE of that saddle?
You’re right, Jeff. FISA didn’t anticipate the potential reach or requirements of the surveillance technology that we see now and it is a woefully inadequate law on those grounds alone.
The FISA fetishists can’t possibly argue that there is a problem with the technology or even with the methodology of the surveillance itself because of what must be done to maintain the pace with real-world changes in communications. We are not going to artificially restrict ourselves in these data-mining operations just to satisfy some misinformed fantasy that innocent or uninvolved people have an absolute right to communications that will not be overheard or combed through.
Most people realize that sacrificing that absolute right was the price of entering into the mainstream of mass electronic communications. Those who do not yet realize it are deluding themselves. Maybe these are the same people who imprinted too well upon some early professorial conceit that hypothetical losses of liberty are more important than actual threats against the general welfare.
butbut butbutbut but but
GONZALEZ CONFESSED!!!!!!!!!1111!!!11
cthulhu – Its not the size of the saddle that counts….its the size of the scones of the guy sitting in it……
TW: Bush derangement she wrote
But the criminal president is listening in on our fine American citizens unilaterally. We would look so much better in the eyes of the world if we let France and Germany each have a set of earphones during the surveillance.
you are the absolute master of one-sentence paragraphs.
paging all trolls…trolls, there is someone to see you at the front desk. Usama Bin Laden has brought your talking points.
well, it was a good time in la-la land wasn’t it?
I think ol’ OB and Zarky are begining to tire of their allies here in the American left. Remember when Lincoln shipped the leader of the Copperheads to Jefferson Davis, the Confederate president refused to accept him and sent him back. If Bush were to do the same with Reid, Dean, Kerry, Pelosi, et al–I think OB and Zarky would send them back all right, with their domes in their laps.
They seemed kinda down at the MoveOn rally in Studio City Friday night. Fewer people showed up, and fewer folks honked for them…
That Osama’s such a fucken buzz-kill, man…
Suspected, or allegedly al Qaeda-related. Remember, we don’t know the details. We don’t have objective proof of that.
Turley on FOX brought to mind, oddly, the Tories we defeated in the REvolutionary War. He was like a ghost of the past, a coddled nobleman babbling on about legal niceties, never being so ill mannered to admit that bad people in the world might be trying to kill us!
Meanwhile, the poll numbers supporting the wiretaps continue to rise in Bush’s favor.
Weren’t the tories trying to kill us during htat war?
<objective proof of that.</blockquote>
It’d be such a refreshing change of pace if you’d simply clue up. Here’s a simple question for ya:
Do you know how to build atomic weapons? No? And why’s that? Because the specifics of their construction are highly classified for rather obvious reasons of national security?
And yet we know they work alright. Get with the d*mned program already.
tw: Slowly. The rate at which Actus gains useful knowledge.
<objective proof of that. </blockquote>
No, but even the leakers say that’s the way it is. Given that’s an admission against interest, I’d tend to say it’s a near-certainty.
And there you go. Actus, ball’s in your court.
Try not to drop it.
Ah, actus got the page…
How are ya feeling, buddy? Are those camel-sores on your backside? Tell Uncle Osama to be gentler next time. Did he at least kiss you?
No…well, truth be told, I wouldn’t kiss you either.
Are they? I thought it was difficult to pull off building one, but that the info is basically out there. All you need to do is get the right material and squeeze it till critical mass. And to do that you need shaped charges to blow it up in time. Not secret, but hard to pull off.
Why is it against their interest?
You’ll meet the oddest types on the internet.
Consider the ball dropped…
Because it makes the characterization of the program—as “domestic spying”—a lie. Kinda takes the wind out of the sails when the only thing most people find offensive disappears.
Or do you believe the leakers are omitting a detail that would be extremely damaging to the administration, but helpful for themselves?
And if you’ve been paying attention, the left has been using examples of politically motivated domestic spying as their evidence of how bad Bush has been—despite that having no relationship with what’s been described even by the leakers. Apparently they’re aware that accurately describing the program would eliminate the controversy, so they’re out-and-out lying about it.
Was that the leakers characterization, or the medias? And its not a lie if its done here. Its ambiguous.
The person leaking doesn’t necessarily have the interest of putting this in the worst light and getting it stopped. They could just want the admin to proceed legally. We don’t know who the anonymous leaker is, so again, its all speculation and no objective facts about it.
And everyone knows that the best way to do that is to air the administration’s actions to the NYT! Rather than proceeding legally through whistleblower protection channels.
So he’s stupid then?
Note, him leaking this to the Times really implies two scenarios…
1. To his probably limited understanding of the laws, Bush was ACTING ILLEGALLY OH NOES THOSE POOR MUSLIMS, and he acted in good faith but with little to no intelligence.
2. He, like what seems like too many in the IC these days, doesn’t like the President or his actions on some personal level. Thus, he knew what he was doing would damage the president’s efforts, and acted willing, KNOWING what he is doing.
I’d like to ASSUME our intel people aren’t stupid, thus…
Maybe you know that. I’m sure you’re correct.
The laws here are far from clear. The DOJ’s latest defense ran for 42 pages. That’s not an analysis that an intel person can make.