Here. Today I’ll let Powerline do some of the heavy lifting on the NSA “domestic spy” story so that I can get out of the house for a bit. Here, they raise some interesting points about the rather directed coverage of the story from WaPo , Newsweek, and, naturally NYT. An excerpt:
The most deeply misleading aspect of the Times article […] is its treatment of the federal court precedents on the issue of Presidential authority. The chief embarrassment faced by those who try to claim that the NSA’s international surveillance program is illegal, is the fact that at least five federal appellate courts have specifically held that the President has the inherent constitutional authority to order domestic warrantless surveillance for foreign intelligence purposes–let alone the international surveillance at issue in the NSA program. The Times reporters are well aware of these precedents, in part because we have repeatedly called them to their attention. This is their fraudulent attempt to deal with this unanimous body of judicial authority:
[John R. Schmidt, a Justice Department official in the Clinton administration] noted that the Foreign Intelligence Surveillance Court of Review, made up of three federal appeals court judges, addressed this issue in 2002 and said that it took for granted that the president had the inherent constitutional authority to conduct searches without warrants. “It’s utterly indefensible for people to say that there is no plausible legal justification when the only judicial statement on this is a flat statement that the president has this authority,” Mr. Schmidt said.
Some legal analysts say, however, that the appellate court was giving its assessment of past decisions and that all of the earlier precedents examined surveillance before the 1978 Foreign Intelligence Surveillance Act, which set up wiretap laws in response to Watergate-era abuses.Note that phrase, “some legal analysts.” The Times quotes liberal critics of the administration repeatedly through the article, so why is it suddenly so coy on this critical point? Because there is no law professor in America–actually, no law student in America–who would allow his name to be associated with the Times’ indefensible characterization of the 2002 opinion of the FISA appellate court. The Times tries to suggest that that court’s statement that the President has the authority to conduct warrantless surveillance for foreign intelligence purposes lends only debatable support to the administration’s case because “some legal analysts say” that the court was only talking about precedents that pre-dated the passage of FISA in 1978; therefore, the court’s conclusion may not be operative post-FISA. That suggestion is completely untenable. The FISA appellate court specifically rejected the theory argued for by the Times:
We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.
So, on the key legal issue, the Times misrepresented the FISA appellate court’s decision, and attributed its own misrepresentation to “some legal analysts” because no legal scholar, no matter how liberal, would be caught dead asserting the position argued for by the Times. The Times’ coverage of this issue continues to be deeply dishonest. And it is worth mentioning that Lichtblau and Liptak purport to sit in judgment on the legality of the administration’s conduct, without ever noting the fact that Lichtblau and the Times itself unquestionably violated federal law by publishing leaks about the NSA program. In the world of the antique media, illegality requires no explanation if it is directed against the Bush administration.
So there we have it: just another routine morning of Bush-bashing in the liberal press. There are too many Ahabs to count, all single-mindedly hunting the same whale, hurling their harpoons into the water and gnashing their teeth in frustration at the fact that, no matter how promising the target seems, they can’t quite strike the fatal blow they are all hoping for.
See also, this companion article, which includes the observation that “Every word the Times now publishes about the NSA surveillance story is deeply compromised by a conflict of interest that the Times has yet to acknoweledge.” Such is most certainly the case, but we’ve ceased framing sedition as anything more than the price of doing partisan business—and the Times, as the information arm of the left-liberal Democrat caucus—is most assuredly protected against such implied calumnies by virtue of their status as practically elected officials.
But be that as it may.
Not a whole lot new being argued here (though it is being argued better and with more legal heft behind it), but I’ll admit that it’s refreshing not to have to make these arguments myself on a sunny Sunday afternoon, when the world outside continue blissfully apace—this despite the billions of invisible threads of the evil Bushite web of totalitarianism at this very moment coccooning the earth’s atmosphere like so much illegally spun Imperialist silk.
(h/t Terry Hastings)
– Evil Imperialist silk is of the highest quality, non-invasive to the hypo-alergenic, and preffered, and sought after, by those in the habidashery know…Countless boles of the mysterious ancient blend were shipped along the Eastern trade routes for mellinia until the pagen Jihadists, led by Shiek Hashiff Bin LurchKerry, began amBUSHing the caravans, after which the evil neocon BushMcHitler chimpies were forced to switch to spandex….. and yogurt…..
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italians!</i>
what else can ya do.
They were called the Italic people because they were not very bold.
RS – That just underlines what I was saying….
You guys are a font of knowledge.
Careful! We could end up type-casted!
::: cough ::: </i>
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Great. Now Jeff’s gonna run over budget.
Nah, Robert, I think that’s just for bold tags.
Gutenberg always worked best under pressure….
– What do you expect when you give a women a no-limit HTML card?
TW: see above
John Hinderaker is such an idiot. Jeff, as you and John should know by now, the statement above is enormously misleading. Yes, courts have held that the president has the inherent authority to engage in domestic spying for national security purposes. But, for the hundredth time, inherent authority is not the same thing as exclusive authority. The president has the inherent authority to do a lot of things. All that means is that he doesn’t have to wait for Congressional authorization to take action. It does NOT mean Congress is prohibited from passing laws regulating that area. The president’s exclusive authorities are only a small subset of his inherent authorities. The cases addressing this issue are almost all pre-FISA cases. There is simply no case law at all which suggests that FISA is unconstitutional. None. Zero. The fact that the president has some inherent authority in this area does NOT mean that Congress exceeded its authority in passing FISA. Congress routinely legislates in areas where the executive has inherent authority. Unless that legislation infringes upon the executives EXCLUSIVE authority, however, its perfectly valid.
Bottomline, Hinderaker is either clueless or he is engaged in intentional misdirection.
Anoniberal writes: “The cases addressing this issue are almost all pre-FISA cases.”
Is there a word for it when someone tries to argue against a point without realizing that their entire counter-argument was already defeated in the original point, or does the word “stupid” cover that?
Sortelli,
My point was that the pre-FISA cases are totally irrelevant because they dealt with an entirely different issue. Yet Hinderaker and others continue to assert that there are multiple cases supporting the president’s position. The reason I said “almost all” is because they rely on ONE case, the Sealed Case, that post-dates FISA. That’s the one you quote above.
And even that case doesn’t stand for what Hinderaker and others claim it does. First, the passage they quote is mere dicta in that case. Second, all the court states is the rather unremarkable observation that there are some executive powers that even Congress cannot encroach upon. The court does not even suggest, however, that FISA does in fact encroach upon any such powers. No court has held that.
So the idea that there is some mountain of case law supporting the president’s legal position is entirely disingenuous. There are exactly zero cases which so much as hint that FISA is unconstitutional.
But what about Scooter Libby?
Wow, someone tell the court that they shouldn’t have referenced all those pre-FISA cases in Sealed Case like this, then:
Your “almost-all” argument isn’t very compelling, since the one you can’t dismiss refers to all the ones you wish to.
I’m not a lawyer, AL, but it’s not quite clear to me how you can be so certain that the portion of Sealed Case that you refer to as obiter dicta is in fact just that – dicta.
I’m no lawyer either, but it doesn’t take a Barrister with 45 years of case law exerience to notice thst the Dem leadership is bailing on this leaky ship of “get Bush” effal, faster than sailors running out of a Thialand whorehouse when the SP’s show up. Even Dean the scream on FOX today had toned the wiretap rhetoric waaaaaayyyyy down. ‘Course some of his comments indicated that the Dembulbs are officially now on the 2006 campaign trail, not so much that the noodle headed al Qaeda-bats had noticed they were taking it in the PR shorts bad, just that they need to switch to campaining mode, and they have trouble doing BDS and looking electable at the same time for some unknown reason….
BECAUSE OF THE INSANITY!
Dicta simply means a part of the opinion that is not necessary to the holding. The holding of that case had nothing whatsoever to do with the issue of whether FISA encroaches on some sort of exclusive executive authority. Trust me when I say that every lawyer involved in this issue acknowledges that that line is dicta. Even the DoJ concedes this.
Wow, someone tell the court that they shouldn’t have referenced all those pre-FISA cases in Sealed Case like this, then:
Your “almost-all†argument isn’t very compelling, since the one you can’t dismiss refers to all the ones you wish to.
Sealed Case cited the previous cases for the uncontroversial proposition which they stood for, i.e., that, absent legislation, the president has the authority to engage in domestic spying for national security purposes. Neither Sealed Case nor the pre-FISA cases it cites, however, stand for the proposition that FISA is an unconstitutional encroachment on executive authority. There are ZERO cases which stand for that propisition. Hinderaker either knows this and is misleading his readers, or he’s a moron. The administration’s argument here is a longshot. Honest conservative lawyers, even if they very much believe in these arguments, will tell you that the odds of them prevailing in court are very small (see, for example, Orin Kerr).
At least we know who Hindrocket is, AL; who are you?
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That’s an odd rejection—taking something for granted. And who is the FISA appellate court? and of what precedential value are they?
AL – So Hinderakers’ an idiot because he cites pre-FISA cases and what you charcaterize as dicta in one post-FISA decision. Perhaps you can share with us the citations of the plethora of authority holding that the NSA program violates the law upon whic you and “some legal analysts” rely. We’ll be waiting.
I thought we would make it through Monday without an Anonymous Liberal post trying to save us from the Chimperator and his oh-so-EEEVILE programs.
Not so.
Net effect: The chicken gyro sounds good for lunch.
I don’t see where Hinderaker is saying that FISA is unconstitutional. And the Bush Administration is using FISA procedures where they make sense.
I don’t understand the point A/L is making.
You can’t justify those puns. You can only make a lower case for them.
Anonymous Lib,
If you’re willing to start a thread by insulting an author, it becomes difficult to take your arguments seriously.
John Hindraker’s no idiot. He has some burning insights (from last week):
The meme that the Dem’s “Manhattan Machine” is generating – a war-mongering, illegal President caught violating our “civil liberties” by an effete, probing “Erin Brokovitch-like” media-establishment – is too vulnerable to refutaton by elementary legal analysis.
This vulnerability has forced the meme’s propagators to omit or misrepresent any reportage that discredits their construct – and to set their subjective assertions against easily-verified, real facts.
It is telling that our nation’s legal scholars aren’t the ones questioning Bush’s use of the NSA-program. This debate has been propagated and sustained by interested media and politicians…and prescription-drug users with coffee-stained 1998 editions of “Web-Pages for Dummies,” and broad-band internet connections.
-Steve
Yeah, that about sums up your argument: “Trust me, cretins.” Juries must *heart* that one.
Did you graduate cum laude from the Hollywood starlet school of Law and Order? Somebody bothers to engage the actual case law, and you attack ad hominem and finish up with a trust us.
A marvelous statement of your (pre)school of legal thought, I’m sure.
Interesting backdrop for the lefties’ 4th Amendment fear-mongering: Air America founder Sheldon Drobny fantasizes about mass thoughtcrime trials. (By which I mean, he’s in favor of ‘em.)
Paul Z.,
Priceless. Let them keep braying.
People, it’s so damn obvious!
“Sunday Morning Coming Down”
Well, I woke up Sunday morning
With no way to hold my head that didn’t hurt.
And the beer I had for breakfast wasn’t bad,
So I had one more for dessert.
Then I fumbled in my closet through my clothes
And found my cleanest dirty shirt.
Then I washed my face and combed my hair
And stumbled down the stairs to meet the day.
I’d smoked my mind the night before
With cigarettes and songs I’d been picking.
But I lit my first and watched a small kid
Playing with a can that he was kicking.
Then I walked across the street
And caught the Sunday smell of someone frying chicken.
And Lord, it took me back to something that I’d lost
Somewhere, somehow along the way.
On a Sunday morning sidewalk,
I’m wishing, Lord, that I was stoned.
‘Cause there’s something in a Sunday
That makes a body feel alone.
And there’s nothing short a’ dying
That’s half as lonesome as the sound
Of the sleeping city sidewalk
And Sunday morning coming down.
In the park I saw a daddy
With a laughing little girl that he was swinging.
And I stopped beside a Sunday school
And listened to the songs they were singing.
Then I headed down the street,
And somewhere far away a lonely bell was ringing,
And it echoed through the canyon
Like the disappearing dreams of yesterday.
On a Sunday morning sidewalk,
I’m wishing, Lord, that I was stoned.
‘Cause there’s something in a Sunday
That makes a body feel alone.
And there’s nothing short a’ dying
That’s half as lonesome as the sound
Of the sleeping city sidewalk
And Sunday morning coming down.
Johnny Cash is the NSA!
– A steaming cup of coffee, and a sweet pun usually makes Sundays a lot more palatable…
When the lefties attack the “Corporate Media,” they have truly lost their minds. It would be like, say, Baathists shooting al Qaeda in Iraq, more Red on Red.
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